Civ Pro

REMEDIAL LAW – CIVIL PROCEDURES
Kwin
November 11, 2011
REMEDIAL LAW LIMITATIONS OF RULE MAKING POWER OF SC
The rule making power of SC is subject to certain limitations
Civil procedure is a part of remedial law. also provided by constitution:
1. UNIFORM FOR ALL COURTS OF SAME GRADE
REMEDIAL LAW 2. NOT DIMINISH, INCREASE OR MODIFY SUBSTANTIVE
Remedial law is the branch of law which prescribes the RIGHTS UNDER SEC 5 ART 8 OF 197 CONSTITUTION
method of enforcing ones right. These are the rights granted
to us by substantive laws. APPLICATION OF RULES OF COURT IN COURTS
Since the rules of court is a procedural law, it refers only to
There are two kinds of law based on what it provides: procedures for the enforcement of one’s right.
1. SUBSTANTIVE LAW
These are laws that creates a right in favor of a certain Where do we apply the rules of court?
person. The court.
2. PROCEDURAL LAW
These are laws that deal with the procedure of enforcing What is a court?
one’s right. These are primarily governed by rules of court. It is a body or entity vested with judicial power.
RULES OF COURT HAS THE FORCE AND EFFECT OF THE LAW JUDICIAL POWER
The rules of court are promulgated by SC. It has the force and What is judicial power?
effect of law. Judicial power is the power to settle disputes. It is the
Does SC have the power to make laws? power to hear and decide cases.
No. but they have the power to promulgate rules for the Part of which is the enforcement of the decision of the
proper enforcement of the substantive right of a person. case.
-RULE MAKING POWER OF SC -WHAT COURT EXERCISES JUDICIAL POWER

SC has the rule making power under art 8 sec 5 par 5 of 1987 One author said that judicial power is divided by several
constitution. It has the power to promulgate rules for the courts. Because if you look at the constitution, judicial
practice of law. power is vested in SC and all other courts. What are these
This is the basis for the enactment of the rules of court. other courts?
1. CA
It has the force and effect of the law and that is why it is 2. RTC
considered as remedial law 3. MTC
SUBJECTS OF REMEDIAL LAW

Remedial law is divided into several subjects:
1. CIVIL PROCEDURE
This deal with the study of procedures for the conduct of
civil action.
This is divided into three parts:
a. ORDINARY CIVIL ACTION (1-56)
b. PROVISIONAL REMEDIES (57-61)
c. SPECIAL CIVIL ACTION (62-71)
2. SPECIAL PROCEEDINGS (72-109)

3. RULES ON CRIMINAL PROCEDURE (110-127)
4. RULES ON EVIDENCE (128-133)
5. RULES ON LEGAL ETHICS
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Kwin
CLASSIFICATION OF COURTS If the court is a constitutional court, it cannot be
The different courts in the country are: abolished by congress but may only be abolished by
1. SUPERIOR COURTS and INFERIOR COURTS amendment of constitution.
In the old rules, only MTC are the inferior courts. And A statutory court may be abolished by congress.
RTC was not considered an inferior courts but a superior SC cannot be abolished by congress because it was
courts. mandated by the constitution.
But now, the concept has been changed. Other courts Congress may abolish the CA, RTC and MTC.
may be considered as inferior or superior, depending on I believe congress cannot abolish SC because it is
the standing as compared with other courts. mandated by the constitution, although they were the ones
Example. RTC can be considered a superior court if who provided for the detail. Maybe congress may modify
compared to MTC but an inferior court if compared to CA. the qualification, term of office and compensation because
The MTC can only be an inferior court. And the only real these are statutorily created. But as to the existence of SB,
superior court is SC. that is mandated by the constitution, and therefore cannot
be abolished.
2. ORIGINAL COURT and APPELLATE COURTS
Original court means it is where you originally files the 5. COURT OF LAW and COURT OF EQUITY
case. It is that court where the Here, all our courts are both Court of law and court of
If you are not contented with the decision, you will equity.
elevate it to an appellate court for a review. Courts of law are those that hear and decide cases based
Examples. Decisions of MTC will be appealed to RTC. on existing laws.
MTC is the original court and RTC is the appellate court. Court of equity decides a case purely on the basis of equity.
RTC can also be the original court and its appellate court In Art 9 NCC, if a judge cold not find a law applicable to the
will be the CA. And so on. case, he cannot refuse to decide and may use the principle
of equity. That is why we say equity follows the law.
3. COURT OF GENERAL JURISDICTION and COURT OF
LIMITED JURISDICTION 6. CIVIL COURT and CRIMINAL COURT
RTC is considered the COURT OF GENERAL JURISDICTION Our courts handle both civil and criminal courts
as its jurisdiction is very broad. It is stated in the Judiciary
Reorganization Act BP 129 – “all other cases not falling
under the exclusive jurisdiction of any other court shall be
filed in RTC.”
MTC is an example of a COURT OF LIMITED
JURISDICTION.
4. CONSTITUTIONAL COURT and STATUTORY COURT

This is as to how the court is created. A constitutional
court is created by the constitution. A statutory court is
created by statute.
The constitutional court is the SC. It is created by the
constitution through art 8.
SB is a constitutionally mandated court but not a
constitutionally created court. The constitution says that
that there shall be an anti graft court to be called SB but
the SB shall be created by law. Constitution mandates that
congress will have to enact a law that will create an SB. This
is why the composition of SC, their qualifications, the
functions and responsibilities are not found in the
constitution but are in the statue creating it.
All other courts are statutory courts, from CA down. They
are created by congress.
BP 129

Kwin
JURISDICTION
The courts, in assuming this power to decide cases must act TYPES OF JURISDICTION
on the cases on the basis of authority given to it by law. 1. GENERAL and LIMITED
The authority given by law to the court to hear and decide RTC exercise general jurisdiction
the case is what we call as JURISDICTION. The court can only MTC has a very limited jurisdiction.
act on the case if it has jurisdiction to hear and decide the There are courts that are considered to have special
case jurisdiction like family courts
Jurisdiction is derived from 2 Latin terms 2. ORIGINAL and APPELLATE

Latin terms: juris:law
Dico: to speak 3. EXCLUSIVE and CONCURRENT
“I speak by the authority of the law” Exclusive means it is only that court that tries that case.
Examples. Ejectment case can only be tried in MTC.
ERROR IN JURISDICTION VS ERROR IN THE EXERCISE OF Money claims where amount involved is more than 400k, it
JURISDICTION falls under original and exclusive jurisdiction of RTC.
Before the court decides the case, the court must have CONCURRENT jurisdiction means it can be tried in other
jurisdiction under the law. courts.
The court may commit error in the exercise of jurisdiction. So These cases may be filed in RTC, CA, SC: petition for
we must distinguish an error in jurisdiction and error in the certiorari, prohibition, mandamus, quo warranto and habeas
exercise of jurisdiction corpus. These three courts have concurrent jurisdiction.
-ERROR OF JURISDICTION 4. DELEGATED JURISICTION

Error in jurisdiction means the court assumes jurisdiction These are jurisdiction that resides in one court and is
even if it has no power to decide the case. delegated to another court.
Example. Example is the delegated jurisdiction of MTC. BP 129
The action for ejectment is to be filed in MTC. If the RTC provides that MTC has delegated jurisdiction in:
judge accepted the case and insisted on trying the case. This a. CADASTRAL CASE, LAND REGISTRATION CASES
is a clear case of error of jurisdiction, the court assumes the This originally belongs to RTC but not MTC may entertain
power to decide the case when it has no power to decide a these cases but only if:
case. 1. land registration case is uncontroverted (no opposition)
So what is the remedy? 2. value of the land does not exceed 100k (even if there is
File a PETITION FOR PROHIBITION OR CERTIORARI (grave opposition)
abuse of discretion). Avail of special civil action in CA.
b. PETITION FOR BAIL OR HABEAS CORPUS (RTC not
-ERROR IN THE EXERCISE OF JUDGEMENT available)
Error in the exercise of jurisdiction or ERROR IN JUDGMENT. In places where there is RTC but RTC judge is not around
The court has the jurisdiction to try the case but committed in petition for bail or habeas corpus.
an error in the appreciation of facts or application of law. -APPEAL DIRECTLY TO CA
This is correctible by APPEAL. If the habeas corpus case is filed in MTC because the RTC
judge is not around. The MTC judge ruled against the
-REMEDIES: petitioner and declared that the arrest is valid, where will
EIJ: certiorari or prohibition the accused appeal the decision?
EIEJ: ordinary appeal You appeal directly to the CA. The decision of the MTC in
the exercise of the delegated jurisdiction is equivalent to
the decision of the RTC.

Kwin
JURISDICTION VS VENUE ELEMENTS OF JURISDICTION/ REQUISITES FOR THE EXERCISE
J: Authority of the court to hear and decide the case OF JURISDITION:
Authority is given to the court by law 1. JURISDICTION OVER THE SUBJECT MATTER
WHAT COURT? (MTC/RTC) 2. JURISDICTION OF THE PERSON
V: Place where you filed the case 3. JURISIDCTION OFVER THE RES
WHAT PLACE? (Cebu/Mandaue or which branch) 4. JURISDICTION OVER THE ISSUES
J: If you file a motion to dismiss, ground is: For the court to acquire jurisdiction over the case, the court
-lack of jurisdiction must have jurisdiction over the subject matter and over the
V: If you file a motion to dismiss, ground is: person of the defendant. Or even if it could not acquire
-improper venue jurisdiction over the plaintiff and the defendant, it must
have at least a jurisdiction over the res or over the issues.
J: matter of substantive right
V: procedural right 1. JURISDICTION OVER THE SUBJECT MATTER
-GENERAL RULE:
J: fixed by law This is determined through allegations of the complaint.
V: may be subject to the agreement of the parties -EXCEPTION:
-rule 4 However there are exceptional cases where the court
entertains the answer as basis for the dismissal of the case
J: establishes a relation between court and subject matter on the ground of lack of jurisdiction of subject matter.
V: establishes a relation between parties If it is very clear in the allegation in the answer that the court
does not have jurisdiction over the subject matter, the court
may dismiss.
Example. In the ejectment case, the plaintiff files the case in
the MTC as he claims he is the owner of the land. Defendant
files an answer and admits that the plaintiff is an owner of
the land and that he is a lessor but he alleges that he is a
tenant on an agricultural land. The proper court is DARAB as
it has the exclusive jurisdiction to settle disputes in
agricultural land.
Example. Plaintiff files a case for a certain amount from
contract. But the defendant was able to show that they had
an employment contract. Since this is not an ordinary civil
contract but an employment contract, it should be filed in
NLRC, and not in RTC.
2. JURISDICTION OVER THE PARTIES

How does the court acquire jurisdiction over the plaintiff?
Upon the filing of the compliant.
How does the court acquire jurisdiction over the defendant?
GR: Upon service of summons upon the defendant.
EXPT: Defendant voluntarily submits himself to the
jurisdiction of the court even if he has not received the
summons
Example. The defendant filed for a motion for bill of
particulars or motion for extension of time to file answer,
before he received the summons.

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GR: If the court does not have jurisdiction to try the case, HIERARCHY OF COURTS
the proceedings in court is null and void. 1. REGULAR COURTS
EXPT: a. SC
-Case: Tijam vs Sibonghanoy b. CA
This is the PRINCIPLE OF ESTOPPEL BY LACHES c. RTC
Even if the court does not have jurisdiction but if the d. MUNICIPAL COURTS
defendant does not immediately file for a motion to dismiss 1. MTC -Municipal Trial Courts
but allowed the court to go on for an unreasonable length of 2. MCTC -Municipal Circuit Trial Courts
time, the defendant could no longer have it dismissed for 3. MTCC -MTC in Cities
sleeping on his right. -city courts outside MManila
This was civil action to recover an amount of P1900. It 4. MeTC -Metropolitan Trial Court
should have been filed in MTC. But the plaintiff filed it in -city courts in component cities of MManila
RTC. The lawyer of the defendant did not file a motion to 2. SPECIAL COURTS
dismiss. The judge decided in favor of the plaintiff a. CTA
Defendant filed appeal in CA. CA said the RTC is correct. b. SB
When the defendant was about to appeal in SC, the lawyer c. Shari’a Courts
discovered that RTC had no jurisdiction to file the case. So d. Family Court
for the first time, the defendant through his lawyer filed a
motion to dismiss under ground of lack of jurisdiction.
SC said it was too late. In order to punish the defendant
who is sleeping on his right.
However TN that the ruling in Sibonghanoy is not the GR. It

is an exception. It does not change the fact that if the court
does not have jurisdiction to try the case, the proceedings
may still be nullified provided it was filed not too long after
it was decided.
3. JURISIDCTION OVER THE ISSUE OF THE CASE

This is DETERMINED BY THE PLEADINGS FILED by the parties:
complaint and answer. When both are filed, issues are
joined and court proceeds with the pretrial of the case.
4. JURISDICTION OVER THE RES

This is acquired by the actual or constructive seizure of the
court of the thing in question thus placing it in custodial egis,
as in the case of attachment or garnishment.
The court acquires jurisdiction over the res.
Res here refers to the thing which is the subject matter of the
controversy. It is possible that the court cold not acquire
jurisdiction over the defendant but if it acquires jurisdiction
over the res, it may proceed with the trial of the case.
When a case is filed against the defendant and he cannot be
served summons because he cannot be found, the court
cannot proceed with the trial of the case since it does not
posses the jurisdiction over the defendant. But if it has
attached or property properties of the defendant, the court
has now acquired jurisdiction over the res. It may now
proceed with the trying of the case.

Kwin
JURIDICTION OF THE REGULAR COURTS the SC.
A. JURISDICTION OF SC However, only the SC may make such exceptions.
I. JUDICIAL POWER OF SC It s a question of fact when it involves WON the parties are
1. ORIGINAL JURISIDICTION OF SC telling the truth.
- cases filed directly in SC as an original action.
-POWERS OF SC ART 8 OF CONSTITUTION: 3. OTHER CASES FALLING UNDER THE JURISDICTION OF SC
1. cases affecting ambassadors, consuls, and ministers a. SOLE PREROGATIVE TO REVIEW THE DECISIONS OF THE
2. petition for certiorari CONSTITUTIONAL BODIES
prohibition There are three constitutional commissions: COMELEC,
mandamus COA, CSC.
quo warranto All these three exercises quasi judicial functions. The
habeas corpus decisions are appealable directly to the SC.
However an amendment was introduced (BP129 as
2. APPELLATE JURISDICTION OF SC amended by RA 7902). This vests appellate jurisdiction to CA
-power to review, revise, reverse, alter or modify on appeal over judgment of CSC and Central Board of Assessment
or by way of certiorari as the rules of court may provide final Appeals (CBAA).
judgment and orders emanating from the lower courts So decisions of CSC are now appealable to CA and SC. It
must first be appealed to CA before it can go to SC.
-CASES APPEALABLE TO SC
1. cases involving constitutionality or validity of law, b. SOLE JUDGE OF ALL CONTEST RELATING TO ELECTIONS
international or executive agreement, presidential decree, AND QUALIFICATIONS OF PRESIDENT AND VP AND MAY
proclamation, order or instruction or ordinance or regulation PROMULGATE RULES AND REGULATIONS FOR THAT
2. cases involving legality of tax, impost, assessment, toll or PURPOSE
any penalty in relation to it
3. criminal cases which jurisdiction of lower court is in issue c. POWER TO REVIEW THE SUFFICIENCY OF THE FACTUAL
4. criminal cases which penalty imposed is reclusion BASIS OF THE PROCLAMATION OF MARTIAL LAW OR THE
perpetua or higher SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS
5. all cases which error of law is involved CORPUS AND PROMULGATE THE DECISION WITHIN 30 DAYS.
-GR: QUESTION OF LAW II. ADMINISTRATIVE POWERS OF SC

Generally what you can appeal in SC is only questions of These powers I have discussed, original and appellate
law. jurisdiction, are what we call the judicial power of the SC
The action you will file is a PETITION FOR REVIEW ON SC also has other power not pertaining to deciding cases.
CERTIORARI UNDER RULE 45, from CA to SC. These are the ADMINISTRATIVE POWERS. The constitution
gave SC the following administrative powers:
-QUESTIONS OF LAW VS QUESTIONS OF FACT 1. assign temporarily judges of the lower courts to other
-QUESTION OF LAW stations as public interest may require
When the question elevated is a question on what law 2. order a change of venue or place of trial as interest of
should be applied in a particular case, then that is a question justice may require.
of law. 3. promulgate rules concerning the protection and
Is the law applied by the CA or the lower court the correct enforcement of constitutional rights
law? Is the interpretation of law by CA pr lower court a 4. promulgate rules on admission to practice law and
correct interpretation of the law? concerning IBP.
-QUESTION OF FACT -Only SC has the power to determine who will be admitted
If the question is a question of fact, normally the SC will not to legal profession
entertain it. These are questions which involve the 5. power to appoint all officials and employees in the judiciary
calibration of the evidences presented by both the parties. -Done in accordance with the civil service law
Normally the parties will have conflicting versions of the
facts of the case. They will present evidence to prove such. III. LIMITATIONS ON THE POWER OF SC
The court will be asked to weigh the evidences. The findings Constitution provides for limitations of the power of SC.
of the trial court are called FINDINGS OF FACTS. If you
question the findings of facts, you are elevating a question
of fact.
It may be reviewed by the CA. When the CA affirms the
findings of the RTC, normally, you may not raise the issue in

Kwin
IV. LIMITATIONS ON CONGRESS ON LAWS ON THE B. JURISDICTION OF THE COURT OF APPEALS
JURISDICTION OF SC -HISTORY OF CA COMPOSITION
There are also limitations also addressed to congress: -COURT OF APPEALS
1. congress shall have the power to define, prescribe and CA was created by the Judiciary Reorganization Act of 1948.
apportion jurisdiction of various courts but may not deprive Later, the composition and name was changed to IAC
the jurisdiction of SC in sec 5 art 8 (Intermediate AppelLate Court) in 1981 pursuant to BP 129
They cannot alter the power of SC under the constitution., Judiciary Reorganization act.
that will be a violation of separation of powers
2. no law shall be passed increasing the appellate -INTERMEDIATE APPELLATE COURT: 50 MEMBERS (BP 129)
jurisdiction of the SC without its advice and concurrence The name of CA was changed to IAC. It was composed of 1
-Art 6 sec 30 of 1987 Constitution presiding justice and 49 associate justices, for a total of 50
-Case: Fabian vs Disierto in 1998 members. It was divided to 109 divisions with 5 members
It involves the Ombudsman Act. It provides that the per decision.
Ombudsman may decide cases involving public officials.
Decisions of the Ombudsman shall be appealed directly to -COURT OF APPEALS: 51 MEMBERS (EO 33)
SC without passing CA. Later on, after Marcos was driven out of the country, Cory
SC said they cannot do that. That is violative of art 6 sec 8. decided to return the name CA. She passed EO 33
-Case: BOI reorganizing CA and restoring its own name from IAC. This
There was another case involving Omnibus Investment was on 1986. The composition was 50 associate justices and
Code that the decision of the BOI can be appealed directly to 1 chief justice, with 7 divisions, with 3 members for every
SC without passing through CA. decision.
That will be adding responsibility without their consent. The presiding justice of the CA shall be the chairman of the
That is unconstitutional. first division. Normally he is the most senior of all justices.
-COURT OF APPEALS: 69 MEMBERS (RA 8246)

On Feb 2, 1997, BP 129 was further amended by RA
8246which increased the number of members from 51 to
69.
Under the said law, the CA will be composed of presiding
justice and 68 associate justices.
The 17 divisions were increased to 23 divisions and the
original 17 divisions shall remain in metro Manila. 3 (18-20)
will be in Visayas, based in Cebu and 3 (21-24) will be in
Mindanao based in CDO.
I. ORIGINAL JURISDICTION OF CA
1. petition for certiorari
prohibition
mandamus
quo warranto
habeas corpus
-These are the special civil actions in rule 65
2. Auxiliary writs and processes WON in aid of its appellate
jurisdiction
II. EXCLUSIVE AND ORIGINAL JURISDICTION OF CA

1. PETITION FOR ANNULMENT OF JUDGMENT OF RTC

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III. EXCLUSIVE AND APPELLATE JURISIDCTION OF CA C. JURISDICTION OF RTC
1. all final judgment, decision, resolutions, orders or awards RTC is the court of general jurisdiction
of:
a. RTC and I. EXCLUSIVE AND ORIGINAL JURISDICTION
b. quasi judicial agencies, instrumentalities, boards or 1. all civil action which subject of litigation is incapable of
commissions (including SEC) pecuniary estimation
-MUST BE IN EXERCISE OF QJ FUNCTIONS, NOT Normally , if you file a claim the jurisdiction is based on the
ADMINISTRATIVE FUNCTION value.
-The power of SEC to settle disputes involving If the subject matter of the litigation does not involve
intracorporate disputes have been transferred to RTC money capable of pecuniary estimation, you file it with RTC.
-decisions of all quasi judicial bodies will be appealable to Example. Specific performance.
CA. These are enumerated in rule 43.
-QUASI JUDICIAL BODIES are administrative agencies -Case: Lotanco vs CA
belonging to the executive branch of the government but If the action of the PRC is not done in the exercise of its
vested with quasi judicial powers. They can also settle quasi judicial, but on its administrative action, the appeal is
disputes or controversies. not to the CA but to RTC.
-examples are: It falls under the category of cases not capable of pecuniary
1. HLURB estimation.
2. LTFRB Remember, under rule 43, decisions of QJ bodies are
3. BOE appealable to CA. This applies only in the decision in the
4. MARINA exercise of QJ function, not in the exercise of the
5. NLRC administrative function.
-DECISION OF NLRC
What about the decisions of NLRC and the Secretary of 2. all civil action which involves title to or in possession of
Labor? real property or any interest therein where the amount
They are appealable directly to SC pursuant to PD 442 exceeds 20k, or 50k in Metro Manila
and BP 129. Except actions for forcible entry or unlawful detainer which
-Case: St Martin Funeral Homes vs NLRC should be tried in MTC.
However that rule has been changed by St martin This refers to real action; an action to recover real
funeral Homes. SC said that you have to observe the property. If it involves title to or possession of real property
hierarchy of courts and pass through CA, before going to or any interest therein.
SC. Example. Accion publiciana.
Decisions of NLRC are no longer appealable to SC. You
have to pass through CA first. You do it by way of -ACTION FOR QUIETING OF TITLE
certiorari under rule 65 with CA. Then you go to SC with Before an action for quieting of title was considered an
certiorari under rule 45. action that cannot have pecuniary estmation
But SC has a new decision on this. Quieting of title is a real
action. It involves title to or possession of real property or
interest therein. So the assessed value of the property is
important to determine the jurisdiction on the case.
-JURISDICTIONAL AMOUNT
Outside metro manila
20k and below MTC
More than 20k RTC
Within Metro Manila
50k or below MTC
More than 50k RTC

Kwin
3. all civil actions in admiralty or maritime jurisdiction where 7. all civil actions and special proceedings falling within the
the demand of claim exceeds 100k or 200k in Metro Manila exclusive and jurisdiction of JDRC and CAR
(now! 300k and 400k) JDRC – Juvenile Domestic Relation court
Under BP 129, the jurisdictional amount is 100k. CAR – Court of Agrarian Relation
In the old rules of court, all actions involving admiralty and
maritime jurisdiction will be tried in RTC regardless of the - JDRC – JUVENILE DOMESTIC RELATION COURT
value. Before we used to have the JDRC, a specialized court to
Now, we consider the value. 100k. It is now amended to handle Family Law cases. It was abolished by BO 129 and the
200k and further amended to 300k, pursuant to RA 7691 in jurisdiction was transferred to RTC.
1994. In Metro Manila, it was also amended from 200k to Later on, the jurisdiction of RTC to try Family cases was
400k. It is not further increased. transferred to the Family Courts by RA 8369.
RA 7691 provides that the jurisdictional amount of the RTC RA 8369 creating the Family Court, removes from the RTC
shall be increased from 100k to 200k and 200k to 400k in the jurisdiction to try family cases.
MM. This will take effect 5 years after its effectivity, which is
1999. It further provides that in other areas outside MM, the -CAR – COURT OF AGRARIAN RELATION
jurisdictional amount will be further increased to 300k 5 CAR – Court of Agrarian Relation exercises exclusive
years after 1999. So by 2004, the jurisdictional amount jurisdiction on disputes between agricultural tenants and
outside MM is 300k. landlords. This was later on abolished by BP 129, Judiciary.
The power of CAR was transferred o RTC
-JURISDICTIONAL AMOUNT Later on a new body was created by RA 5627
Outside Metro Manila Comprehensive Agrarian Reform law which created a special
300k or below MTC body to try disputes. The special body is called DARAB.
More than 300k RTC Pursuant to RA 5627, the power of the RTC to hear case
Within Metro Manila was transferred to DARAB.
400k or below MTC But RTC was not totally divested of its power by the
More than 400k RTC Agrarian reform Law. Because the power of the RTC to
DETERMINE THE JUST COMPENSATION is still with the RTC.
Also, all cases involving the IMPOSITION OF PENALTY
4. in all maters of probate both testate and intestate where under the Comprehensive Agrarian Reform Law would be
gross value of estate exceeds 300k and 400k in MM. filed also with RTC.
In the old rules, all matters in the probate of the will is to
be tried in RTC (like maritime). 8. In all other cases in which the demand exclusive of interest,
Now, under BP 129, it may be filed in MTC if the amount is damages of whatever kind, attorney’s fees, litigation
300k or below. expenses and cost of the value of the property in controversy
exceeds 100k or 200k in MM (now 300k, 400k)
-JURISDICTIONAL AMOUNT -INTEREST OR DAMAGES OF WHATEVER KIND
Outside Metro Manila This refers to an action of collection of money.
300k or below MTC Example. Collection case. If you file a collection case, where
More than 300k RTC will you file it?
Within Metro Manila If the amount exceeds 300k, RTC, 300k or below, MTC.
400k or below MTC -GR: NOT INCLUDED
More than 400k RTC In determining the jurisdictional amount, you do not
include the interest, damages, attorney’s fees and expenses
5. all actions involving contract of marriage and marital of litigation.
relations However under SC circular 09-94, the provision excluding
a. annulment of marriage damages in determination of the jurisdiction of the court
b. declaration of nullity of marriage applies only if the damages incidental to the cause of action.
c. legal separation -EXPT: MAIN COURSE OF ACTION IS FOR DAMAGES
there is now a special court for these – Family Court, which If the main course of action is only for damages, then you
is still an RTC. have to include the amount of damages claimed in the
determination of jurisdiction.
6. all actions that do not belong to the exclusive jurisdiction of
any other court, tribunal, person or body exercising judicial
or QJ power

Kwin
-HOW TO DETERMINE JURISDICTION D. JURISDICTION OF MTC
Jurisdiction is determined not by the title of the complaint I. EXCLUSIVE ORIGINAL JURISDICTION
but BY THE ALLEGATION OF THE COMPLIANT. 1. Sec 33 par 1 of the Judiciary Act
-Case: Ortigas vs Herrara MTC WILL HAVE EXCLUSIVE AND ORIGINAL JURISDICTION
If the title of the case is collection for sum of money OVER ALL CLAIMS NOT EXCEEDING 300K OR 400K IN MM
amounting to 50k but the allegation therein is for specific over civil actions and proceedings, testate and intestate,
performance to return the money deposited, the case including the grant of provisional remedies where the value
should be filed not with the MTC but with the RTC. of the personal property or estate does not exceed 300k or
400k in MM
Exclusive of damages of interest of whatever kind,
II. CONCURRENT AND ORIGINATL JURISDTICION attorney’s fees, litigation expenses and cost of suit.
A. WITH CA AND SC The amount of which must be specifically alleged. Provided
1. petition for certiorari that interest, damages of whatever kind, attorney’s fees,
prohibition litigation expenses and costs shall be included in the
mandamus determination of filing fee.
quo warranto TN: When you file a case, for purposes of determining the
habeas corpus jurisdiction, you don’t include, interest, damages, cost of suit
B. WITH SC and expenses of litigation. But for purposes of filing fee, you
1. cases affecting ambassadors, consuls, and ministers include them all!(!!!)
-TOTALITY RULE
III. APPELATE JURISIDTION PVDD further that were there are several claims or causes
1. all cases decided by MTC of actions between the same or different parties embodied
These are with respect to their territorial jurisdiction. in the same compliant, the amount of the demand shall be
Such cases shall be decided on the basis of the records of the totality of the claims of all causes of actions irrespective
the case and of the proceedings had in the court of origin of WON the causes of action arose out of the same or
such as the memoranda of the case. different transaction.
-APPEAL TO CA ON DECISIONS FROM MTC
If the RTC decides the case on appeal emanating from MTC, 2. EJECTMENT CASES
the decision of the RTC may still be appealed to CA. The A. FORCIBLE ENTRY
mode of appeal is not ordinary appeal but a petition for B. ILLEGAL DETERNTION
review under rule 42.
II. DELEGATED JURISDICTION

a. CADASTRAL CASES/LAND REGISTATION CASES
1. NO CONTROVERSY
2. AMOUNT NOT EXCEED 100K (even if opposed)
III. SPECIAL JURISDICTION

a. PETITION FOR BAIL ON HABEAS CORPUS
-in places where RTC judge is not available
-in the absence of RTC judges in province, cities or
municipalities
-RULE ON APPEAL ON DELEGATED OR SPECIAL

JURISDICTION CASES
GO DIRECTLY TO CA. do not appeal to RTC because that
decision is tantamount to the decision of RTC.

Kwin
Nov 16, 2011 RULES ON CIVIL PROCEDURE
HISTORY
-RULES ON FIILING FEE Rules of civil procedure started on 1901 under Act 190 which
1. TOTALITY RULE was promulgated by the US government and the Philippine
If there are several money claims involving several parties, Commission.
the totality of the claims will determine the jurisdiction Philippine Commission enacted Act 190 OW known as Code
of Civil Procedure. This was later on replaced by the Old
2. JURISDICTIONAL AMOUNT ON PRINCIPAL CLAIM Rules of Court of 1940. This was later on replaces by Revised
In determining the jurisdiction, you exclude, interest, Rules of Court of 1964. And then it was replaced again by
attorney’s fees, damages, cost of litigation and cost of suit of the New Rules of Civil Procedure which is dated 1997.
the principal claim. So the present rule on civil procedure is based on the New
Rules on Civil Procedure of 1997 enacted by SC as part of its
3. BUT INCLUDED IN FILING FEE rule making power in civil procedure under the constitution.
Bit although these are excluded in determination in the court’
jurisdiction, they are included for purposes of determining HAS FORCE AND EFFECT OF A LAW
filing fee. The rules on civil procedure is a part of the broader subject of
remedial law. Strictly speaking, it is not a law, but it has the
-KINDS OF MTC’S force and effect of a law.
There are 4 kinds of MTC’s: This is a law that was not enacted by congress but emanated
1. MTC -Municipal Trial Courts from SC. The is because SC under the constitution has the
2. MCTC -Municipal Circuit Trial Courts power to make rules on the practice of law, rules on
3. MTCC -MTC in Cities pleadings and rules on procedure.
-city courts outside MManila
4. MeTC -Metropolitan Trial Court LIMITATIOONS ON THE RULE MAKING POWER OF SC
-city courts in component cities of MManila 1. it shall provide a simplified and inexpensive procedure for
the speedy disposition of cases
MTCC and MeTC – CITY COURTS 2. it shall be uniform in all courts of the same grade
Both were former city courts. The city courts in Manila are 3. it shall not diminish or modify or increase substantive rights
MeTC. Their jurisdiction are higher than those city outside
MM. City courts outside MM are called MTCC.
MTC and MCTC – TOWN AND MUNIPAL COURTS

There are two kinds of MTC’s in towns and municipality,
MTC and MCTC.
If the town is very big, there will be one MTC. In smaller
towns, there could be 1 MTC out of 2 or more municipalities.
We call them MCTC.

Kwin
RULE 1 GENERAL PROVISIONS -SUPPLETORY APPLICATION OF ORDINARY RULES ON
RULE 1 SPECIAL CIVL ACTION
General Provisions
However the rules provide that in the absence of a precific
Section 1.Title of the Rules. — These Rule shall be known and cited as the Rules provision, in case of doubt, the general rules in ordinary civil
of Court. (1) action may be applied by analogy
-Case: Ambeti vs CA
This involves petition for certiorari under rule 65, which
Section 2.In what courts applicable. — These Rules shall apply in all the courts, is a special civil action.
except as otherwise provided by the Supreme Court. (n)
What happens if the petitioner withdraws the petition? Is
What court applicable? that withdrawal with or without prejudice? Can he refile
All courts except as OW provided by SC the same petition after withdrawing it?
The rule 65 is silent as to the effect of the withdrawal.
Section 3.Cases governed. — These Rules shall govern the procedure to be Because there is no specific provision, SC applied by
observed in actions, civil or criminal and special proceedings. analogy the rules on an ordinary civil action, which is rule
(a) A civil action is one by which a party sues another for the enforcement 50.
or protection of a right, or the prevention or redress of a wrong, (1a, R2)
A civil action may either be ordinary or special. Both are governed by the rules Rule 50 speaks of withdrawal of an appeal. It says there
for ordinary civil actions, subject to the specific rules prescribed for a special that the decision becomes final and executory. IOW it is
civil action. (n) with prejudice.
(b) A criminal action is one by which the State prosecutes a person for an act
or omission punishable by law. (n)
(c) A special proceeding is a remedy by which a party seeks to establish a -CLASSIFICATION OF CIVIL ACTION
status, a right, or a particular fact. (2a, R2) A. AS TO APPLICABLE RULES
1. Ordinary civil action
What cases will it apply? 2. Special civil action
All cases. Civil, criminal and special proceedings
B. AS TO CAUSE
1. CIVIL ACTION 1. Real action
What is a civil action? 2. Personal action
One by which a party sues another for the enforcement or 3. Mixed action
protection of a right, or the prevention or redress of a wrong A REAL ACTION is an action to recover ownership or
possession of a real property. It involves title to or
-2 KINDS: possession of a real property. Examples are: Accion
Ordinary Civil Action Rule 1-56 publiciana, accion reinvendicatioria, ejectment.
Special Civil Action Rule 62-71 A PERSONAL ACTION is an action founded on a privity of
-ORDINARY CIVIL ACTION VS SPECIAL CIVIL ACTION contract. Example: Action for sum of money.
What makes an action special is that there are specific rules A MIXED ACTION involves recovery of ownership or
applicable to that kind of action and not applicable to any possession of real property and at the same time recover
other ordinary action. sum of money by way of damages. Example: accion
-SPECIAL CIVIL ACTIONS publiciana with damages, forcible entry with damages. It is
What are the special civil action? a mixture of a real and person action. It pertains to some
Interpleader degree to both real and personal.
Certiorari
Prohibition C. AS TO THE PLACE OF ITS FILING
Mandamus 1. Local action
Quo Warranto 2. Transitory action
Forclosure of mortgage LOCAL ACTION is an action that can be filed only a
Expropriation particular place. Example: Real action. If you want to
Contempt of court recover a property, file it in the place where the property
There are specific rules that apply only to the SCA and not or any portion thereof is located.
apply to ordinary civil action. There are peculiar rules that TRANSITORY ACTION is applied to personal actions.
apply only to that. Example: recover sum of money, enforce a right like
specific performance. You may file a personal action at the
residence of the plaintiff or residence of defendant at the
option of plaintiff.

Kwin
D. AS TO OBJECT Section 4.In what case not applicable. — These Rules shall not apply to election
cases, land registration, cadastral, naturalization and insolvency
1. Action in personam proceedings, and other cases not herein provided for, except by analogy or in
2. Action in rem a suppletory character and whenever practicable and convenient. (R143a)
3. Action quasi in rem
An ACTION IS PERSONAM is an action that binds only the RULES OF COURT SHALL NOT APPLY TO:
parties of the case, their successors in interest or heirs. 1. Election cases
An ACTION IN REM is an action that binds the whole world. 2. Land and cadastral;
The decision of the court is binding to everyone. Example. 3. Naturalization
Decision involving the status of the person. When the court 4. Insolvency
annuls the marriage of A and B the decision binds the whole 5. And other cases herein provided for
world.
An ACTION QUASI IN REM is an that binds the parties but at EXPT:
the same time binds third persons. And action in rem is 1. by analogy
actually an action in personam because it is directed against 2. in suppletory character
a particular person but the purpose if the proceeding is to 3. whenever practicable or convenient
subject the property of the person to the obligations or lien
burdening it. Example. Action to foreclose the mortgage.
When I foreclose the mortgage, it is binding between the
two of us because the contract is between the two of us. But
the moment I foreclose it and the property is sold in public
auction, whoever buys it has the right to be respected by
anyone because that proceeding for the foreclosure of
mortgage is an action in rem and at the same time and
action in personam.
An action can be an action in personal but also a real

action. Example. An action to recover a parcel of land from
you. It is an action in personam because it is binding only
between the two of us as parties to the case. At the same
time it is a real action because it involves a real property.
2. SPECIAL PROCEEDINGS
-remedy by which a party seeks to establish a status, a right,
or a particular fact
Example of SP is settlement of estate of a deeased person
and you want to establish your rights as an heir or your right
to inherit on the estate of the decedent
-ORDINARY CIVIL ACTION VS SPECIAL PROCEEDINGS

OCA: action where a person seeks to enforce his right or
protection or dred ress of a wrong
SP: a party seeks to establish a status, right or fact
OCA: 2 parties; plaintiff defendant

SP: normally no adverse party
OCA: 15 days to appeal

SP: 30 days to appeal

Kwin
Section 5.Commencement of action. — A civil action is commenced by the filing -IF COURT AWARDS MORE THAN ONE IS CLAIMED:
of the original complaint in court. If an additional defendant is impleaded in
a later pleading, the action is commenced with regard to him on the dated of
CONSTITUTE AS A LIEN
the filing of such later pleading, irrespective of whether the motion for its -Case: Sun Insurance Limited vs CA
admission, if necessary, is denied by the court. (6a) Where the court acquires jurisdiction of the claim by filing
the appropriate pleading and the payment of the prescribed
-COMMENCEMENT OF CIVIL ACTION filing fee but subsequently the judgment awards a claim not
-FILING IN COURT specified in the pleading or is specified, the same is left to
When is a civil action commenced? the sound judgment of the honorable court, the additional
The moment the complaint is filed in court, the civil action filing fee therefore shall be considered a lien on the
is deemed commenced. judgment granted by the court.
If the court awards damages more than what is claimed,
How is a civil action filed in court? then you pay.
1. By personal delivery If the court paid for damages left to the sound discretion of
2. By registered mail the court, the award of damages will be deducted from
The official method of mailing in court is registered mail. there the filing fee. The payment of the filing fee shall be
considered a lien on the amount of awarded to you b y the
-PAYMENT OF THE FILING FEE court.
But in subsequent cases, SC clarified. A civil action is not
considered commenced by filing of compliant in court but -PAY FILING FEE FOR THE PRINCIPAL ACTION
from the moment you pay the filing fee. -Case: Tacay vs RTC
Payment of filing fee is the operative act that commences Case is recovery of real property with damages.
the civil action. Because if you do not pay, the complaint Plaintiff filed and paid filing fee. He did not pay filing fee for
filed is like a mere scrap of paper. the damages because he did not specify it but left it to the
-Case: Manchester Development Corp vs CA sound discretion of the court.
SC was strict when it said that failure to pay the correct SC said t is unfair if we dismiss the case if we follow the
amount of filing fee is a ground for dismissal of compliant. ruling of Manchester.
Thus action has to be dismissed and the remedy is to refile Inasmuch as the plaintiff has paid the correct amount of
it. filing fee for the principal action (recovery of land) but not
This was made by SC because many unscrupulous lawyers the filing fee for damages, the case should be allowed to go
made it practice where they do not specify the damages on.
they are asking to avoid payment of filing fee. They leave it If the court will grant damages to him, the filing fee shall be
to the sound discretion of the court. considered a lien on the award in accordance with the ruling
SC had noticed it. SC said that when you file a case, you on Sun Insurance.
have to specify the amount of damages. OW, the action is
deemed not filed and that could be a ground for the -FILING FEE PAID ON WRONG COURT
dismissal of the civil action. -Caser: Suson vs CA.
The remedy is to refile the case and pay again filing fee. If the case was filed wrongfully in a court that does not
have jurisdiction.. The plaintiff filed the case in RTC of Leyte
-ALLOW REASONABLE TO TOM PAY DOCKET FEE instead of Cebu. Leyte dismissed it. He refilled the case in
This was criticized by many sectors particularly legal Cebu.
community, prompting the SC to relax the ruling. Can he apply the filing fee paid in Leyte?
-Case: Sun Insurance Limited vs CA Sc said no. that is a different case.
SC said that it is not simply the filing of the complaint or the
initiatory pleading or the payment of the docket fee that Section 6.Construction. — These Rules shall be liberally construed in order to
vests jurisdiction over the action. promote their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding. (2a)
Where the filing of the compliant is not accompanied wit
-RULE ON THE CONTRUCTION OR INTERPRETATION OF
payment of the filing fee, the court may allow payment
RULES OF COURT
within a reasonable time but in no case beyond the
The rules shall be liberally construed.
reglementary period. The plaintiff is given a chance to
-EXPT
amend his complaint and allege and specify the amount of
However, when it comes to the reglementary period to file
damages and pay filing fee and not dismiss the case right
a pleading or to file an appeal, the rules should be strictly
away.
construed because they are necessary to the proper
administration of justice.
This is intended to avoid delay in the administration of
justice

Kwin
RULE 2 CAUSE OF ACTION Section 3.One suit for a single cause of action. — A party may not institute more
RULE 2 than one suit for a single cause of action. (3a)
Cause of Action
Section 4.Splitting a single cause of action; effect of. — If two or more suits are
Section 1.Ordinary civil actions, basis of. — Every ordinary civil action must be instituted on the basis of the same cause of action, the filing of one or a
based on a cause of action. (n) judgment upon the merits in any one is available as a ground for the
dismissal of the others. (4a)
Section 2.Cause of action, defined. — A cause of action is the act or omission by
which a party violates a right of another. (n) SPLITTING A CAUSE OF ACTION
Splitting a cause of action is dividing one cause of action into
CAUSE OF ACTION different part making each part a subject of different
Cause of action is an act or omission by which a party violates complaint.
the right of another person. Cause of action refers to the act -NOT ALLOWED
or omission of the defendant against the right of the This is not allowed. The Rules of court does not allow splitting
plaintiff. of cause of action.
When there is only one delict or wrong which causes damage
ELEMENTS OF A CAUSE OF ACTION or injury, then there should be only one case filed.
1. right pertaining to the plaintiff -EFFECT OF SPLITTING OF CAUSE OF ACTION: DISMISS
2. defendant has the obligation to respect the right If you split a single cause of action, the case can be dismissed
3. violation of plaintiff’s right to the defendant on the ground of:
4. damage is caused to the plaintiff. 1. litis pendentia or
2. res judicata
RIGHT OF ACTION
A right of action is the right of the plaintiff to bring an action SINGLESS OF A CAUSE OF ACTION
in court an to prosecute the action until final judgment -AVAILING OF ONE REMEDY
Singleness of a cause of action is determined by the
ELEMENTS OF RIGHT OF ACTION singleness of the wrong committed by the defendant, not by
1. Plaintiff must have cause of action the number of remedies given to the injured party.
2. Plaintiff must have performed all conditioned precedent to A single delict may give rise to two or more remedies. But it
the filing of the action does not mean to say that the injured party can avail of all
the remedies simultaneously or one after another
-RULES ON DETERMINING SINGLESS OF A CAUSE OF ACTION

1. A contract embraces a cause of action because it may be
violated only once even if it contains several stipulations
2. A contract which provides for several stipulation to be

performed at different times gives rise to as many causes of
action as there are violations.
Example. When you promise to pay your loan obligation by
installment. Every time you default, that is one cause of
action
3. However all obligation which must have matured at the

time of the suit must be integrated as one cause of action
In the example above, each installment is one cause of
action, but if you file a case later after several defaults, then
you are bound to incorporate the unpaid arreages into one
single case.
4. If the failure to comply with one the several stipulations in a

continuing contract constitutes a total breach, a single cause
of action for damages, actual as well as prospected arises
from such breach

Kwin
Section 5.Joinder of causes of action. — A party may in one pleading assert, in Section 6.Misjoinder of causes of action. — Misjoinder of causes of action is not a
the alternative or otherwise, as many causes of action as he may have ground for dismissal of an action. A misjoined cause of action may, on
against an opposing party, subject to the following conditions: motion of a party or on the initiative of the court, be severed and proceeded
(a) The party joining the causes of action shall comply with the rules on with separately. (n)
joinder of parties;
(b) The joinder shall not include special civil actions or actions governed by
special rules; MISJOINDER OF CAUSES OF ACTION
(c) Where the causes of action are between the same parties but pertain to -There is misjoinder of causes of action when two or more
different venues or jurisdictions, the joinder may be allowed in the Regional causes of action were joined in a complaint when they ought
Trial Court provided one of the causes of action falls within the jurisdiction
of said court and the venue lies therein; and not to be joined.
(d) Where the claims in all the causes action are principally for recovery of Example. You joined an accion publiciana and a forcible
money, the aggregate amount claimed shall be the test of jurisdiction. (5a) entry case. This is not allowed because a forcible entry case
is a special civil action which cannot be joined by an
JOINDER OF CAUSES OF ACTION aprdinary civil action.
If there are several cause of action against the defendant, can
you join them into one case? -EFFECT/REMEDY
Yes. A party may in one pleading assert, in the alternative What happens if a cause of action is misjoined? Would it
or otherwise, as many causes of action as he may have result to the dismissal of the case? What is the rule on
against an opposing party. misjoinder of causes of action?
So when there is a misjoinder of causes of action, the
CONDITIONS: remedy is not dismissal of the case but to ask the court that
(a) The party joining the causes of action shall comply with the misjoined cases be severed or separated from the other
the rules on joinder of parties under rule 3 sec 6 case.
Under rule 3 sec 6, when is there joinder of parties?
Joinder of parties is allowed only if the right of relief
should:
a. arise out of the same transaction or series of transaction
b. the questions of law and fact of the case are common to
all the parties
(b) The joinder shall not include special civil actions or actions
governed by special rules;
There can be no joinder of causes of action if one cause of
action arises out of special rules or that it is a special civil
action. This is because they are governed by special rules.
Can an ordinary civil action of recovery of real property
which is an action publiciana, with an ejectment case? Can
these two causes of action be joined?
No because ejectment cases falls under special civil action.
It is governed by special rules, which are not applicable in an
ordinary civil action.
(c) Where the causes of action are between the same parties
but pertain to different venues or jurisdictions, the joinder
may be allowed in the Regional Trial Court provided one of
the causes of action falls within the jurisdiction of said court
and the venue lies therein
So can you join a case that is cognizable by RTC and MTC?
Yes if it involves common parties and there are common
questions of facts and laws involved in these two cases.
When you join a case that is cognizable with RTC and MTC,
the joinder should be done in RTC, and not in the MTC.
(d) Where the claims in all the causes action are principally for
recovery of money, the aggregate amount claimed shall be
the test of jurisdiction.
This is what we call the TOTALITY RULE.

Kwin
RULE 3 PARTIES TO CIVIL ACTION TYPES OF REAL PARTY IN INTEREST
RULE 3 1. Indispensible parties
Parties to Civil Actions
Section 1.Who may be parties; plaintiff and defendant. — Only natural or juridical
2. Necessary parties
persons, or entities authorized by law may be parties in a civil action. The 3. Representative party
term "plaintiff" may refer to the claiming party, the counter-claimant, the 4. Proforma parties
cross-claimant, or the third (fourth, etc.) — party plaintiff. The term
"defendant" may refer to the original defending party, the defendant in a
counter-claim, the cross-defendant, or the third (fourth, etc.) — party 1. INDISPENSIBLE PARTY
defendant. (1a) Section 7.Compulsory joinder of indispensable parties. — Parties in interest without
whom no final determination can be had of an action shall be joined either as
plaintiffs or defendants. (7)
WHO MAY BE PARTIES
An indispensible party is one without whom there can be no
Who may be parties to the case?
final determination of the case. Without him the case
Only juridical or natural persons or entities authorized by
cannot continue.
law may be parties in a civil action.
So if an indispensible party is not included, the effect is
dismissal of the case.
-The parties of the case are
1. Plaintiff
2. Defendant
2. NECESSARY PARTY
Section 8.Necessary party. — A necessary party is one who is not indispensable
Section 2.Parties in interest. — A real party in interest is the party who stands but who ought to be joined as a party if complete relief is to be accorded as
to be benefited or injured by the judgment in the suit, or the party entitled to those already parties, or for a complete determination or settlement of the
to the avails of the suit. Unless otherwise authorized by law or these Rules, claim subject of the action. (8a)
every action must be prosecuted or defended in the name of the real party in
interest. (2a) A necessary party is one who is not indispensible but ought to
be joined as a party to the case in order to have a complete
PARTY IN INTEREST determination or settlement of the dispute or the claim
-MUST HAVE AN INTEREST ON THE OUTCOME OF THE CASE which is the subject matter of the action.
To be a party in a case, you must have an interest on the
outcome of the case. 3. REPRESENTATIVE PARTY
Section 3.Representatives as parties. — Where the action is allowed to be
The rules requires that every action must be prosecuted or prosecuted and defended by a representative or someone acting in a
defended in the name of the real party in interest. fiduciary capacity, the beneficiary shall be included in the title of the case
and shall be deemed to be the real property in interest. A representative may
be a trustee of an expert trust, a guardian, an executor or administrator, or a
REAL PARTY IN INTEREST party authorized by law or these Rules. An agent acting in his own name
A real party in interest is one who and for the benefit of an undisclosed principal may sue or be sued without
1. stands to be benefited or injured by the judgment of the joining the principal except when the contract involves things belonging to
the principal. (3a)
court
Representative party are those who prosecuted or defended
2. who is entitled to the avails of the suit
the case for and in behalf the case for and on behalf of the
real party in interest.
IF NOT BROUGHT IN THE NAME OF OR AGAINST REAL PARTY
Example. Attorney in fact, or you filed a case for and in behalf
IN INTEREST
of the defendant as an agent of the defendant.
If the suit is not brought in the name of or against the party in
interest, a motion to dismiss may be filed on the ground that
4. PRO FORMA PARTY
the complaint states no cause of action.
Pro forma party are those who are required to be joined as
parties in the suit as provided for in law.
Example, if you file a case against a woman, you have to
include the husband.

Kwin
Section 3.Representatives as parties. — Where the action is allowed to be Section 6.Permissive joinder of parties. — All persons in whom or against whom
prosecuted and defended by a representative or someone acting in a any right to relief in respect to or arising out of the same transaction or
fiduciary capacity, the beneficiary shall be included in the title of the series of transactions is alleged to exist, whether jointly, severally, or in the
case and shall be deemed to be the real property in interest. A alternative, may, except as otherwise provided in these Rules, join as
representative may be a trustee of an expert trust, a guardian, an executor or plaintiffs or be joined as defendants in one complaint, where any question of
administrator, or a party authorized by law or these Rules. An agent acting law or fact common to all such plaintiffs or to all such defendants may arise
in his own name and for the benefit of an undisclosed principal may sue or in the action; but the court may make such orders as may be just to prevent
be sued without joining the principal except when the contract involves any plaintiff or defendant from being embarrassed or put to expense in
things belonging to the principal. (3a) connection with any proceedings in which he may have no interest. (6n)
REPRESENTATIVE AS A PARTY PERMISSIVE JOINDER OF PARTIES

-RULE: INCLUDE THE BENEFICIARY IN THE TITLE AS A REAL Joinder of parties is permissive. Several parties may join
PARTY IN INTEREST together in one case.
Where the action is allowed to be prosecuted and
defended by a representative or someone acting in a -CONDITIONS:
fiduciary capacity, the beneficiary shall be included in the Two or more persons may join together as plaintiffs or
title of the case and shall be deemed to be the real property defendant PVDD the following conditions are present:
in interest. 1. there is a right to relief in favor or against the parties joined
When you file a case because you are authorized by the in respect to or arising out of the same transaction or series
real party in interest, by virtue of special power of attorney, of transaction
you have to state in the title of the case that you are only an 2. there is a question of law or fact common to the parties
attorney in fact and you have to state the name of the joined in the action
principal because he is the real party in interest.
-EFFECT OF NON COMPLIANCE This is what I have mentioned in relation to causes of
What happens if you file the case in your name without action where we said that causes of actions may be joined
mentioning your principal? PVDD you have complied with the conditions on joinder of
That is a ground for the dismissal of the case because you parties.
are not a real party in interest. It is your principal who is the
real party of the case.
Section 7.Compulsory joinder of indispensable parties. — Parties in interest without
whom no final determination can be had of an action shall be joined either as
plaintiffs or defendants. (7)
Section 4.Spouses as parties. — Husband and wife shall sue or be sued jointly,
except as provided by law. (4a)
INDIPENSIBLE PARTY
SPOUSES AS PARTIES Indispensible party is one who should be impleaded as a
-GR: SUE OR BE SUED JOINTLY party because without him, there can be no resolution of
-EXPT: AS PROVIDED FOR BY LAW the case. His presence in the case is a must. He must be
Exceptions are found in the Family Code joined in the suit for without him there can be no final
Examples. determination of the action.
1. When it involves exclusive or paraphernal property of the
wife. COMPULSORY JOINDER OF INDISPENSIBLE PARTY
2. When the spouses are governed by complete separation of Joinder of indispensible party is compulsory
property regime Examples.
1. Action for partition
Section 5.Minor or incompetent persons. — A minor or a person alleged to be All co-owners are indispensible parties. OW that is fatal to
incompetent, may sue or be sued with the assistance of his father, mother, your petition.
guardian, or if he has none, a guardian ad litem. (5a) 2. Action for annulment of partition
All heirs must be impleaded
2. Action for recovery of land
The person who claims ownership of the land adverse to
you is the adverse party and not the one in possession
thereof.
Example. Your land was sold by your friend while you are in
US. When you returned, the land was already in the
possession of the buyer. You filed a case against your friend
who sold your land. Should you include the buyer? YES. He is
now the one in possession of your land.

Kwin
Section 8.Necessary party. — A necessary party is one who is not indispensable Section 10.Unwilling co-plaintiff. — If the consent of any party who should be
but who ought to be joined as a party if complete relief is to be accorded as joined as plaintiff can not be obtained, he may be made a defendant and the
to those already parties, or for a complete determination or settlement of the reason therefor shall be stated in the complaint. (10)
claim subject of the action. (8a)
UNWILLING CO-PLAINTIFF
NECESSARY PARTY If there is a party that ought to join you as a plaintiff but
A necessary party is one who is not indispensible but ought to refuse to join you as a plaintiff, what will you do?
be impleaded if you want a complete determination of the This is what we call, unwilling co-plaintiff.
case. If the consent of any party who should be joined as plaintiff
Examples. can not be obtained, he may be made a defendant and the
1. Action for collection of the debt filed by the creditor reason therefor shall be stated in the complaint.
against the surety, the principal debtor is a necessary party.
You may file the case against surety without impleading the Example. You are a co-owner of the party and it is being
debtor because they are solidarily bound. claimed by a third person. You want to file a case against the
2. Action for recovery of debt against the debtor, the third person but your co-owner will not cooperate with you,
guarantor or surety is merely a necessary party. you can include him as a defendant and call him an unwilling
3. Action for foreclosure of mortgage filed by the first co-plaintiff and state the reason why he was made a co-
mortgagee, the second mortgagee is merely a necessary plaintiff.
party
4. In joint obligation, a suit against only one joint debtor may Section 11.Misjoinder and non-joinder of parties. — Neither misjoinder nor non-
prosper as the other debtor is only a necessary party joinder of parties is ground for dismissal of an action. Parties may be
dropped or added by order of the court on motion of any party or on its own
initiative at any stage the action and on such terms as are just. Any claim
against a misjoined party may be severed and proceeded with separately.
Section 9.Non-joinder of necessary parties to be pleaded. — Whenever in any (11a)
pleading in which a claim is asserted a necessary party is not joined, the
pleader shall set forth his name, if known, and shall state why he is omitted.
Should the court find the reason for the omission unmeritorious, it may
order the inclusion of the omitted necessary party if jurisdiction over his
person may be obtained.
The failure to comply with the order for his inclusion, without justifiable
cause, shall be deemed a waiver of the claim against such party.
The non-inclusion of a necessary party does not prevent the court from
proceeding in the action, and the judgment rendered therein shall be
without prejudice to the rights of such necessary party. (8a, 9a)
RULE ON NON JOINDER OF A NECESSARY PARTY

-STATE NAME OF NECESSARY PARTY AND REASON
If there is a necessary party that you did not include him, you
have to state his name and the reason why you did not
include him. The court will decide if your non inclusion of a
necessary party is justifiable or not.
Example. If the necessary party has already fled from the
country, you may exclude him because that will only delay
the case because it will be difficult for the court to acquire
jurisdiction.
Example. Joint obligation of 1m of A and B. Each will be liable
for 500k each. You may file a case separately.
-COURT MAY ORDER INCLUSION OF NECESSARY PARTY
If the court finds it unreasonable not to include the necessary
party, the court may order you to amend your complaint
and include the necessary party.
-EFFECT OF NON INCLUSION DESPITE ORDER OF COURT
If the plaintiff will not obey the court, the non inclusion of the
necessary party does not prevent the court from proceeding
in the action. And the judgment therein shall not prejudice
the right of the necessary party.
The failure to comply with the order of the court shall be
deemed to be a waiver of the claim against such person. You
cannot later on file a case against him.

Kwin
Section 12.Class suit. — When the subject matter of the controversy is one of -Case: Buligbulig Kita Kamag Anak vs Sulpicio Lines (Dona
common or general interest to many persons so numerous that it is
impracticable to join all as parties, a number of them which the court finds
Paz)
to be sufficiently numerous and representative as to fully protect the One of the worst sea accidents in the history of the
interests of all concerned may sue or defend for the benefit of all. Any party Philippines. It was owned by Sulpicio lines. It collided with a
in interest shall have the right to intervene to protect his individual interest.
(12a)
tanker and it exploded. The whole sea was on fire
The relatives of the victims decided to file a case against
CLASS SUIT Sulpicio Lines. They grouped together and chose among
So if there are several person involved in the controversy and them a representatives to file a class suit.
the subject matter is common or general interest and they SC said they cannot file a class suit because their interest is
are so numerous that it is impracticable to bring them all to not common. The interest of relatives on deceased
court, then only a few of them may file a case for and onhalf passenger is not the same as those relatives of other
of that class. deceased passengers. They have to file the case individually.
Sulpicio may file for joinder of parties but that is not
-CONDITIONS FOR A VALID CLASS SUIT compulsory.
1. subject matter of controversy is one of common or general
interest -Case: Oposa vs Factoran
2. parties are so numerous that it is impracticable to bring all Intergenerational responsibility.
of them to court Oposa filed a case against DENR Sec Factoran for and in
3. a number of them which the court finds to be sufficiently behalf of children duly represented by their parents to
numerous may sue or defend for a benefit by all cancel all existing timber license and impose a total log ban.
They argued that they are suing for protection of
A class suit happens when there is a class or group of people environment for the future generation.
who are bound together by a common interest. SC said that this is a class suit. The noble idea here is that
Examples. the minors were allowed to sue for and in representation of
1. When you question a tax law, all persons affected by the future generation based on the concept of intergenerational
imposition of a tax can belong to one class and a class suit responsibility insofar as the balance and healthful ecology is
may be filed. concerned.
2. If a law is enacted by congress and that law will affect all
the sugar planter of the Philippines, they may question the
Section 13.Alternative defendants. — Where the plaintiff is uncertain against
law through their officers of the Sugar Planters Association who of several persons he is entitled to relief, he may join any or all of them
of the Philippines. as defendants in the alternative, although a right to relief against one may be
-FIRST ELEMENT inconsistent with a right of relief against the other. (13a)
1. subject matter of controversy is one of COMMON OR
GENERAL INTEREST ALTERATIVE DEFENDANTS
-Case: Solo ng Bayan vs Araneta Can you file a case against two persons in the alternative?
But to be a class suit, the first element is that the subject This happens when the plaintiff is uncertain against who of
matter of the controversy is one of common or general several persons he is entitled for relief. He may join any or
interest to all the people belonging to that class all of them as defendants in the alternative although a right
Example. A group of squatters was told by the land owner to relief against one may be inconsistent from a right of
to vacate the land. And because they know that they are relief against another.
about to be evicted, they filed a case against the land owner.
They formed an association and allowed their officers to file Example. When you ship goods from Manila to Cebu. When
a case against the land owner. the goods reached Cebu, the goods were already damaged.
Is this a valid class suit? NO. You may file against the shipping company or the arrastre
company as both are just pointing fingers at each other.
This involves a large track of land in Quexon City of
Aranetas. When the Aranetas attempted to eject the
squatter, the squatter preempted the Aranetas and filed a
case to compel the Aranetas to sell the land they
respectively occupied.
There is no class suit because the subject matter of
controversy is not general or common interest to all. Each
one has an interest separate from all the other squatters.

Kwin
Section 14.Unknown identity or name of defendant. — Whenever the identity or Section 16.Death of party; duty of counsel. — Whenever a party to a pending
name of a defendant is unknown, he may be sued as the unknown owner action dies, and the claim is not thereby extinguished, it shall be the duty of
heir devisee, or by such other designation as the case may require, when his his counsel to inform the court within thirty (30) days after such death of
identity or true name is discovered, the pleading must be amended the fact thereof, and to give the name and address of his legal representative
accordingly. (14) or representatives. Failure of counsel to comply with his duty shall be a
ground for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased,
UNKNOWN IDENTITY OR NAME OF THE DEFENDANT without requiring the appointment of an executor or administrator and the
Can you file a case against someone who is unknown to you? court may appoint a guardian ad litem for the minor heirs.
He may be sued as the unknown owner heir devisee, or by The court shall forthwith order said legal representative or representatives to
appear and be substituted within a period of thirty (30) days from notice.
such other designation as the case may require. If no legal representative is named by the counsel for the deceased party, or if
There are cases entitled as “john Doe”. It means unknown the one so named shall fail to appear within the specified period, the court
defendant. may order the opposing party, within a specified time to procure the
appointment of an executor or administrator for the estate of the deceased
and the latter shall immediately appear for and on behalf of the deceased.
WHEN IDENTITY OR NAME IS LATER KNOWN The court charges in procuring such appointment, if defrayed by the
If later on the identity is known you amend the complaint opposing party, may be recovered as costs. (16a, 17a)
accordingly.
EFFECT OF DEATH ON THE PARTY TO A CASE
You have to make a distinction:
Section 15.Entity without juridical personality as defendant. — When two or more 1. ACTION DOES NOT SURVIVE
persons not organized as an entity with juridical personality enter into a If the action does not survive, the claim must be
transaction, they may be sued under the name by which they are
generally or commonly known.
immediately dismissed.
In the answer of such defendant, the name and addresses of the persons 2. ACTION SURVIVES
composing said entity must all be revealed. (15a) If the action is one that survives, he deceased party will
have to be replaced with another.
DEFENDANT WITHOUT JURIDICAL PERSONALITY
Can you sue an entity without juridical personality? -DUTY OF THE COUNSEL:
Example. You sue an entity which turns out not to be a a. inform the court within 30 days of the fact of death
corporation or partnership. b. give names and addresses of the legal representatives
They may be sued under the name where they are OW it will be a ground for disciplinary action.
generally or commonly known.
In the answer of the defendant, they will have to divulge -LEGAL REPRESENTATIVES
their names and addresses. This normally refers to the executor or administrator of the
And the plaintiff will amend the compliant. plaintiff.
-IN THE ABSENCE OF EXECUTOR AND ADMINISTRATOR
The heirs of the deceased may be allowed to be substituted
for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
Here do not think that if the plaintiff dies, the immediate
relative will be the representatives.
As between the executor and administrator of the
deceased or the immediate relatives, the executor and
administrator are preferred to be the representatives.
-EFFECT OF NON COMPLIANCE OF DUTY OF LAWYER

If there is no executor or administrator and the counsel for
the plaintiff did not inform the court, he may be disciplined
because that can cause unnecessary delay in the case.
The entire proceeding will become null and void because
when the party dies, the party loses personality over the
case.

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-RIGHT OF OTHER PARTY WHEN THERE IS DELAY OF Example. RED of an agency filed a case against a person. He
APPOINTMENT OF EXECUTOR OR ADMINISTRATOR is a replaced by the new director. It depends with the new
If the lawyer informed the court that the client died and he director if he wants to continue or not.
does not know the executor or administrator; if there is a If he wants to continue with the case, he should be
delay for the appointment, the other party (defendant) may substituted in that case.
ask the court to appoint the executor or administrator. But if he manifests that he does not want to continue, then
-COST OF APPOINTING he can have the case dismissed.
The cost of appointing a representative of the deceased
party shall be charged to the family of the deceased party.
Section 19.Transfer of interest. — In case of any transfer of interest, the
action may be continued by or against the original party, unless the
-PRIORITY OF SUBSTITUTION court upon motion directs the person to whom the interest is
The priority of substitution will be in favor of executor or transferred to be substituted in the action or joined with the original
administrator, and not the heirs. party. (20)
-WHEN HEIRS ARE ALLOWED TO SUBSTITUTE
The heirs are allowed to substitute if there is: TRANSFER OF INTEREST
1. unreasonable delay in the appointment of administrator Example.
or executor A civil case where the plaintiff sold his interest over the
2. heirs resort to extrajudicial partition property in litigation to another person while the case is
pending.
The buyer may substitute him as a party plaintiff. Or the
Section 20.Action and contractual money claims. — When the action is for original party plaintiff himself who already divested his
recovery of money arising from contract, express or implied, and the interest with the buyer may continue with the case until it is
defendant dies before entry of final judgment in the court in which the
action was pending at the time of such death, it shall not be dismissed terminated.
but shall instead be allowed to continue until entry of final judgment. A So the court will have to be informed and decide whether to
favorable judgment obtained by the plaintiff therein shall be enforced in the allow the original party to continue with the case or to let
manner especially provided in these Rules for prosecuting claims against
the estate of a deceased person. (21a) the transferee of the interest be substituted to the original
party.
DEATH OF DEFENDANT ON A MONEY CLAIM
-EFFECT: ALLOWED TO CONTNUE UNTIL ENTRY OF FINA;
JUDGMENT
This is the rule regarding the effect of death on the defendant

on a money claim
Section 17.Death or separation of a party who is a public officer. — When a public

officer is a party in an action in his official capacity and during its pendency
dies, resigns, or otherwise ceases to hold office, the action may be continued
and maintained by or against his successor if, within thirty (30) days after
the successor takes office or such time as may be granted by the court, it is
satisfactorily shown to the court by any party that there is a substantial
need for continuing or maintaining it and that the successor adopts or
continues or threatens to adopt or continue to adopt or continue the action
of his predecessor. Before a substitution is made, the party or officer to be
affected, unless expressly assenting thereto, shall be given reasonable notice
of the application therefor and accorded an opportunity to be heard. (18a)
DEATH OF PARTY TO CASE WHO IS A PUBLIC OFFICIAL

What happens if the party to the case is a public official, and
he dies, and the action is in connection with the official
function?
If the successor intends to continue the policy of his
successor, the action will continue and he will be substituted
as a party.
If not, the case will be dismissed.

Kwin
Section 21.Indigent party. — A party may be authorized to litigate his action, RULE 4 VENUE
claim or defense as an indigent if the court, upon an ex parte application and RULE 4
hearing, is satisfied that the party is one who has no money or property Venue of Actions
sufficient and available for food, shelter and basic necessities for himself and
VENUE
his family.
Such authority shall include an exemption from payment of docket and other Venue refers to the place of trial. It is the place where the
lawful fees, and of transcripts of stenographic notes which the court may action must be instituted and tried.
order to be furnished him. The amount of the docket and other lawful fees
which the indigent was exempted from paying shall be a lien on any
judgment rendered in the case favorable to the indigent, unless the court Where is the venue of an action?
otherwise provides. You have to distinguish the nature of the action.
Any adverse party may contest the grant of such authority at any time before
judgment is rendered by the trial court. If the court should determine after
hearing that the party declared as an indigent is in fact a person with Section 1.Venue of real actions. — Actions affecting title to or possession of real
sufficient income or property, the proper docket and other lawful fees shall property, or interest therein, shall be commenced and tried in the proper
be assessed and collected by the clerk of court. If payment is not made court which has jurisdiction over the area wherein the real property
within the time fixed by the court, execution shall issue or the payment involved, or a portion thereof, is situated.
thereof, without prejudice to such other sanctions as the court may impose. Forcible entry and detainer actions shall be commenced and tried in the
(22a) municipal trial court of the municipality or city wherein the real property
involved, or a portion thereof, is situated. (1[a], 2[a]a)
INDIGENT LITIGANT
VENUE OF A REAL ACTION
If a person is very poor, he is allowed to litigate as an indigent
A real action is an action involving to titles to or possession of
party.
real property or any interest therein.
If it is a real action, the venue will be THE PROPER COURT
-MEANING
which has jurisdiction over the area where the real property
An indigent litigant is one who has no money or property
involved in located.
sufficient and available for food, shelter and basic
-“IN PROPER COURT”
necessities for himself and his families.
Because now a real action can also be filed in the MTC.
The meaning has been changed now.
Before, it was only in RTC. Under the Judiciary
Before, you are qualified as an indigent litigant if you have
Reorganization Act, Par 2.
no property in that case. All you need is a certification from
If the value of the property is 20k or below MTC. More than
the assessor.
20k RTC. (!!!) (300k/400k is for money claims)
But now, you must be one who has no money or property
sufficient and available for food, shelter and basic
20k or less MTC
necessities.
More than 20k MTC
-APPLICATION Section 2.Venue of personal actions. — All other actions may be commenced and
You must have to apply as an indigent litigant. The court tried where the plaintiff or any of the principal plaintiffs resides, or where
will have to set it for hearing. The other party will have the the defendant or any of the principal defendants resides, or in the case of a
non-resident defendant where he may be found, at the election of the
opportunity to oppose your application. plaintiff. (2[b]a)
If the court finds that you have no money or property, the
court will allow you to litigate as an indigent litigant. VENUE OF PERSONAL ACTION
-PARTIES ARE RESIDENTS
-EXEMPTION What about personal action like recovery of money,
Meaning you are exempted from the payment of filing fees damages, action arising out of privity of contract, where will
and you are given fee transcripts of stenographic notes. you file the case? What is the venue for personal action?
All other actions may be commenced and tried in the place
Section 22.Notice to the Solicitor General. — In any action involving the validity
of any treaty, law, ordinance, executive order, presidential decree, rules or where: (at the option of the plaintiff)
regulations, the court, in its discretion, may require the appearance of the 1. plaintiff or any or the plaintiffs reside
Solicitor General who may be heard in person or a representative duly 2. defendant or any of the defendant resides
designated by him. (23a)
-“RESIDENCE”
When you talk of residence, it means actual and
NOTICE TO SOLGEN
constructive residence of a person
In any action involving the government, the solgen must be
-PARTIES ARE CORPORATION
notified specially if the action involves the validity of any
In the case of a corporation, the residence is its head office
law, ordinance, etc
or main office.
Section 18.Incompetency or incapacity. — If a party becomes incompetent or
-NON RESIDENT DEFENDANT TEMPORARILY STAYING IN THE
incapacitated, the court, upon motion with notice, may allow the action to PHILIPPINES
be continued by or against the incompetent or incapacitated person assisted A non resident defendant but is temporarily staying in the
by his legal guardian or guardian ad litem. (19a) Philippines may be sued in the place where he is found.

Kwin
Section 3.Venue of actions against nonresidents. — If any of the defendants does -Case: Polytrade vs Blanco
not reside and is not found in the Philippines, and the action affects the
personal status of the plaintiff, or any property of said defendant located in
The rule is that when the parties stipulated on the venue of
the Philippines, the action may be commenced and tried in the court of the the action other than those found in the rules of court, it is
place where the plaintiff resides, or where the property or any portion considered only as an additional venue in addition to where
thereof is situated or found. (2[c]a)
the parties presides unless the stipulation contains
RESTRICTIVE OR QUALIFYING WORDS which shows the
VENUE OF ACTION AGAINST NON RESIDENT DEFENDANT
intention of the parties to limit the place stipulated as the
What is the venue of action against a non resident
exclusive venue.
defendant?
RESTRICTIVE AND QUALIFYING WORDS
-WHEN ACTION AGAINST NON RESIDENT MAY BE FILED
-WITH RESTRICTIVE AND QUALIFYING WORDS
RULE: If any of the defendant does not reside and is not
You must make it clear that the venue agreed upon is the
found of the Philippines and the action affects the:
exclusive venue and therefore it must be stated there that it
1. PERSONAL STATUS OF THE PLAINTIFF
should only be in that place and not in any other case.
2. ANY PROPERTY OF THE DEFENDANT LOCATED IN THE
-NO RESTRICTIVE OR QUALIFYING WORDS
PHILIPPINES
OW if the agreement did not contain restrictive or qualified
-VENUE
word, then that may be disregarded and only CONSIDERED
The action may be tried in the place where:
AS AN ADDITIONAL VENUE.
1. THE PLAINTIFF RESIDES
2. THE PROPERTY OR ANY PORTION THEREOF IS LOCATED
-EXAMPLES
A and B entered into a contract. A is a resident of Manila. B
-NON RESIDENT DEFENDANT – NOT FOUND IN THE
is a resident in Cebu. Contract states that any action arising
PHILIPPINES
from the contract shall be filed in Manila.
The non resident defendant is one who is not found and does
When B violated the contract, A filed the case in Cebu. Is A
not reside here in the Philippines, as distinguished from the
allowed to do that?
non resident defendant in sec 2 who is temporarily out of
YES because the contract as to venue is not exclusive. It did
the country.
not contain a restrictive word tha it should be filed only in
Manila and not in any other place.
Manila is considered only as an additional venue. It does
Section 4.When Rule not applicable. — This Rule shall not apply.
(a) In those cases where a specific rule or law provides otherwise; or not prevent the plaintiff from filing it residence of any of the
(b) Where the parties have validly agreed in writing before the filing of the parties, at the option of the plaintiff.
action on the exclusive venue thereof. (3a, 5a)
-Case: Suitelines vs Teves

INSTANCES WHEN RULE WILL NOT APPLY A stipulation as to venue can be disregarded if it is
1. IN THOSE CASES WHERE A SPECIFIC RULE OR LAW
considered as contract of adhesion.
PROVIDES OTHERWISE
At the back of the ticket contains stipulation as to venue in
Examples.
fine lines. SC disregarded the provision of the contract
a. Libel
because it is a contract of adhesion.
It can be brought in the place where the libelous statement
A contract of adhesion is a contract prepared by one of the
was made or the place of the offended party.
parties and the other party is forced to agree to it.
b. Exercise of SC of its constitutional power to order a
change of venue or place of trial to avoid miscarriage of -Case: Archeho vs Floho
justice
A contract between RCPI and its customer who is a lawyer.
It contains the stipulation that all actions will be filed in
2. WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING
Quezon City.
BEFORE THE FILING OF THE ACTION ON THE EXCLUSIVE
It is not a contract of adhesion even if the contract was
VENUE
prepared by RCPI.
Jurisdiction is fixed by law and cannot be the subject of
SC said that the plaintiff is a lawyer and he is supposed to
agreement between the parties. read the contract before signing it. Suitelines case doe not
If the parties agreed that eh venue of the action shall be in
apply because it was intended to help the helpless
this place, as a GR, the agreement must be respected and
passenger who normally does not have the opportunity to
must bind them.
read the fine prints of the ticket.
-REQUIREMENTS:
1. IN WRITING
2. AGREED BEFORE THE FILING OF THE ACTION

Kwin
RULE 5 UNIFORM PROCEDURE IN TRIAL COURT November 18, 2011
RULE 5
Uniform Procedure In Trial Courts
PROCEDURE IN RTC
Section 1.Uniform procedure. — The procedure in the Municipal Trial Courts RULE 6 KINDS OF PLEADINGS
shall be the same as in the Regional Trial Courts, except (a) where a
particular provision expressly or impliedly applies only to either of said Procedure In Regional Trial Courts
courts, or (b) in civil cases governed by the Rule on Summary Procedure. (n)
RULE 6
Section 2.Meaning of terms. — The term "Municipal Trial Courts" as used in Kinds Of Pleadings
these Rules shall include Metropolitan Trial Courts, Municipal Trial Courts
in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts. (1a) Section 1.Pleadings defined. — Pleadings are the written statements of the
respective claims and defenses of the parties submitted to the court for
GR: appropriate judgment. (1a)
Rules of procedure on RTC are applicable for MTC.
Section 2.Pleadings allowed. — The claims of a party are asserted in a
Rules of procedure on MTC are applicable for RTC. complaint, counterclaim, cross-claim, third (fourth, etc.)-party complaint,
EXPT: or complaint-in-intervention.
RULES ON SUMMARY PROCEDURE The defenses of a party are alleged in the answer to the pleading asserting a
claim against him.
-applicable only to MTC, not RTC An answer may be responded to by a reply. (n)
When the civil case is filed, it is always commenced by a

complaint. It is just one of the many pleading.
The arguments are contained in pleading.
PLEADING
A pleading is a written statement of the respective claims and
defenses of the parties submitted to the court for
appropriate judgment.
PLEADINGS ALLOWED IN THE COURT

1. Complaint
2. Answer
3. Counterclaim
4. Crossclaim
5. Reply
6. Third party compliant
7. Complaint in intervention
Section 3.Complaint. — The complaint is the pleading alleging the plaintiff's

cause or causes of action. The names and residences of the plaintiff and
defendant must be stated in the complaint. (3a)
1. COMPLAINT
Complaint is the pleading that alleges the plaintiff’s cause/s
of action .
It is OW known as initiatory pleading because it is what
starts the litigation
-CONTENTS
What is found is the plaintiff’s complaint?
1. CAUSE OF ACTION
-ELEMENTS:
a. Right of the plaintiff
b. Obligation on defendant to respect the right
c. Violation of the right
d. Damage caused to the plaintiff

Kwin
Section 4.Answer. — An answer is a pleading in which a defending party sets Section 6.Counterclaim. — A counterclaim is any claim which a defending
forth his defenses. (4a) party may have against an opposing party. (6a)
2. ANSWER Section 7.Compulsory counterclaim. — A compulsory counterclaim is one which,

being cognizable by the regular courts of justice, arises out of or is
Answer is a pleading which the defending party sets forth connected with the transaction or occurrence constituting the subject
his defenses. matter of the opposing party's claim and does not require for its
-“DEFENDING PARTY” adjudication the presence of third parties of whom the court cannot acquire
jurisdiction. Such a counterclaim must be within the jurisdiction of the
There are many defendants. court both as to the amount and the nature thereof, except that in an
1. original defendant original action before the Regional Trial Court, the counter-claim may be
2. defendant in a counter claim considered compulsory regardless of the amount. (n)
3. defendant in a cross claim
4. defendant in a third party complaint 3. COUNTER CLAIM
Counter claim is a claim of the defending party against the
Section 5.Defenses. — Defenses may either be negative or affirmative. plaintiff.
(a) A negative defense is the specific denial of the material fact or facts alleged Example. The plaintiff filed a case against the defendant to
in the pleading of the claimant essential to his cause or causes of action.
(b) An affirmative defense is an allegation of a new matter which, while
enforce a claim the defendant. But the defendant says that
hypothetically admitting the material allegations in the pleading of the the plaintiff also has an obligation against him.
claimant, would nevertheless prevent or bar recovery by him. The
affirmative defenses include fraud, statute of limitations, release, payment,
illegality, statute of frauds, estoppel, former recovery, discharge in -KINDS
bankruptcy, and any other matter by way of confession and avoidance. (5a) 1. COMPULSORY COUNTER CLAIM
2. PERMISSIVE COUNTER CLAIM
DEFENSES
What are the available defenses? -COMPULSORY COUNTER CLAIM
1. NEGATIVE DEFENSE It is a counterclaim that arises out of or is necessarily
2. AFFIRMATIVE DEFENSE connected to the plaintiff’s claim.
-PERMISSIVE COUNTER CLAIM
-NEGATIVE DEFENSE A permissive counter claim refers to claim of the defendant
A negative defense is a denial of material averments of the against the plaintiff but is not connected to the subject
complaint. matter of the case.
-AFFIRMATIVE DEFENSE
It is an admission of material averments. It hypothetically -EXAMPLE: COMPULSORY COUNTERCLAIM
admits the material averments of the complaint but it sets The case is breach of contract with damages. My answer
up a defense that bars the plaintiff from recovery. said that it was not me who breached the contract but it was
Examples: you who breached the contract.
a. PRESCRIPTION In my answer, I denied the material averment in the
If the obligation arises from a contract, the prescriptive counterclaim and I made a counterclaim against you.
period is 10 years. Since my counterclaim is based on the same contract, then
b. STATUTE OF FRAUDS it is a compulsory counterclaim.
You cannot prove in court an agreement that was not
reduced in writing. -EXAMPLE: PERMISSIVE COUNTERCLAIM
c. ILLEGALITY My answer to a collection case against me for borrowing
The transaction or the contract which is the basis of money from you states that you have also borrowed money
the claim is illegal. from me, so I am claiming some amount of money from you.
d. ESTOPPEL, RELEASE, PAYMENT It is a transaction that is different from the transaction that
is the subject of you complaint. It is a permissive counter
claim.

Kwin
-ELEMENTS OF A COMPULSORY COUTERCLAIM Section 8.Cross-claim. — A cross-claim is any claim by one party against a co-
party arising out of the transaction or occurrence that is the subject matter
1. it is cognizable be a regular court of justice either of the original action or of a counterclaim therein. Such cross-claim
2. it arises out of or is connected with a transaction or may include a claim that the party against whom it is asserted is or may be
occurrence constituting the subject matter of the opposing liable to the cross-claimant for all or part of a claim asserted in the action
against the cross-claimant. (7)
party’s claim
3. the counterclaim does not require for its adjudication the Section 9.Counter-counterclaims and counter-crossclaims. — A counter-claim may
presence of a third party from whom the court cannot be asserted against an original counter-claimant.
A cross-claim may also be filed against an original cross-claimant. (n)
acquire jurisdiction
4. it must be within the jurisdiction of the court, both as to
4. CROSS CLAIM
amount and to the nature thereof
Except that in an original action in the RTC, the
counterclaim will be considered compulsory regardless of the It is a claim by one defendant against his co-defendant
arising out of the same transaction or occurrence that is the
amount. (!!!)
-WITHIN JURISDICTIONAL AMOUNT OF MTC subject matter of the original action.
If the case is filed in MTC, can you make a counterclaim? So when plaintiff files a case against 2 defendants,
defendant A filed his answer and blamed B as one
Yes. But your compulsory counterclaim’s amount should
responsible for all the mess.
not go beyond the jurisdictional amount of MTC/
What should A do? He may file his answer to his complaint
-NEED NOT BE WITHIN THE JURISDICTIONAL AMOUNT OF
RTC and at the same time file a cross claim against his co
defendant.
However , if the case is originally filed in RTC, you can make
a counterclaim even if it is beyond the jurisdictional amount
of RTC. 6. THIRD PARTY COMPLAINT
Section 11.Third, (fourth, etc.)—party complaint. — A third (fourth, etc.) — party
complaint is a claim that a defending party may, with leave of court, file
5. counter claim of the defendant must be existing at the time against a person not a party to the action, called the third (fourth, etc.) —
party defendant for contribution, indemnity, subrogation or any other relief,
he files the answer in respect of his opponent's claim. (12a)
COMPULSORY CC vs PERMISSIVE CC A third party complaint is a claim of the defendant against

What is the importance of knowing whether the counter another person who is not a party to the case.
claim is a compulsory or permissive counter claim? He is called a third party.
CCC: arises out of the transaction that is the subject matter
of the plaintiff’s claim For what? For reimbursement.
PCC: claim of the defendant that is not connected to the
subject matter of the plaintiff’s claim but still you are Example. If the plaintiff files a complaint against the
allowed by the court to set it off defendant and the latter said it was the fault of X who was
not a party. He wants to drag X to the case to answer
CCC: must be set up in the answer, OW it is deemed barred whatever damages the defendant may be held liable by the
PCC: need not be included in the answer court as against the plaintiff.
-may be filed that counter claim as an independent If the court finds him liable, he will pass on the liability to X.
action
If the third party defendant, the original defendant will be
CCC: filing fee need not be paid called the DEFENDANT (original action)and at the same time
PCC: must pay filing fee a THIRD PARTY PLAINTIFF (third party complaint).
FOURTH PARTY COMPLAINT

If the third party defendant may also drag another person
into the case, he may file a fourth party complaint against
another person.

Kwin
-WITH LEAVE OF COURT: REQUIRED ON 3RD PARTY Section 10.Reply. — A reply is a pleading, the office or function of which is
to deny, or allege facts in denial or avoidance of new matters alleged by
COMPLANT way of defense in the answer and thereby join or make issue as to such
When you file a third party complaint, is there a need for new matters. If a party does not file such reply, all the new matters
you to ask permission from the court? alleged in the answer are deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the new matters
Yes. Leave of court is required in third party complaint so alleged, such claims shall be set forth in an amended or supplemental
because you are now bringing in an outsider of the case who complaint. (11)
is not an original party. So you have to ask for permission
5. REPLY
-LEAVE OF COURT: NOT NEEEDED IN COUNTERCLAIM A reply is the plaintiff’s answer to the defendant’s answer
Do you need to ask permission from the court is you file a In your answer, you bring new matters which I did not bring
counter claim? in my complaint.
No. Because both are already parties. -GR: NOT MANDATORY
Is reply mandatory?
-LEAVE OF COURT: NOT NEEEDED IN CROSSCLAIM No.
The same is true with the cross claim. When a defendant
files a cross claim on the defendant, there is no need for him -EFFECT IF NOT REPLY: ALL NEW MATTERS ARE DEEMED
to ask leave of court. CONTROVERTED
If the party does not file such reply, all new matters are
-WHEN COURT DENIES MOTION: REMEDY IS APPEAL deemed controverted.
When the court denies the motion to file the third party
complaint, the remedy of the party is appeal. Because the -EXPT: WHEN REPLY MUST BE MADE
third party complaint is in the nature of an independent But there are instances were reply must be made:
action. 1. where the answer alleges the defense of usury
If the court denies it an will not allow you to file a third 2. where the answer is based on actionable document
party complaint, it is tantamount to dismissing a complaint
that you want to file against a third party. And so the -1. WHERE THE ANSWER ALLEGES THE DEFENSE OF USURY
remedy is appeal. -Case: Liam Lao
There is a need to deny the allegation under oath if the
-TRIAL COURT THAT HAS JURISDICTION OF THIRD PARTY allegation of usury is mentioned only in the complaint, not if
COMPLAINT it is mentioned in the answer.
Where the trial court has jurisdiction over the main case, it So if there is an allegation of usury in the complaint, then
also has jurisdiction over the third party compliant you have to deny it under oath.
REGARDLESS OF THE MOUNT OF THE THIRD PARTY
COMPLAINT. -2. WHERE THE ANSWER IS BASED ON ACTIONABLE
It is merely an auxiliary to or a continuation of the main DOCUMENT
action. -ACTIONABLE DOCUMENT
An actionable document is a document that forms the basis
-TESTS TO DETERMINE THE PROPRIETY OF A THIRD AORTY of defendant’s answer.
COMPLAINT
1. whether it arises out of the same transaction of which the Example. Plaintiff claims that he is an owner of the land
plaintiff’s claim is based which is the subject matter of the case. He attached the
2. whether the third party’s complaint (although arising out deed of sale showing he brought the land from the previous
of another transaction) is connected with the plaintiff’s owner.
claim The deed of sale is an actionable document. That would
3. whether the third party defendant would be liable to prove the defense of the defendant
original pliantiff’s claim (although the third party
defendant’s liability arises out of another transaction) -RULE WHEN THERE IS AN ACTIONABLE DOCUMENT WITH
4. whether the third party defendant may assert any THE PLEADING
defense which the third party has or may have against the When there is an actionable document attached to the
original plaintiff. pleading, the rule is that you have to deny it under oath. The
plaintiff will have to file a reply. It must be under oath.

Kwin
-REPLY VS ANSWER TO COUNTER CLAIM RULE 7 PARTS OF A PLEADING
R: response to the defense set up by the defendant in
his answer REPUBLIC OF THE PHILIPPINES
REGIONAL TRIAL COURT
A: response of the plaintiff to the counter claim of the TH
7 JUDICIAL REGION
defendant BRANCH __
CEBU CITY
R: filing is generally optional

A: mandatory X, Plaintiff, Civil case no. ___
-versus- For: Specific Performance
Y, Defendant with damages
-MANDATORY ANSWER TO A COUNTERCLAIM
COMPLAINT
-When the defendant set sup a counter claim, you
have to answer the counter claim because the Come now PLAINTIFF by the undersigned counsel unto this Honorable Court
respectfully avers:
counter claim is in the nature of an independent 1. That plaintiff is of legal age, married to___, is a Filipino citizen and a resident
action. of___
-What is the effect if you did not answer the counter 2. That defendant is of legal age, married to___, is a Filipino citizen and a resident
of___, where he may be served with summons and other processes of the
clam? honorable court
ALLEGATIONS COMMON TO ALL CAUSES OF ACTIONS

FIRST CAUSE OF ACTION
Section 12.Bringing new parties. — When the presence of parties other than 3.
those to the original action is required for the granting of complete relief in 4.
the determination of a counterclaim or cross-claim, the court shall order
them to be brought in as defendants, if jurisdiction over them can be SECOND CAUSE OF ACTION
obtained. (14) 5.
6.
Wherefore, premises considered, it is most respectfully prayed unto this Honorable

Section 13.Answer to third (fourth, etc.)—party complaint. — A third (fourth, etc.) court to render judgment in favor of the plaintiff and against the defendant as
— party defendant may allege in his answer his defenses, counterclaims or follows:
cross-claims, including such defenses that the third (fourth, etc.) — party 1.
plaintiff may have against the original plaintiff's claim. In proper cases, he 2.
may also assert a counterclaim against the original plaintiff in respect of the 3.
latter's claim against the third-party plaintiff. (n)
Cebu City Philippines
Nov 18, 2011
Name of lawyer
Address of lawyer
PTR No.
IBP No.
Roll of Atty No.
Telephone/Cellphone Number
VERIFICATION
I, X, of legal age, Filipino and a resident of ___, after having been sworn to in
accordance with law, do hereby depose and say:
1. That I am the plaintiff in the above entitled case.
2. That I have caused the preparation of the foregoing compliant.
3. That I have read the context of the foregoing compliant
4. That all the allegation in this complaint are true and correct to the best of my
personal knowledge and based on authentic records
Signed, X, Plaintiff
CERTIFICATION OF NON FORUM SHOPPING

Kwin
RULE 7 Section 3.Signature and address. — Every pleading must be signed by the party
Parts of a Pleading or counsel representing him, stating in either case his address which should
Section 1.Caption. — The caption sets forth the name of the court, the title of not be a post office box.
the action, and the docket number if assigned. The signature of counsel constitutes a certificate by him that he has read the
The title of the action indicates the names of the parties. They shall all be pleading; that to the best of his knowledge, information, and belief there is
named in the original complaint or petition; but in subsequent pleadings, it good ground to support it; and that it is not interposed for delay.
shall be sufficient if the name of the first party on each side be stated with an An unsigned pleading produces no legal effect. However, the court may, in its
appropriate indication when there are other parties. discretion, allow such deficiency to be remedied if it shall appear that the
Their respective participation in the case shall be indicated. (1a, 2a) same was due to mere inadvertence and not intended for delay. Counsel who
deliberately files an unsigned pleading, or signs a pleading in violation of
this Rule, or alleges scandalous or indecent matter therein, or fails promptly
CAPTION report to the court a change of his address, shall be subject to appropriate
Caption sets forth the name of the court, the title of the disciplinary action. (5a)
action, and docket number is assigned.
SIGNATURE
-CERTIFICATION OF THE LAWYER
Section 2.The body. — The body of the pleading sets fourth its designation, the
allegations of the party's claims or defenses, the relief prayed for, and the
Signature of the lawyer is tantamount to a certification that
date of the pleading. (n) the lawyer has prepared that pleading; he understood the
(a) Paragraphs. — The allegations in the body of a pleading shall be divided content of the pleading and all the allegations therein are
into paragraphs so numbered to be readily identified, each of which shall true and correct
contain a statement of a single set of circumstances so far as that can be
done with convenience. A paragraph may be referred to by its number in all
succeeding pleadings. (3a) -EFFECT IF THERE IS NO SIGNATURE
(b) Headings. — When two or more causes of action are joined the statement What happens if there is no signature of the lawyer?
of the first shall be prefaced by the words "first cause of action,'' of the
second by "second cause of action", and so on for the others. The court may treat the pleading as a mere scrap of paper.
When one or more paragraphs in the answer are addressed to one of several However the court may, in the interest of justice, not to
causes of action in the complaint, they shall be prefaced by the words dismiss the case and allow the lawyer to sign the pleading.
"answer to the first cause of action" or "answer to the second cause of action"
and so on; and when one or more paragraphs of the answer are addressed to Specially if the failure of signing the pleading is not intended
several causes of action, they shall be prefaced by words to that effect. (4) to delay, but merely of inadvertence or oversight. There was
(c) Relief. — The pleading shall specify the relief sought, but it may add a no intention to delay the proceeding, as it was not
general prayer for such further or other relief as may be deemed just or
equitable. (3a, R6) malicious.
(d) Date. — Every pleading shall be dated. (n) The GR in the rules of court is that rules should be
construed liberally in order to attain just and inexpensive
BODY resolution of cases.
PARAGRAPHS
Usually the first paragraph is devoted for introduction of the ADDITIONAL CONDITIONS BY LAW:
parties, their personal circumstance. 1. BAR MATTER 287 SEPT 26, 2001
The important circumstances are: When the lawyer signs a pleading he must place his PTR
1. Name and IBP no. Or if he is a lifetime member of IBP, he has a
2. Age – must be of legal age lifetime number.
3. Citizenship
4. Residence 2. BAR MATTER 1132 APRIL 1, 2003
-if defendant, you may add “where he may be served You must also put the Roll of Attorney Number.
with summons and other processes of the honorable
court” 3. BAR MATTER
Further more, there is another bar matter that states that
HEADINGS when a lawyer files a pleading, he must also place a
Pleading is presented in paragraphs. You may make headings telephone number or cellular phone number to be easily
and subheadings. reached by the judge in case of postponement
Complaint which has several causes of actions may place
“ALLEGATIONS COMMON TO ALL CAUSES OF ACTIONS”.
RELIEF
The end part s the relief which contains the prayer.
After that, you must place the date and the place where you
prepared the pleading and the name and address of the
lawyer.

Kwin
Section 4.Verification. — Except when otherwise specifically required by law Section 5.Certification against forum shopping. — The plaintiff or principal party
or rule, pleadings need not be under oath, verified or accompanied by shall certify under oath in the complaint or other initiatory pleading
affidavit .(5a) asserting a claim for relief, or in a sworn certification annexed thereto and
A pleading is verified by an affidavit that the affiant has read the pleading and simultaneously filed therewith:
that the allegations therein are true and correct of his knowledge and belief. (a) that he has not theretofore commenced any action or filed any claim
A pleading required to be verified which contains a verification based on involving the same issues in any court, tribunal or quasi-judicial agency and,
"information and belief", or upon "knowledge, information and belief", or to the best of his knowledge, no such other action or claim is pending
lacks a proper verification, shall be treated as an unsigned pleading. (6a) therein;
(b) if there is such other pending action or claim, a complete statement of
the present status thereof; and
VERIFICATION (c) if he should thereafter learn that the same or similar action or claim has
A verification refers to the portion where the pleader been filed or is pending, he shall report that fact within five (5) days
certified that he caused the preparation of the pleading and therefrom to the court wherein his aforesaid complaint or initiatory
pleading has been filed.
that all the allegations therein are true and correct in his Failure to comply with the foregoing requirements shall not be curable by
own knowledge and belief. mere amendment of the complaint or other initiatory pleading but shall be
cause for the dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing. The submission of a false
-BASED ON PERSONAL KNOWLEDGE OR AUTHENTIC certification or non-compliance with any of the undertakings therein shall
RECORDS constitute indirect contempt of court, without prejudice to the
Under the new rules it is not enough that you state it is corresponding administrative and criminal actions. If the acts of the party or
his counsel clearly constitute willful and deliberate forum shopping, the
based on knowledge and belief. same shall be ground for summary dismissal with prejudice and shall
What is required now is that it must be based on personal constitute direct contempt, as well as a cause for administrative sanctions.
knowledge or authentic records. (n)
CERTIFICATION OF NON FORUM SHOPPING

-SIGNED BY THE PARTY, NOT THE LAWYER What is a certification of non forum shopping?
It is an affidavit signed by the party, not but the lawyer. It is a certification by the plaintiff that this is the only case
that he filed against the defendant involving the same issue
-WHEN VERIFICATION IS REQUIRED and subject matter; that he did not file any other action in
Is verification required? Is it mandatory? other courts involving the same parties and same subject
GR: pleadings need not be verified matter.
EXPT: It is only required when the law so provides, as in the
following cases: -GR: REQUIRED ONLY IN AN INITIATORY PLEADING
1. Petition for relief of judgment The requirement of certification of non forum shopping is
2. Petition for review under Rule 42 only in a case of initiatory pleading like a complaint or a
3. Petition for review under Rule 43 petition.
4. Appeal by Certiorari -INITIATORY PLEADING
5. Others
It is a pleading tat sets in motion the entire process of
litigation.
When you file the answer to the complaint and the
complaint contains actionable documents, it should be -EXPT: CERTIFICATION IN AN ANSWER – WHEN REQUIRED:
verified. ANSWER CONTAINS A PERMISSIVE COUNTER CLAIM
Normally, you need not verify your answer or complaint. -Case: Sto Tomas University Hospital vs Surla
but since complaint usually contains actionable documents How about in the answer?
that will be the basis of your complaint, then the answer No need because it is not an initiatory pleading.
must also be verified. But if the answer contains a counter claim and the counter
claim is a permissive counter claim, then you must place a
certification of non forum shopping.
-REASON
Because a permissive counter claim is in the nature of an
independent action
-CERTIFICATION OF NON FORUM SHOPPING IS NOT
REQUIRED ON COMPULSORY COUNTER CLAIM.
-EXECUTED BY PETITIONER, NOT BY LAWYER

-Case: Far Eastern Co vs CA
The certification of non forum shopping shall be executed
by the petitioner and not by his lawyer.
In actual practice, verification and certification of non
forum shopping is merged.

Kwin
RULE 8 MANNER OF MAKING ALLEGATIONS IN PLEADINGS Section 2.Alternative causes of action or defenses. — A party may set forth two or
more statements of a claim or defense alternatively or hypothetically, either
in one cause of action or defense or in separate causes of action or defenses.
RULE 8 When two or more statements are made in the alternative and one of them if
Manner of Making Allegations in Pleadings made independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative statements.
Section 1.In general. — Every pleading shall contain in a methodical and logical (2)
form, a plain, concise and direct statement of the ultimate facts on which the
party pleading relies for his claim or defense, as the case may be, omitting
the statement of mere evidentiary facts. (1) ALTERNATIVE CUASES OF ACTION OR DEFENSE
If a defense relied on is based on law, the pertinent provisions thereof and You can allege alternative causes of action or defense.
their applicability to him shall be clearly and concisely stated. (n)
HOW ALLEGATIONS ARE MADE:

MAKING ALLEGATIONS IN PLEADING
1. CONDITION PRECEDENT
GR: a pleading shall contain in a methodical and logical form,
2. CAPACITY TO SUE
a plain, concise and direct statement of the ultimate facts
3. ALLEGATION OF FRAUD OR MISTAKE
on which the party pleading relies for his claim or defense,
4. ALLEGATION OF JUDGMENT
as the case may be, omitting the statement of mere
5. OFFICIAL DOCUMENTS OR ACTS
evidentiary facts.
TWO KINDS OF FACTS TO BE ESTABLISHED Section 3.Conditions precedent. — In any pleading a general averment of the
performance or occurrence of all conditions precedent shall be sufficient. (3)
1. ULTIMATE FACTS
2. EVIDENTIARY FACTS
1. CONDITION PRECEDENT
-GENERAL AVERMENTS
ULTIMATE FACTS: REQUIRED IN PLEADINGS
How to allege?
In your pleading, what is required is only the ultimate facts.
Allegations as to condition precedent may be done by
You reserve the evidentiary matters in thee trial of the case.
general averments, not by specific allegations. You need not
Pleading should be presented in a brief and concise manner.
describe how
-CONDITIONS PRECEDENT TO THE FILING OF THE CASE
Example of ultimate facts: I am the owner of the property
a. Exhaustion of Administrative Remedies
and I have been in possession of the property in concept of
b. Availment of Katarungang Pambarangay Law
owner for 30 years now.
c. Family Code: if it is a suit between members of the same
You do not have to explain anymore how you have been in
family, allege that you exerted earnest effort to settle the
possession of the property for 30 years because these are
case amicably
already evidentiary matters. The matter of possession, WON
you have really possessed it in 30 years is something that is Section 4.Capacity. — Facts showing the capacity of a party to sue or be sued
evidentiary. If you want to prove you possession in 30 years, or the authority of a party to sue or be sued in a representative capacity or
you reserve that during the trial of the case. the legal existence of an organized association of person that is made a
party, must be averred. A party desiring to raise an issue as to the legal
existence of any party or the capacity of any party to sue or be sued in a
COMPELLING TO DIVULGE EVIDENTIARY MATTER: BILL OF representative capacity, shall do so by specific denial, which shall include
PARTICULARS IS NOT PROPER such supporting particulars as are peculiarly within the pleader's
knowledge. (4)
Can you be compelled by the other party to divulge
evidentiary matter? How?
2. CAPACITY TO SUE
Example. The plaintiff files a complaint. He alleges the
-SPECIFIC AVERMENTS
ultimate facts, but he did not mention the evidentiary facts.
However as to the capacity to sue, it must be described or
Can the defendant ask for a bill of particulars? To divulge
alleged with specific allegations
evidentiary matters?
NO. Because bill of particulars can only be availed of to
Section 5.Fraud, mistake, condition of the mind. — In all averments of fraud or
compel the plaintiff to clarify ambiguous matters that mistake the circumstances constituting fraud or mistake must be stated
constitute the ultimate facts. with particularity. Malice, intent, knowledge, or other condition of the mind
of a person may be averred generally.(5a)
HOW TO COMPEL DIVULGING OF EVIDENTIARY MATTER:

MODES OF DISCOVERY 3. ALLEGATION OF FRAUD OR MISTAKE
So if you want to know the evidences of another, you avail of -SPECIFIC AVERMENTS
the MODES OF DISCOVERY IN RULE 23-29. It must also be specifically alleged

Kwin
Section 6.Judgment. — In pleading a judgment or decision of a domestic or -HOW TO CONTEST AN ACTIONABLE DOCUMENT: DENY
foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is
sufficient to aver the judgment or decision without setting forth matter
UNDER OATH
showing jurisdiction to render it. (6) When there is an actionable document that is attached to
the pleading, you have to deny the allegations therein under
4. ALLEGATION OF JUDGMENT oath.
-GENREAL AVERMENTS Example. If an actionable document is attached to the
It is enough that you sight the judgment and attach a copy complaint, you answer must be under oath. Meaning, it
of the judgment. You need not allege in the pleading the at must be verified
the court has jurisdiction to render such judgment.
-EFFECT OF FAILURE TO DENY UNDER OATH AN
Section 7.Action or defense based on document. — Whenever an action or defense ACTIONABLE DOCUMENT
is based upon a written instrument or document, the substance of such
What happens if you failed to deny the documents under
instrument or document shall be set forth in the pleading, and the original or
a copy thereof shall be attached to the pleading as an exhibit, which shall be oath?
deemed to be a part of the pleading, or said copy may with like effect be set -GR: DEEMED TO HAVE ADMITTED GENUINENESS AND DUE
forth in the pleading. (7)
EXECUTION OF ACTIONABLE DOCUMENT
The effect is that you are deemed to have admitted the
5. OFFICIAL DOCUMENTS OR ACTS
genuineness and the due execution of that document. ( not
-SPECIFIC AVERMENTS
deemed to have admitted the whole document)
This should also be specifically alleged GENUINENESS means you are deemed to have admitted
that the document is not a forgery or a falsified document.
Section 8.How to contest such documents. — When an action or defense is
founded upon a written instrument, copied in or attached to the The DUE EXECUTION of the document means that the
corresponding pleading as provided in the preceding section, the other party executed it without any threat intimidation or
genuineness and due execution of the instrument shall be deemed admitted
unless the adverse party, under oath specifically denies them, and sets forth
coercion that the voluntarily executed the document
what he claims to be the facts, but the requirement of an oath does not apply -EXCEPTIONS:
when the adverse party does not appear to be a party to the instrument or However there are exceptions:
when compliance with an order for an inspection of the original instrument
is refused. (8a)
1. when the adverse party is not a party to the document
Example. Plaintiff filed his answer and he attached his
HOW TO ALLEGE AN ACTIONABLE DOCUMENT actionable document, but the parties of the actionable
-ACTIONABLE DOCUMENT documents were neither parties to the case. There is deed
It is a document that is very important to the plaintiff’s of sale executed by one in favor of the defendant, but it
cause of action. Or it is a document that is the basis of the was not the plaintiff who signed it.
defendant’s defenses. If the plaintiff did not deny it under oath, he is not
deemed to have admitted the genuineness and due
-HOW DO YOU PLEAD? execution of the document because he is not a party to the
There are two ways: document.
1. quote the portion of the actionable document and attach a 2. when the order for inspection of the document was not
copy to form part of the pleading complied with under rule 27
Example. you file a case based on a contract which you Rule 27 is one of the MODES OF DISCOVERY. You can ask
claim to have been violated by the defendant. In your the other party to show the document.
compliant, you may sight the very paragraph in the Example, the actionable document you attached in your
contract that was violated by the defendant. answer cannot be read. The plaintiff filed a motion
You attach the document itself, and say: “a copy of the requesting for the production of the original document for
contract is hereto attached as Annex A to the complaint inspection. There was an order from the court but you did
and made as an integral part thereof.” not produce the document.
2. quote the entire document itself The failure to deny the document under oath will not make
You may not attach the document buy you quote the the plaintiff be deemed to admit the genuineness and due
entire document itself. execution so the document.

Kwin
Section 9.Official document or act. — In pleading an official document or official Section 11.Allegations not specifically denied deemed admitted. — Material averment
act, it is sufficient to aver that the document was issued or the act done in in the complaint, other than those as to the amount of unliquidated
compliance with law. (9) damages, shall be deemed admitted when not specifically denied.
Allegations of usury in a complaint to recover usurious interest are deemed
admitted if not denied under oath. (1a, R9)
Section 10.Specific denial. — A defendant must specify each material allegation
of fact the truth of which he does not admit and, whenever practicable, shall
set forth the substance of the matters upon which he relies to support his -EFFECT OF FAILURE TO DENY MATERIAL ALLEGATIONS IN
denial. Where a defendant desires to deny only a part of an averment, he
shall specify so much of it as is true and material and shall deny only the
THE COMPLAINT
remainder. Where a defendant is without knowledge or information GR: ALLEGATIONS NOT SPECIFICALLY DENIED DEEMED
sufficient to form a belief as to the truth of a material averment made to the ADMITTED
complaint, he shall so state, and this shall have the effect of a denial. (10a)
EXPT: (NOT CONSIDERED ADMITTED)
1. ALLEGATIONS AS TO THE AMOUNT OF DAMAGES
HOW DO YOU DENY A MATERIAL ALLEGATION OF THE
2. ALLEGATIONS WHICH ARE IMMATERIAL TO THE CAUSE OF
COMPLAINT
ACTION
1. GENERAL DENIAL
3. ALLEGATION IN THE COMPLAINT WHERE NO ANSWER
2. SPECIFIC DENIAL
HAS BEEN THE DEFENDANT
SPECIFIC DENIAL
GR: ALLEGATIONS NOT SPECIFICALLY DENIED DEEMED
-HOW DONE:
ADMITTED
A. BY SPECIFICALLY DENYING THE AVERMENTS AND
All the material averments of the complaint must be
WHENEVER POSSIBLE SETTING FORTH THE SUBSTANCE OF
specifically denied. Failure to deny specifically the material
TEHMATTERS RELIED UPON FOR SUCH DENIAL
averments in the complaint is tantamount to an admission
Example. There is a complaint filed and the causes of action
of the allegations in the complaint.
in the complaint are presented by paragraph. When the
defendant files his answer, he normally states: “Paragraph 3
EXPT: (NOT CONSIDERED ADMITTED)
of the complaint is specifically denies because the truth is….”
But there is no admission as to the exceptions I have
B. BY AN ALLEGATION OF LACK OF KNOWLEDGE OR
mentioned.
INFORMATION SUFFICIENT TO FORM A BELIEF AS TO THE
1. ALLEGATIONS AS TO THE AMOUNT OF DAMAGES
TRUTH OR FALSITY OF THE AVERMENT IN OPPOSING THE
One of that is as to the amount of damages. Claims for
PARTY’S
damages in the complaint are not deemed admitted
Example. You can deny by simply saying: “Paragraph 3 is
specially on the unliquidated damages.
denied for lack of knowledge or information sufficient to
form a belief as to the truth or falsity of the averments of
the complaint.”
This kind of denial is tantamount to saying “I don’t know Section 12.Striking out of pleading or matter contained therein. — Upon motion
whether the thing you are saying is true or not.” made by a party before responding to a pleading or, if no responsive pleading
-GR: TANTAMOUNT TO A SPECIFIC DENIAL is permitted by these Rules, upon motion made by a party within twenty
(20) days after the service of the pleading upon him, or upon the court's own
This is tantamount to specific denial. initiative at any time, the court may order any pleading to be stricken out or
-EXPT: WHEN OTHER PARTY IS IN POSSESSION OF THE that any sham or false, redundant, immaterial, impertinent, or scandalous
DOCUMENT matter be stricken out therefrom. (5, R9)
However there is one case where SC said that if the other
party is in possession of the document sought to be
established. And the one who is in possession denies it by
lack of knowledge or information sufficient to cause a belief,
SC said that is tantamount to an admission.
-WHEN NOT SUFFICIENT:

Specific denial is not sufficient if not under oath in the
following instances:
1. ALLEGATIONS AS TO USURY IN THE COMPLAINT
2. AUTHENTICITY AND DUE EXECUTION OF ACTIONABLE
DOCUMENT PROPERLY PLEADED WHERE THE OPPOSING
PARTY WAS A PARTY THERETO
IOW if there is an actionable document attached to the
pleading, it is not enough that you deny specifically. It must
be denied under oath. It must be verified (under pain of
perjury!)

Kwin
RULE 9 EFFECT OF FAILURE TO PLEAD Section 3.Default; declaration of. — If the defending party fails to answer within
the time allowed therefor, the court shall, upon motion of the claiming party
RULE 9 with notice to the defending party, and proof of such failure, declare the
Effect of Failure to Plead defending party in default. Thereupon, the court shall proceed to render
Section 1.Defenses and objections not pleaded. — Defenses and objections not judgment granting the claimant such relief as his pleading may warrant,
pleaded either in a motion to dismiss or in the answer are deemed waived. unless the court in its discretion requires the claimant to submit evidence.
However, when it appears from the pleadings or the evidence on record that Such reception of evidence may be delegated to the clerk of court. (1a, R18)
the court has no jurisdiction over the subject matter, that there is another (a) Effect of order of default. — A party in default shall be entitled to notice of
action pending between the same parties for the same cause, or that the subsequent proceedings but not to take part in the trial. (2a, R18)
action is barred by a prior judgment or by statute of limitations, the court (b) Relief from order of default. — A party declared in default may at any time
shall dismiss the claim. (2a) after notice thereof and before judgment file a motion under oath to set aside
the order of default upon proper showing that his failure to answer was due
to fraud, accident, mistake or excusable negligence and that he has a
EFFECT OF FAILURE TO PLEAD meritorious defense. In such case, the order of default may be set aside on
Effect of failure to plead means the effect of failure to answer such terms and conditions as the judge may impose in the interest of justice.
(3a, R18)
the complaint.
(c) Effect of partial default. — When a pleading asserting a claim states a
-DECLARED IN DEFAULT; DEFENSES AND OBJECTIONS ARE common cause of action against several defending parties, some of whom
DEEMED WAIVED answer and the others fail to do so, the court shall try the case against all
upon the answers thus filed and render judgment upon the evidence
When a complaint is filed in court, it is the duty of the clerk of
presented. (4a, R18).
court to give a copy of the complaint or summons to the (d) Extent of relief to be awarded. — A judgment rendered against a party in
defendant. Once the defendant received the summons and default shall not exceed the amount or be different in kind from that prayed
the complaint, the defendant has 15 days to file his answer. for nor award unliquidated damages. (5a, R18).
(e) Where no defaults allowed. — If the defending party in an action for
If he fails to file his answers, it means his defenses and annulment or declaration of nullity of marriage or for legal separation fails to
objections are deemed waived. IOW he is declared in default answer, the court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists, and if there is no
collusion, to intervene for the State in order to see to it that the evidence
OMNIBUS MOTION RULE: EFFECT OF FAILURE TO ALLEGE ALL submitted is not fabricated. (6a, R18)
DEFENSES
-DEFENSES AND OBJECTIONS ARE DEEMED WAIVED EFFECT IF FAILED TO FILE ANSWER: DECLARED IN DEFAULT
If you file your answer but you did not include all the What is the effect if the defendant fails to file his answer
defenses available to you, what is the effect on that? within the reglementary period of 15 days to file answer?
Defenses and objections are deemed waived. This is the The defendant can be declared in default.
OMNIBUS MOTION RULE.
-OMNIBUS MOTION RULE MOTION TO DECLARE THE PLAINTIFF IN DEFALUT; CANNOT
When you file your answer to compliant, you have to put BE MADE BY COURT MOTU PROPRIO
all the available defenses because those defenses that you If the defendant did not answer within 15 days from the time
failed to allege are deemed to have waived. of receipt of summons, can the court motu proprio declare
Same as with your motion to dismiss, you have to place all the plaintiff in default?
the grounds in the motion to dismiss. The court cannot declare the defendant motu prorpio in
-EXCEPTION TO OMNIBUS MOTION RULE (!!!) default. There must be a motion filed by the plaintiff.
However there are defenses or grounds for motion to
dismiss that are not deemed waived despite the fact that FILING OF ANSWER IS A MATTER OF RIGHT BEOFR E BEING
they were not alleged: DECLARED IN DEFAULT
1. LACK OF JURISDICTION Can the defendant file an answer beyond the 15 day period
2. LITIS PENDENTIA to file an answer?
3. RES JUDICATA Yes as long as he has not yet been declared in default, he
4. PRESCRIPTION OF ACTION can file an answer. It is a matter of right.
These may be invoked by you anytime for the dismissal of The court cannot refuse to accept the answer. If the court
the complaint, even if you forgot them in your answer or will refuse it, the court may be accused of grave abuse of
motion to dismiss. discretion.
In fact, the court can dismiss the complaint motu proprio if You may compel the judge to accept the answer by
these grounds are present. mandamus. Because the court cannot declare the
defendant in default motu proprio.
Section 2.Compulsory counterclaim, or cross-claim, not set up barred. — A
compulsory counterclaim, or a cross-claim, not set up shall be barred. (4a)
COMPULSORY COUNTER CLAIM/CROSS CLAIM MUST BE SET

UP
Compulsory counter claim or cross claim not set up are
deemed barred

Kwin
WHEN DEFENDANT MAY BE DECLARED IN DEFAULT -REMEDY OF DENIAL OF MOTION TO LIFT/SET ASIDE ORDER
When can the defendant be declared in default? OF DEFAULT ON GROUND OF IMRPOPER SERVICE OF
After the lapse of 15 day period to answer. This must be SUMMONS: CERTIORARI UNDER RULE 65
initiated by the plaintiff. If the judge will deny it, what is your remedy?
Certiorari under rule 65, grave abuse of discretion.
EFFECT OF BEING DECLARED IN DEFAULT
1. PLAINTIFF MAY PRESENT EVIDENCE EX PARTE -REMEDY OF DENIAL OF MOTION TO LIFT/SET ASIDE ORDER
What is the effect if the defendant fails to file the answer OF DEFAULT ON GROUND OF F.A.M.E.: APPEAL THE
within 15 days? JUDGMENT BY DEFAULT
Plaintiff may file a motion in court to declare the defendant If you are declared in default and you filed a motion to lift the
in default. order of default on the ground of fame but the judge did not
When the motion is granted by the court, the court may lift the order of default, what is your remedy? Can you
now allow the plaintiff to present his evidence ex parte. appeal the order of the judge?
2. COURT MUST NOTIFY DEFENDANT OF THE HEARING -NO APPEAL ON INTERLOCUTORY ORDER
When the defendant is already declared in default, under No. Because the ruling of the judge is a mere interlocutory
the new rules, the court is still duty bound to notify the order.
defendant of the hearing even if he is already declared in An interlocutory order cannot be appealed. You only
default. appeal if the decision of the judge is a decision on the merit
But you cannot participate because you are already a of the case.
default. IOW you are only an observer. You cannot talk, you -JUDGMENT BY DEFALUT; WAIT FOR THE COURT TO DECIDE
cannot object. You wait for the court to render judgment on default.
Because the plaintiff will then present evidence and the
REMEDY OF BEING DECLARED IN DEFAULT: MOTION TO LIFT court will decide.
THE ORDER OF DEFAULT OR MOTION TO SET ASIDE THE Just because the defendant has already been declared in
ORDER OF DEFAULT default, that the plaintiff will surely win. The plaintiff still has
What is your remedy if you are a defendant? to prove his case first. But usually, the plaintiff will win.
File a motion to lift the order of default or motion to set -ORDER BY DEFAULT VS JUDGMENT BY DEFAULT
aside the order of default. The judgment is different from order of default.
Order of default is the order of the court declaring the
-GROUNDS: F.A.M.E. defendant in default. This is not appealable.
There are specific grounds: Judgment by default is the judgment of the court on the
1. Fraud merits of the case based on the evidence or the merits of
2. Accident the case. This is appealable.
3. Mistake -APPEAL OF JUDGMENT BY DEFAULT
4. Excusable negligence When the defendant appeal the judgment by default, he
These rare also the same grounds for new trial and petition may include in his appeal the arguments. He may attack the
for relief of judgment. ruling of the court disallowing him the ruling of the court
and include them in your Assignment of Errors.
-GR: ACCOMPANIED BY AFFIDAVIT OF MERIT
It is necessary that when you file a motion to lift the order EXTENT OF RELEIF AWARDED IN JUDGMENT BY DEFAULT:
of default, your motion must also b accompanied by an CLAIMS PROVEN EXCEPT FOR DAMAGES
affidavit of merit. When the defendant is declared in default, then the court
It is an affidavit stating that you have a meritorious defense may render the judgment in favor of the plaintiff?
if only you are allowed by the court to file an answer. You The court may award in favor of the plaintiff those claims
must explain to the judge briefly your defense. that have been proven by the plaintiff during the
-EXPT: GROUND IS FAILURE TO RECEIVE SUMMONS OR presentation of his evidence ex parte.
IMPROPER SERVICE OF SUMMONS But the court may not award damages, especially
However an affidavit of merit is not required when the liquidated damages in favor of the plaintiff.
reason for being defaulted is anchored on the failure to
receive summons. One author did not agree with this because there are cases
-REASON: NO JURISDICTION OVER THE DEFENDANT purely for damages.
Because the court has not acquired jurisdiction of the
defendant
You check the records that there was proof of receipt of
summons

Kwin
WHEN DEFAULT IS NOT ALLOWED RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS
When is default not allowed?
RULE 10
You go back to persons an family relations. There is no Amended and Supplemental Pleadings
default in all actions involving marital relations under the Section 1.Amendments in general. — Pleadings may be amended by adding or
family court: striking out an allegation or the name of any party, or by correcting a
mistake in the name of a party or a mistaken or inadequate allegation or
1. annulment of marriage description in any other respect, so that the actual merits of the controversy
2. declaration of nullity of marriage may speedily be determined, without regard to technicalities, and in the
3. legal separation most expeditious and inexpensive manner. (1)
RULES TO REMEMBER: AMENDED PLEADING VS SUPPLEMENTAL PLEADING

1. The court cannot declare the defendant motu proprio AP: refers to facts that were already existing at the time the
2. The grant or denial of default is discretionary on the court pleading was filed but were omitted because of oversight
3. Answer may still be filed if there is yet no declaration of or inadvertence
default SP: refers to the inclusion of matter that occurred only after
4. A motion to lift the order of default should be under oath, the filing of the pleading. These are matters that
verified and accompanied by an affidavit of merit happened after the pleading was filed
5. An order of default is not appealable as it is an
Section 2.Amendments as a matter of right. — A party may amend his pleading
interlocutory order once as a matter of right at any time before a responsive pleading is served
or, in the case of a reply, at any time within ten (10) days after it is served.
(2a)
Section 3.Amendments by leave of court. — Except as provided in the next
preceding section, substantial amendments may be made only upon leave of
court. But such leave may be refused if it appears to the court that the
motion was made with intent to delay. Orders of the court upon the matters
provided in this section shall be made upon motion filed in court, and after
notice to the adverse party, and an opportunity to be heard. (3a)
TYPES OF AMENDMENT
1. AMENDMENT AS A MATTER OF RIGHT
A. BEFORE RESPONSIVE PLEADING
B. AFTER RSPONSIVE PLEADINGS – FORMAL AMENDMENTS
2. AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
A. AFTER RSPONSIVE PLEADINGS – SUBSTANTIAL
AMENDMENTS
1. AMENDMENT AS A MATTER OF RIGHT

A. BEFORE RESPONSIVE PLEADING
When there is yet no responsive pleading filed by a party.
But when responsive pleading is filed, then it is a matter of
judicial discretion.
Example. You have not yet filed your answer, I have
discovered some errors in my complaint. I may make
amendments without the need of asking permission from
the court.
-LAWYERS RESORT TO FILING ANSWER WITH SPECIAL
AFFIRMATIVE DEFENSE
A motion to dismiss is not an answer.
This is the reason why lawyers do not file motion to dismiss
when there are defects in the complaint. Rather, would file
their answer and include the defect in the SPECIAL
AFFIRMATIVE DEFENSE those grounds in the motion to
dismiss. Then they will ask for s SPECIAL PRELIMINARY
HEARING for the special affirmative defense, where it will be
like a motion to dismiss.
This way, they can no longer amend the complaint as a
matter of right

Kwin
B. AFTER RESPONSIVE PLEADINGS – FORMAL Section 6.Supplemental pleadings. — Upon motion of a party the court may,
upon reasonable notice and upon such terms as are just, permit him to serve
AMENDMENTS a supplemental pleading setting forth transactions, occurrences or events
If the amendment are only formal amendments, like you which have happened since the date of the pleading sought to be
want to correct clerical or typographical errors, it will not supplemented. The adverse party may plead thereto within ten (10) days
from notice of the order admitting the supplemental pleading. (6a)
affect the cause of action stated in the complaint.
Section 4.Formal amendments. — A defect in the designation of the parties
and other clearly clerical or typographical errors may be summarily AMENDED PLEADING VS SUPPLEMENTAL PLEADING
corrected by the court at any stage of the action, at its initiative or on A: may be with or without leave of court
motion, provided no prejudice is caused thereby to the adverse party. (4a)
S: must always be with leave of court
2. AMENDMENT AS A MATTER OF JUDICIAL DISCRETION
A: refers to facts existing at the time of commencement of
A. AFTER RSPONSIVE PLEADINGS – SUBSTANTIAL
the action
AMENDMENTS
S: refers to facts arising after the filing of the original
It becomes a matter of judicial discretion when there is an
pleading
answer filed
A: results to withdrawal of original pleading
-GROUNDS FOR DENIAL OF AMENDMENT
-Amended pleading is now he old pleading. It sets aside
When amendment must be denied:
the old pleading. However, admissions made in the
1. when the amendment is to delay the action
amended pleading is still admissible in court because
2. when the amendment is for the purpose of making the
these admissions are observed as judicial admissions
complaint confer jurisdiction upon the court
S: merely in addition to, but does not result in withdrawal
-when otherwise it does not have jurisdiction on the basis
of the original pleading
of the allegations in the complaint
-Example. The amount involved is in the jurisdiction of
A: can be made as a matter of right as when no responsive
MTC. You immediately filed an amended the complaint
pleading has yet to be filed
bloating the claim to confer jurisdiction to RTC. This is not
S: always with leave of court
allowed.
3. when the amendment is for the purpose curing a
premature or non existing cause of action Section 7.Filing of amended pleadings. — When any pleading is amended, a new
copy of the entire pleading, incorporating the amendments, which shall be
Section 5.Amendment to conform to or authorize presentation of evidence. — When indicated by appropriate marks, shall be filed. (7a)
issues not raised by the pleadings are tried with the express or implied
consent of the parties they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues Section 8.Effect of amended pleadings. — An amended pleading supersedes the
may be made upon motion of any party at any time, even after judgment; but pleading that it amends. However, admissions in superseded pleadings
failure to amend does not effect the result of the trial of these issues. If may be received in evidence against the pleader, and claims or defenses
evidence is objected to at the trial on the ground that it is not within the alleged therein not incorporated in the amended pleading shall be deemed
issues made by the pleadings, the court may allow the pleadings to be waived. (n)
amended and shall do so with liberality if the presentation of the merits of
the action and the ends of substantial justice will be subserved thereby. The ADMISSION IN SUPERSEDED PLEADINGS MAY BE RECEIVED
court may grant a continuance to enable the amendment to be made. (5a)
IN EVIDENCE
GR: DEFENSES NOT RAISED ARE DEEMED WAIVED The reason why a superseded pleading may still be received
EXPT: TRIED WITH CONSENT (EXPRESS OR IMPLIED) against the claimant is because such is in the NATURE OF A
JUDICIAL ADMISSION.
When issues not raised in the pleadings are tried with the
express or implied consent of the parties, they should be
treated in all respect as if they have been raised in the
pleading.
Defenses not raised are deemed waived. The court will only
entertain the issues that were raised in your pleading
But if you include those issues during the trial of the case and
the party did not object; in fact participated in the discussion
of that issue by cross examining your witness or presenting
rebuttal evidence, he is now deemed to have waived the
right to object.
When that happens, the COURT CAN EVEN ORDER THE
AMENDMENT OF THE PLEADING to conform to that
evidence.

Kwin
RULE 11 WHEN TO FILE RESPONSIVE PLEADING Section 2.Answer of a defendant foreign private juridical entity. — Where the
defendant is a foreign private juridical entity and service of summons is
made on the government official designated by law to receive the same, the
RULE 11 answer shall be filed within thirty (30) days after receipt of summons by
When to File Responsive Pleadings such entity. (2a)
Section 1.Answer to the complaint. — The defendant shall file his answer to the
complaint within fifteen (15) days after service of summons, unless a
different period is fixed by the court. (la) FOREIGN CORPRATION AS DEFENDANT
-WHERE TO FILE SUMMONS
WHEN TO FILE ANSWER When the defendant is a foreign corporation and it does
When to file an answer to the complaint: not have office in the Philippines, you serve the summons to
GR: 15 DAYS AFTER THE RECEIPT OF SERVICE OF the appropriate government agency tasked to received
SUMMONS summons for that defendant
EXPT: 30 DAYS – FOREIGN PROVATE JUDICIAL ENTITY
-PERIOD TO ANSWER
EXCLUDE THE FIRST DAY, INLUDE THE LAST DAY 30 days after the receipt of summons. They have longer
The basic rule in the computation of the period is to EXCLUDE period to answer
THE FIRST DAY AND INCLUDE THE LAST DAY.
When a complaint is filed against you and you received a
copy if the summons today, Nov 18, 2011, do not include Section 3.Answer to amended complaint. — When the plaintiff files an amended
complaint as a matter of right, the defendant shall answer the same within
today in the counting of the period to answer, you start fifteen (15) days after being served with a copy thereof.
tomorrow, Nov 19, 2011. You have until Dec 3 (15 days Where its filing is not a matter of right, the defendant shall answer the
after) to file the answer. amended complaint within ten (l0) days from notice of the order admitting
the same. An answer earlier filed may serve as the answer to the amended
complaint if no new answer is filed.
EFFECT OF INTERRUPTION – DAY OF INTERRUPTION IS This Rule shall apply to the answer to an amended counterclaim, amended
EXCLUDED cross-claim, amended third (fourth, etc.)—party complaint, and amended
complaint-in-intervention. (3a)
What is the effect of interruption?
The day that interrupts the period shall not be counted.
PERIOD TO ANSWER AMENDED COMPLAINT
And the period will start to run from the day after you
If filed as a matter of right: 15 days
receive the order that stops the interruption.
If matter of judicial discretion: 10 days
You receive the summons today, you have until Dec 3. If you
ANSWER TO AMENDED COMPLAINT IS NOT NECESSARY
file a motion to dismiss on Nov 25, what is the effect of the
Must an amended complaint be answered?
filing of the motion to dismiss?
NO. It is not necessary.
It will interrupt the running of the period to answer.
Your answer to original complaint is considered the answer
to the amended complaint.
If the court decides to deny your motion to dismiss and the
decision came out on Dec 10, when are you going to file Section 4.Answer to counterclaim or cross-claim. — A counterclaim or cross-claim
your answer? must be answered within ten (10) days from service. (4)
You have 9 days more. Because the filing of the motion to
dismiss will not be included. Meaning you have used up PERIOD TO ANSWER COUNTERCLAIM OR CROSSCLAIM
only 6 days (Dec 4-9). A counterclaim or cross-claim must be answered within ten
You start counting the remaining 9 days to count from the (10) days from service.
day after you received the order denying the motion to
dismiss. EFFECT OF FAILURE TO FILE ANSWER
GR: PLAINTIFF MAY BE DECLARED IN DEFAULT
WHEN MAY INTERRUPT PERIOD Failure to file answer is a ground to declare the
The day that interrupts the period may be the day when you plaintiff in default.
file: EXPT: ISSUES ARE SO INTERTWINED
1. motion to dismiss However when the counterclaim is so intertwined with
2. motion for bill of particulars the main action as in the case of a compulsory
counterclaim, the answer thereof is no longer needed

Kwin
Section 5.Answer to third (fourth, etc.)-party complaint. — The time to answer a November 23, 2011
third (fourth, etc.)—party complaint shall be governed by the same rule as
the answer to the complaint. (5a)
RULE 12
RD TH
Bill of Particulars
PERIOD TO ANSWER 3 /4 PARTY COMPLAINT Section 1.When applied for; purpose. — Before responding to a pleading, a party
15 days may move for a definite statement or for a bill of particulars of any matter
which is not averted with sufficient definiteness or particularity to enable
him properly to prepare his responsive pleading. If the pleading is a reply,
Section 6.Reply. — A reply may be filed within ten (10) days from service of the motion must be filed within ten (10) days from service thereof. Such
the pleading responded to. (6) motion shall point out the defects complained of, the paragraphs wherein
they are contained, and the details desired. (1a)
PERIOD TO REPLY
10days BILL OF PARTICULAR
It is a pleading that could be filed by an answering party in
Section 7.Answer to supplemental complain. — A supplemental complaint may be case the complaint is very vague or ambiguous. The
answered within ten (10) days from notice of the order admitting the same, defendant has a right to demand for clarification from the
unless a different period is fixed by the court. The answer to the complaint
shall serve as the answer to the supplemental complaint if no new or plaintiff.
supplemental answer is filed. (n)
WHO MAY FILE: ANSWERING PARTY
PERIOD TO ANSWER SUPPLEMENTAL COMPLAINT The answering party may file the motion for bill of particulars.
10 days from receipt of the order admitting it. If it is the original complaint that is vague, then the defendant
may file a motion for bill of particular.
ATTACH AMENDED PLEADING OR SUPPLEMENTAL PLEADING
TO YOUR MOTION PURPOSE
Remember that when you file a supplemental complaint, you He may ask the complainant to particularize those allegations
will have to file a motion with leave of court to file your in the compliant that are not very clear. This is a right opf
supplemental pleading. the defendant in order for him to prepare his answer
What is the rule in case of motion to admit supplemental intelligently.
pleading or motion to admit amended pleading?
You must attach the amended pleading or supplemental MANNER OF MAKING ALLEGATION IN COMPLAINT
pleading to your motion. That is why there is shorter period Allegations in a pleading must be presented in a
to answer METHODICAL AND LOGICAL FORM stating in a BRIEF AND
CONCISE MANNER the ultimate facts which forms the basis
of the plaintiff’s complaint or the defendant’s defenses,
Section 8.Existing counterclaim or cross-claim. — A compulsory counterclaim or a avoiding evidentiary matters.
cross-claim that a defending party has at the time he files his answer shall be
contained therein. (8a, R6) Evidentiary matters are to be proven during the trial of the
case.
Section 9.Counterclaim or cross-claim arising after answer. — A counterclaim or a CLARIFICATIONS OF ULTIMATE FACTS, NOT EVIDENTIARY
cross-claim which either matured or was acquired by a party after serving MATTERS
his pleading may, with the permission of the court, be presented as a
counterclaim or a cross-claim by supplemental pleading before judgment. (9, So the ambiguous or vague allegations in the compliant which
R6) requires clarifications by way of a bill of particular actually
refers to allegations of ULTIMATE FACTS.
A bill of particulars may not be used by the plaintiff to divulge
Section 10.Omitted counterclaim or cross-claim. — When a pleader fails to set up evidentiary matters. You cannot force or compel the plaintiff
a counterclaim or a cross-claim through oversight, inadvertence, or
excusable neglect, or when justice requires, he may, by leave of court, set up to divulge evidentiary matters by way of bill of particulars.
the counterclaim or cross-claim by amendment before judgment. (3, R9)
TO KNOW EVIDENTIARYU FACTS: AVAIL OF MODES OF
DISCOVERY
Section 11.Extension of time to plead. — Upon motion and on such terms as may There is a way for you to compel the plaintiff to divulge his
be just, the court may extend the time to plead provided in these Rules. evidences even before the start of the trial. You can avail of
The court may also, upon like terms, allow an answer or other pleading to be
filed after the time fixed by these Rules. (7) any of the modes of discovery like deposition, production of
documents or things, admissions and others.
EXTENSION OF TIME TO PLEAD
You can ask for extension of time to plead. You may file a
MOTION FOR EXTENSION OF TIME.
Normally the courts are very lenient on this

Kwin
Section 2.Action by the court. — Upon the filing of the motion, the clerk of Section 5.Stay of period to file responsive pleading. — After service of the bill of
court must immediately bring it to the attention of the court which may particulars or of a more definite pleading, or after notice of denial of his
either deny or grant it outright, or allow the parties the opportunity to be motion, the moving party may file his responsive pleading within the period
heard. (n) to which he was entitled at the time of filing his motion, which shall not be
less than five (5) days in any event. (1[b]a)
DUTY OF CLERK OF COURT
When the bill of particular is filed in court, the clerk of court EFFECT OF FILING OF BoP
must immediately notify the judge. What is the effect of filing a Bill of Particulars?
It suspends the 15 day period to file the answer
DUTY OF THE JUDGE
What will the judge do with the motion for bill of particulars? OPTIONS OF THE DEFENDANT WITHIN 15 DAYS TO FILE
The judge may either: ANSWER
1. grant the motion outright without a hearing Within the 15 day period to file the answer, the defendant
2. deny the motion outright without any hearing has several options:
3. call for a hearing of the motion 1. file his answer within 15 day period
2. file motion to dismiss
DISCRETIONARY ON THE COURT 3. file bill of particulars
The grant of motion for bill of particular is discretionary of
the court. Both the motion to dismiss and motion for bill of particulars
If the court, by merely reading the complaint, it sees that the suspends the period to answer.
allegations are very vague, then he may grant it. But if it
finds that the allegations are clear , instead found that the PERIOD TO FILE ANSWER AFTER DENIAL OF MOTION
motion was filed simply to delay the proceeding, the court When the bill of particular is denied, you have the BALANCE
may outrightly deny the motion for bill of particular. OF 15 DAYS, BUT IN NO CASE SHALL IT BE LESS THAN 5 DAYS.
The court may also call for a hearing. Example. The defendant filed a motion for bill of particulars
12 days after he filed the summons. Sp he has only 3 days
Section 3.Compliance with order. — If the motion is granted, either in whole or left. When the motion for bill of particulars is denied by the
in part, the compliance therewith must be effected within ten (10) days from court, he only has 3 days left. But he rules provides that he
notice of the order, unless a different period is fixed by the court. The bill of
particulars or a more definite statement ordered by the court may be filed
should be given not less than 5 days.
either in a separate or in an amended pleading, serving a copy thereof on the
adverse party. (n) -EXCLUDE DAY OF INTERRUPTION NAD DAY OF RECEIPT OF
DENIAL
COMPLIANCE OF THE ORDER Remember that in the computation of the period, the day of
If the motion for bill of particular is granted, the compliance interruption shall be excluded. And the order of the court
therewith must be effected by the plaintiff within 10 days that would resume the running of the period shall also be
from notice or the order, unless a different date is fixed by excluded.
the court.
HOW TO COMPLY WITH THE ORDER OF BILL OF Section 6.Bill a part of pleading. — A bill of particulars becomes part of the
PARTICULARS pleading for which it is intended. (1[a]a)
Compliance of the order of bill of particulars may be done by
the plaintiff in a SEPARATE PLEADING or by way of an
amended pleading, serving a copy thereof on the adverse
party.
Section 4.Effect of non-compliance. — If the order is not obeyed, or in case of

insufficient compliance therewith, the court may order the striking out of
the pleading or the portions thereof to which the order was directed or
make such other order as it deems just. (1[c]a)

Kwin
RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENT Section 4.Papers required to be filed and served. — Every judgment, resolution,
order, pleading subsequent to the complaint, written motion, notice,
AND OTHER PAPAERS appearance, demand, offer of judgment or similar papers shall be filed with
RULE 13 the court, and served upon the parties affected. (2a)
Filing and Service of Pleadings, Judgments and Other Papers
Section 1.Coverage. — This Rule shall govern the filing of all pleadings and
other papers, as well as the service thereof, except those for which a Section 5.Modes of service. — Service of pleadings motions, notices, orders,
different mode of service is prescribed. (n) judgments and other papers shall be made either personally or by mail. (3a)
RULE 13 SERVICE OF PLEADINGS

Rule 13 refers to the filing and service of pleadings, judgment It means the act of furnishing a copy of your pleading to the
or other papers. opposite party or to the other party.
Section 2.Filing and service, defined. — Filing is the act of presenting the WHEN SERVICE OF PLEADINGS IS REQUIRED
pleading or other paper to the clerk of court. When are you required to file a copy of the pleadings the
Service is the act of providing a party with a copy of the pleading or paper
concerned. If any party has appeared by counsel, service upon him shall be adverse party?
made upon his counsel or one of them, unless service upon the party himself That is required in ALL THE PLEADINGS that you filed
is ordered by the court. Where one counsel appears for several parties, he EXCEPT THE COMPLAINT.
shall only be entitled to one copy of any paper served upon him by the
opposite side. (2a)
SERVICE OF COMPLAINT
FILING Complaint is an initiatory pleading, when you file it in court,
Filing means the delivery of the pleading in court or to the you are not required to furnish a copy to the defendant
clerk of court. because it is the duty of the court to furnish a copy of the
complaint to the defendant. Because your complaint will be
-WHEN ACTION IS COMMENCED delivered to the defendant with the sheriff together with the
As what we have discussed, what commences the civil summons.
action is not only the delivery of the complaint to the clerk Once the defendant already received a copy of the
of court but to the payment of the docket fee. complaint, the court has now acquired jurisdiction over the
defendant. Then all the subsequent pleadings must be
Section 3.Manner of filing. — The filing of pleadings, appearances, motions, served on the adverse party.
notices, orders, judgments and all other papers shall be made by presenting
the original copies thereof, plainly indicated as such, personally to the clerk
of court or by sending them by registered mail. In the first case, the clerk of
PROOF OF FURNISHING A COPY OF THE PLEADING TO OTHER
court shall endorse on the pleading the date and hour of filing. In the second PARTY
case, the date of the mailing of motions, pleadings, or any other papers or In fact, the rule is that the court will not receive any
payments or deposits, as shown by the post office stamp on the envelope or
the registry receipt, shall be considered as the date of their filing, payment, pleading filed with the court if there is no proof that you
or deposit in court. The envelope shall be attached to the record of the case. furnish a copy of the pleading to the other party.
(1a) Absence of proof that you have furnished a copy of the
HOW TO FILE A COMPLAINT IN COURT pleading to another party will render your pleading a mere
You can file a complaint in court in two ways: scrap of paper. That will not be entertained by the court
1. personal delivery because that is a mandatory requirement.
2. mail
There are two ways of mailing: MODES OF SERVICE OF PLEADING
a. ordinary mail 1. personal service
b. registered mail 2. mail
Under the rules, the official way of mailing is registered 3. substituted service
mail. Ordinary mail is frowned upon. It is only allowed in
places where there is no registered mailing facilities.
If there are registered mailing facilities, then you have to
mail your pleading by registered mail.
REGISTERED MAIL VS ORDINARY MAIL: INSOFAR AS FILING

OF PLEADING (COMPLAINT AND ANSWER)
-Case: Industrial Timber Corp vs NLRC
RM: it is the date of the mailing that determines the date of
filing
OM: it is the date of receipt by the court which is
considered the date o f filing
This will matter on the filing of the answer.

Kwin
Section 6.Personal service. — Service of the papers may be made by delivering Section 9.Service of judgments, final orders, or resolutions. — Judgments, final
personally a copy to the party or his counsel, or by leaving it in his office orders or resolutions shall be served either personally or by registered mail.
with his clerk or with a person having charge thereof. If no person is found When a party summoned by publication has failed to appear in the action,
in his office, or his office is not known, or he has no office, then by leaving judgments, final orders or resolutions against him shall be served upon him
the copy, between the hours of eight in the morning and six in the evening, also by publication at the expense of the prevailing party. (7a)
at the party's or counsel's residence, if known, with a person of sufficient age
and discretion then residing therein. (4a) SERVICE OF DECISIONS, ORDERS OR RESOLUTIONS OF THE
COURT
PERSONAL SERVICE OF PLEADING In the case of decisions, orders or resolution of the court,
Personal service consists of delivering personally a copy of service shall also be done by:
the pleading to: 1. personal service
1. the party or 2. registered mail
2. his counsel 3. by publication
3. by leaving it in the lawyer’s office with his clerk or with
person having charge thereof PERSONAL SERVICE is the most common. Courts have their
4. by leaving a copy thereof between 8am to 6pm in the own process servers. They also have a sheriff. So it si the job
party’s or counsel’s residence, with a person of sufficient of the sheriff or the process server to deliver decisions,
age and discretion orders, resolutions to the parties personally or to their
lawyer.
Section 7.Service by mail. — Service by registered mail shall be made by
depositing the copy in the post office in a sealed envelope, plainly addressed
to the party or his counsel at his office, if known, otherwise at his residence, If the residence of the party or his lawyer, then the court may
if known, with postage fully prepaid, and with instructions to the mail the decision, order or resolution. But the court will do it
postmaster to return the mail to the sender after ten (10) days if undelivered.
If no registry service is available in the locality of either the senders or the by REGISTERED MAIL.
addressee, service may be done by ordinary mail. (5a; Bar Matter No. 803, 17
February 1998) There is a third mode of serving a copy of the decision and
that is by PUBLICATION.
Pleadings can also be served by registered mail or by ordinary
mail. This is allowed only when registered mail is not WHEN SERVICE BY PUBLICATION IS ALLOWED – ONLY WHEN
available. SERVICE OF SUMMONS BY PUBLICATION
But TN that service of the decision of the court by publication
Section 8.Substituted service. — If service of pleadings, motions, notices,
resolutions, orders and other papers cannot be made under the two
in the newspaper is allowed only WHEN SUMMONS WAS
preceding sections, the office and place of residence of the party or his ALSO SERVED BY PUBLICATION.
counsel being unknown, service may be made by delivering the copy to Since summons on the defendant was by publication, the
the clerk of court, with proof of failure of both personal service and
service by mail. The service is complete at the time of such delivery. (6a)
decision of the court must also be by way of publication.
SUBSTITUTED SERVICE OF PLEADINGS

Section 10.Completeness of service. — Personal service is complete upon actual
The third mode of service is the substituted service of delivery. Service by ordinary mail is complete upon the expiration of ten (10)
pleadings. days after mailing, unless the court otherwise provides. Service by registered
mail is complete upon actual receipt by the addressee, or after five (5) days
from the date he received the first notice of the postmaster, whichever date
SUBSTITUTED SERVICE OF SUMMONS is earlier. (8a)
TN of this because you might be confused later on in the next
rule. In the next rule, we will be talking of the substituted
service of summons.
SUBSTITUTED SERVICE OF SUMMONS VS SUBSTITUTED

SERVICE OF PLEADINGS
SSP: it consists of delivering a copy of the pleading to the
clerk of court. You can only do this if the opposing
party or his lawyer cannot be served a copy of his
pleading either personally or by mail. Because you
cannot locate the opposing party, you deliver it to the
clerk of court with the information that you tried your
best to serve it on the other party or his lawyer, but it
proved futile.
SSS:

Kwin
Section 11.Priorities in modes of service and filing. — Whenever practicable, the Section 14.Notice of lispendens. — In an action affecting the title or the right of
service and filing of pleadings and other papers shall be done personally. possession of real property, the plaintiff and the defendant, when affirmative
Except with respect to papers emanating from the court, a resort to other relief is claimed in his answer, may record in the office of the registry of
modes must be accompanied by a written explanation why the service or deeds of the province in which the property is situated notice of the
filing was not done personally. A violation of this Rule may be cause to pendency of the action. Said notice shall contain the names of the parties
consider the paper as not filed. (n) and the object of the action or defense, and a description of the property in
that province affected thereby. Only from the time of filing such notice for
record shall a purchaser, or encumbrancer of the property affected thereby,
PRIORITY OF SERVICE OF PLEADINGS: PERSONAL SERVICE be deemed to have constructive notice of the pendency of the action, and
Under the new rules, PERSONAL SERVICE is preferred and the only of its pendency against the parties designated by their real names.
rules provide, whenever practicable, the service and filing of The notice of lispendens hereinabove mentioned may be cancelled only upon
order of the court, after proper showing that the notice is for the purpose of
pleadings and other papers shall be done personally. molesting the adverse party, or that it is not necessary to protect the rights
of the rights of the party who caused it to be recorded. (24a, R-14)
EXPLANATION FOR SERVICE BY MAIL
In fact, it is now required that if you serve your pleading by NOTICE OF LIS PENDENS
mail, you must have an explanation why you did not serve it It is a notice annotated at the back of the title fo the
personally. property, stating that his property or this title covering the
This is a mandatory requirement. property is involved in the litigation.
PURPOSE PURPOSE
This is intended to stop unscrupulous lawyers from mailing This is to warn third person or party intending to deal with
their pleading intentionally even if the other party is just the property that such is involved in a case. So that the
across the street so that the other party will not receive it buyer cannot claim that he is a buyer in good faith because
right away. there is an annotation at the back of the title that hit is
involved in a pending suit.
Section 12.Proof of filing. — The filing of a pleading or paper shall be proved by WHEN MAY BE AVAILED OF: REAL ACTION
its existence in the record of the case. If it is not in the record, but is claimed
to have been filed personally, the filing shall be proved by the written or
When can you put notice of lis pendens?
stamped acknowledgment of its filing by the clerk of court on a copy of the Only when the title of the property is involved in the case.
same; if filed by registered mail, by the registry receipt and by the affidavit of It applies only to real actions: cases involving title to or in
the person who did the mailing, containing a full statement of the date and
place of depositing the mail in the post office in a sealed envelope addressed possession of a real property or any interest therein.
to the court, with postage fully prepaid, and with instructions to the
postmaster to return the mail to the sender after ten (10) days if not So if I file a collection case against you, I cannot put at the
delivered. (n)
back of the title a notice of lis pendens because it has no
relation to the title of the property.
Section 13.Proof of Service. — Proof of personal service shall consist of a
written admission of the party served, or the official return of the server, or WHEN MAY BE LIFTED
the affidavit of the party serving, containing a full statement of the date, When can the notice of lis pendens be lifted?
place and manner of service. If the service is by ordinary mail, proof thereof
shall consist of an affidavit of the person mailing of facts showing
GR: NOTICE OF LIS PENDENS CAN BE LIFTED ONLY BY THE
compliance with section 7 of this Rule. If service is made by registered mail, COURT THROUGH A MOTION
proof shall be made by such affidavit and the registry receipt issued by the There must be a motion filed asking the court to lift the
mailing office. The registry return card shall be filed immediately upon its
receipt by the sender, or in lieu thereof the unclaimed letter together with notice of lis pendens.
the certified or sworn copy of the notice given by the postmaster to the Before the court will conduct it, the court will conduct a
addressee. (10a) hearing. The court will grant the lifting of the notice of lis
pendens if the court finds that the annotation of the notice
PROOF OF SERVICE of lis pendens in the title is purely for harassment purposes;
1. Personal service: the affidavit of the person serving it it is not intended to protect the right of the movant or the
where he will state who received it, person who asked for its annotation.
time and day or receipt. One good example is that the claim is so small yet you
2. Registered mail: registry return card. The post man who annotate the notice of lis pendens on a property worth
will deliver the letter to the addressee millions.
will have the addressee sign it. The
postman will detach the return card
and send it back to the sender.
3. Ordinary mail: there is the presumption that the
completion is after 10 days of mailing

Kwin
RULE 14 SUMMONS (!!!) Section 3.By whom served. — The summons may be served by the sheriff, his
RULE 14 deputy, or other proper court officer, or for justifiable reasons by any
Summons suitable person authorized by the court issuing the summons. (5a)
Section 1.Clerk to issue summons. — Upon the filing of the complaint and the
payment of the requisite legal fees, the clerk of court shall forthwith issue PERSONS AUTHORIZED TO SERVE SUMMONS
the corresponding summons to the defendants. (1a)
1. court sheriff
2. deputy sheriff
WHO CAN ISSUE SUMMONS
3. other proper court officer authorized by the court
When the complaint is filed in court, it is the duty of the clerk
4. any suitable person authorized by the court
of court to immediately prepare the summons.
A policeman cannot serve summons even if he is
authorized by the chief of police.
SUMMONS
A court employee, interpreter or any ordinary employee
Summons is in the name of the court, addressed to the
of the court may serve summons if duly authorized by the
defendant, requiring the defendant to file the answer to the
court to serve the summons. The court may deputize any of
complaint which is attached to the summons.
its employees.
Actually the summons is a written notice from the court
In fact, anyone may serve the summons provided he is
informing the defendant that there is a case filed against
authorized by the court.
him and that he must answer the complaint.
SERVICE OF SUMMONS IS A MINISTERIAL ACT
EFFECT IF DEFENDANT DID NOT ASWER
-Case: Laos vs CA
What happens if the defendant did not answer the complaint
Service of summons is a ministerial act. And that is why it
within the reglementary period of 15 days?
may be served at anytime. It has a ministerial character
The defendant may be DECLARED IN DEFAULT. In fact, the
summons could contain a warning. Section 4.Return. — When the service has been completed, the server shall,
Remember that the court may not motu proprio declare within five (5) days therefrom, serve a copy of the return, personally or by
the defendant in default. There must be a motion filed by registered mail, to the plaintiff's counsel, and shall return the summons to
the clerk, who issued it, accompanied by proof of service. (6a)
the plaintiff. In fact, even if the lapse of the 15 day eriod to
answer, if there has yet been no declaration to declare him
RETURN OF SERVICE OF SUMMONS
in default, because the plaintiff the plaintiff did not file a
It is the duty of the sheriff to immediately report to the court
motion to declare the defendant in default, the defendant
the service of summons.
can still file his answer.
So the sheriff will submit the RETURN OF SERVICE OF
And if the court refuse to accept the answer, the defendant
SUMMONS.
can even compel the court by way of mandamus for the
It means the report from the sheriff that he has served the
court to receive the answer because that is still a matter of
summons to the defendant. And that summons must
right.
describe how the summons was served, when it was served,
at what time and where.
Section 2.Contents. — The summons shall be directed to the defendant, signed
by the clerk of court under seal and contain (a) the name of the court and COPY TO PLAINTIFF
the names of the parties to the action; (b) a direction that the defendant The sheriff must also furnish a copy of the return to the
answer within the time fixed by these Rules; (c) a notice that unless the
defendant so answers plaintiff will take judgment by default and may be plaintiff and his counsel within 5 days.
granted the relief applied for. -PURPOSE:
A copy of the complaint and order for appointment of guardian ad litem if any, For the plaintiff may start counting the 15 day period and
shall be attached to the original and each copy of the summons. (3a)
file a motion to declare defendant in default. TN the court
cannot motu proprio declare the defendant in default. It
CONTENTS OF THE SUMMONS
must be initiated by the plaintiff.
1. the NAME OF THE COURT AND THE NAMES OF THE
PARTIES to the action Section 5.Issuance of alias summons. — If a summons is returned without being
2. a DIRECTION THAT THE DEFENDANT ANSWER within the served on any or all of the defendants, the server shall also serve a copy of the
time fixed by these Rules return on the plaintiff's counsel, stating the reasons for the failure of service,
within five (5) days therefrom. In such a case, or if the summons has been
3. a notice that unless the defendant so answers plaintiff will lost, the clerk, on demand of the plaintiff, may issue an alias summons. (4a)
take JUDGMENT BY DEFAULT and may be granted the relief
applied for

Kwin
MODES OF SERVICE OF SUMMONS -SUBSTITUTED SERVICE OF SUMMONS VS SUBSTITUTED
1. PERSONAL SERVICE SERVICE OF PLEADINGS
2. SUBSTITUTED SERVICE SSP: this consists of delivering of pleading to the clerk of
3. SERVICE BY PUBLICATION court; that is if the other party cannot be located
either by personal service or by mail
Section 6.Service in person on defendant. — Whenever practicable, the summons SSS: this consists of giving the summons to a person of
shall be served by handling a copy thereof to the defendant in person, or, if
he refuses to receive and sign for it, by tendering it to him. (7a)
suitable age or discretion, living at the place of the
I. PERSONAL SERVICE defendant; or at the office of the defendant, given to a
This is done by handing a copy thereof to the defendant in person in charge thereof.
person.
II. SERVICE OF SUMMONS BY PUBLICATION (RULE 14 SEC 14,
-IF DEFENDANT REFUSE TO RECEIVE 15 AND 16)
Section 14.Service upon defendant whose identity or whereabouts are unknown. — In
If the defendant refuse to receive and sign for it, it can be any action where the defendant is designated as an unknown owner, or the
served to the defendant anywhere he is found. Summons like, or whenever his whereabouts are unknown and cannot be ascertained
must be served personally by tendering it to him. The sheriff by diligent inquiry, service may, by leave of court, be effected upon him by
publication in a newspaper of general circulation and in such places and for
shall leave a copy to him and then report to the court that such time as the court may order. (16a)
the defendant refused to sign and left a copy to the
defendant. Section 15.Extraterritorial service. — When the defendant does not reside and
The sheriff should not be held hostage by the defendant by is not found in the Philippines, and the action affects the personal status of
the plaintiff or relates to, or the subject of which is, property within the
not accepting the summons. Philippines, in which the defendant has or claims a lien or interest, actual or
contingent, or in which the relief demanded consists, wholly or in part, in
Section 7.Substituted service. — If, for justifiable causes, the defendant cannot excluding the defendant from any interest therein, or the property of the
be served within a reasonable time as provided in the preceding section, defendant has been attached within the Philippines, service may, by leave of
service may be effected (a) by leaving copies of the summons at the court, be effected out of the Philippines by personal service as under section
defendant's residence with some person of suitable age and discretion then 6; or by publication in a newspaper of general circulation in such places and
residing therein, or (b) by leaving the copies at defendant's office or regular for such time as the court may order, in which case a copy of the summons
place of business with some competent person in charge thereof. (8a) and order of the court shall be sent by registered mail to the last known
address of the defendant, or in any other manner the court may deem
sufficient. Any order granting such leave shall specify a reasonable time,
-WHERE SUMMONS SHOULD BE SERVED which shall not be less than sixty (60) days after notice, within which the
Summons must be served at: defendant must answer. (17a)
1. RESIDENCE OF THE DEFENANT OR AT HIS OFFICE. Section 16.Residents temporarily out of the Philippines. — When any action is
commenced against a defendant who ordinarily resides within the
-CANNOT SERVE SUMMONS ON THE LAWYER Philippines, but who is temporarily out of it, service may, by leave of court,
You cannot serve summons on the lawyer of the be also effected out of the Philippines, as under the preceding section. (18a)
defendant. You do not know yet who is lawyer is. He has not
made an answer yet. Even if the defendant is represented by -WHEN ALLOWED
a particular lawyer in other cases, it does not mean that he Service of summons by publication is allowed:
will be the same lawyer in this case. 1. in any action where the defendant is designated is an
2. ANYWHERE WHERE THE DEFENDANT MAY BE FOUND UNKNOWN OWNER or the like, or when his WHEREABOUTS
3. SUBSTITUTED SERVICE OF SUMMONS IS UNKNOWN AND CANNOT BE ASCERTAINED by diligent
-REQUIRE SEVERAL ATTEMPTS inquiry (sec 14)
The law requires that when the sheriff serves the summons 2. NON RESIDENT DEFENDANT (sec 15)
on the defendant and the defendant cannot be found there, 3. action against a defendant who ordinarily resides within
he must make several attempts before he can make the Philippines but is TEMPORARILY OUT of it (sec 16)
substituted service of summons.
A. OFFICE OF THE DEFENDANT 1. UNKNOWN OWNER, OR WHERE ABOUTS IS UNKNOWN
The sheriff must give the summons to the person in the The defendant is here in the Philippines but he cannot be
office in charge thereof, like the secretary. found by a diligent inquirer.
Or if the defendant is an employee only, you give it to 2. NON RESIDENT DEFENDANT
the manager. When the defendant does not reside and is not found in
B. RESIDENCE OF THE DEFENDANT the Philippines and the action:
Means that the sheriff may give the summons to a person: 1. affects the personal status of the plaintiff
a. residing in the house where the defendant resides 2. involves a property in the Philippines of which the
b. of suitable age and discretion defendant has an interest, and the court may attach the
The sheriff may make that person sign the summons and property,
ask for his personal information like name, age, relation. Then summons by publication may be resorted to.

Kwin
-PERSONAL STATUS OF THE PLAINTIFF summons by publication is allowed.
Examples:
1. action for annulment of marriage Example. I file a collection case against you but you left for
2. declaration of nullity of marriage US. I would tell the court that you incurred the obligation in
3. legal separation bad faith. And when there is fraud, there is basis for
4. action for recognition by illegitimate child attachment under rule 57.
5. support
-NEW SEC 14 DOES NOT DISTINGUISH TYPE OF ACTION TO
-ACTION INVOLVING A PROPERTY IN PHILIPPINES APPLY SERVICE BY PUBLICATION
When it is an action involving a property located in the These two cases are rendered OBSOLETE by the case of:
Philippines, the defendant must have interest therein. -Case: Pedro Santos vs PNOC Exploration Company (Sept 23,
2008)
3. DEFENDANT TEMPORARILY OUT OF THE PHILIPPINES SC said that this distinction between the last 2 cases is
Here, the defendant is a resident of the Philippines but is rendered obsolete by the provision of sec 14 rule 14.
temporarily outside the Philippines. He is definitely coming In any action where the defendant is designated as an
back but we do not know when. unknown owner, or the like, or whenever his whereabouts
-OTHER OPTION: SUBSTITUTED SERVICE OF SUMMONS are unknown and cannot be ascertained by diligent inquiry,
Here, there is another option. If he has a representative summons by publication can be resorted to.
here, there is no need to serve summons by publication, you According to SC, the new sec 14 does not distinguish. It
may have substituted service of summons applies to any action for as long as the defendant is
unknown or cannot be located. If he cannot be served with
-LEAVE OF COURT IS REQUIRED summons here in the Philippines, you can always resort to
Leave of court is required if your serve summons by summons by publication.
publication. You must file a motion for leave of court to
serve summons by publication. Section 8.Service upon entity without juridical personality. — When persons
associated in an entity without juridical personality are sued under the
name by which they are generally or commonly known, service may be
-ACTION IN PERSONAM AND CASE OF COLLECTION OF SUM effected upon all the defendants by serving upon any one of them, or upon
OF MONEY, SUMMONS BY PUBLICTION IS NOT ALLOWED, the person in charge of the office or place of business maintained in such
name. But such service shall not bind individually any person whose
ONLY PERSONAL SERVICE (N/A) connection with the entity has, upon due notice, been severed before the
-Case: Pantalion vs Asuncion action was brought. (9a)
The SC in two cases have made a rule that if the action is an
action in personam and a case of collection of sum of SERVICE UPON AN ENTITY WITHOUT JURIDICAL
money, summons by publication is not allowed. PERSONALITY
The law requires personal service on the defendant. If the defendant is an entity without a juridical personality,
IOW you can only serve summons by publication if an summons may be served to ANY OF THE OWNERS OF THE
action is an action in rem or quasi in rem. If it is an action is ENTITY OR EVEN TO AN EMPLOYEE of that entity.
personam (action that arises out of the privity of contract),
you cannot avail of summons by publication. Section 9.Service upon prisoners. — When the defendant is a prisoner confined
in a jail or institution, service shall be effected upon him by the officer
This is because personal service on the defendant is having the management of such jail or institution who is deemed deputized
required. as a special sheriff for said purpose. (12a)
-REMEDY: CONVERT PERSONAL ACTION TO REAL ACTION
(N/A) SUMMONS UPON PRISONERS
-Case: Citizen’s Insurance vs Herrera Summons shall be served on the WARDEN of the jail. The
However in this case, the court tried to find a way to go warden will act as a sheriff. He will be the one to serve the
around the prohibition. summons to the prisoner inside the jail, and he will be the
SC says service of summons applies only to action in rem or one to make the return to the court.
quasi in rem.
However there is a remedy. By converting an action in Section 10.Service upon minors and incompetents. — When the defendant is a
personam into action in rem or quais in rem. This is by minor, insane or otherwise an incompetent, service shall be made upon him
personally and on his legal guardian if he has one, or if none his guardian ad
ATTACHING THE PROPERTY OF THE DEFENDANT IN THE litemwhose appointment shall be applied for by the plaintiff. In the case of a
PHILIPPINES. minor, service may also be made on his father or mother. (l0a, 11a)
By attaching the property under rule 57, the court has now
acquired a lien over the property. So the court has now SUMMONS UPON A MINOR OR INCOMPETENT
acquired jurisdiction over the res. Summons must be served on the defendant, MINOR AND HIS
So the action now becomes an action quasi in rem where LEGAL GUARDIAN, parents.

Kwin
Section 11.Service upon domestic private juridical entity. — When the defendant is a Section 13.Service upon public corporations. — When the defendant is the
corporation, partnership or association organized under the laws of the Republic of the Philippines, service may be effected on the Solicitor General;
Philippines with a juridical personality, service may be made on the in case of a province, city or municipality, or like public corporations, service
president, managing partner, general manager, corporate secretary, may be effected on its executive head, or on such other officer or officers as
treasurer, or in-house counsel. (13a) the law or the court may direct. (15)
SERVICE UPON DOMESTIC PRIVATE JURIDICAL ENTITY SERVICE UPON PUBLIC CORPORATION
Meaning, domestic corporation. Summons shall be served upon the SolGen
The rules specify who will receive summons for the
corporation:
1. president Section 17.Leave of court. — Any application to the court under this Rule for
leave to effect service in any manner for which leave of court is necessary
2. corporate secretary shall be made by motion in writing, supported by affidavit of the plaintiff or
3. directors some person on his behalf, setting forth the grounds for the application. (19)
4. managing partners
5. general manager
6. treasurer Section 18.Proof of service. — The proof of service of a summons shall be made
in writing by the server and shall set forth the manner, place, and date of
7. in house counsel service; shall specify any papers which have been served with the process
and the name of the person who received the same; and shall be sworn to
Section 12.Service upon foreign private juridical entities. — When the defendant is a when made by a person other than a sheriff or his deputy. (20)
foreign private juridical entity which has transacted business in the
Philippines, service may be made on its resident agent designated in
accordance with law for that purpose, or, if there be no such agent, on the PROOF OF SERVICE OF SUMMONS
government official designated by law to that effect, or on any of its officers The proof of service of summons shall
or agents within the Philippines. (14a) 1. be made in writing by the server
2. set forth manner, place and date of service
SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITY 3. specify any papers which have been served with the
Here you have to distinguish: process
1. IF IT DOES NOT HAVE A REPRESENTATIVE OR AGENT IN THE 4. name of the person who received
PHILIPPINES, serve the summon to the government official 5. sworn when made by person other than the sheriff or his
tasked by our law to receive summons for and on behalf of deputy
the foreign corporation
a. so if the foreign corporation is a bank, you serve the
summons to the Central Bank Governor Section 19.Proof of service by publication. — If the service has been made by
b. if the foreign corporation is an insurance company, you publication, service may be proved by the affidavit of the printer, his
foreman or principal clerk, or of the editor, business or advertising manager,
serve the summons to the Insurance Commissioner to which affidavit a copy of the publication shall be attached and by an
affidavit showing the deposit of a copy of the summons and order for
What will the government official do? publication in the post office, postage prepaid, directed to the defendant by
registered mail to his last known address. (21)
He will immediately mail or send the summons to the main
office of that foreign corporation
PROOF OF SERVICE BY PUBLICATION
If the service has been made by publication, service may be
2. IF IT HAS A REPRESENTATIVE OR AGENT in the Philippines,
proved by AFFIDAVIT OF PUBLICATION of the printer, his
serve the summon to the agent in the Philippines
foreman or principal clerk or of the editor, of which a copy
of the publication shall be attached.
PERIOD TO ANSWER
The period to answer will also differ:
1. IF SUMMONS WAS SERVED THROUGH THE GOVERNMENT
OFFICIAL authorized to receive summons for and his behalf,
then the period to answer is 30 DAYS
2. IF THE SUMMONS WAS SERVED ON THE AUTHORIZED
AGENT OR REPRESENTATIVE of the foreign corporation in
the Philippines, then that foreign corporation will have 15
DAYS TO FILE ANSWER, like an ordinary defendant.

Kwin
Section 20.Voluntary appearance. — The defendant's voluntary appearance in RULE 15 MOTIONS
the action shall be equivalent to service of summons. The inclusion in a RULE 15
motion to dismiss of other grounds aside from lack of jurisdiction over the Motions
person of the defendant shall not be deemed a voluntary appearance. (23a) Section 1.Motion defined. — A motion is an application for relief other than by a
pleading. (1a)
VOLUNTARY APPEARANCE MOTIONS IN GENERAL

The new rules clarified this because there was controversy We will discuss motions in general, like:
before. 1. motion for postponement
-Case: Lanabal Drug Corp 2. motion to require the party to produce document for
GR: EQUIVALENT TO SERVICE OF SUMMONS inspection.
The defendant’s voluntary appearance in the action shall
be equivalent to the service of summons. MOTION
EXPT: WITH MOTION TO DISMISS A motion is any prayer or affirmative relief from the court
But the enclosure of the motion to dismiss or other other than that you have stated in your pleadings.
grounds aside from lack of jurisdiction over the person of
the defendant shall not be deemed to be a voluntary Section 2.Motions must be in writings. — All motions shall be in writing except
those made in open court or in the course of a hearing or trial. (2a)
appearance.
REQUIREMENTS FOR A VALID MOTION
The rule before is that when the defendant is not served with
1. in writing
summons, the court has not acquired jurisdiction and
EXPT: those that can be made orally in the court
therefore cannot proceed with the trial. The same is true
2. contents:
when there is improper service of summons.
a. law/basis
So if the court has not acquired jurisdiction over the
b. set for hearing
defendant, the court cannot go on with the trial of the case.
EXPT: non litigable motion
If the court insisted with continuing of the trial of the case
c. notice of hearing
the defendant may file a motion to dismiss under the
3. furnish a copy to the other party; proof of service
ground of lack of jurisdiction over the person of the
defendant
According to the court, the filing of the motion to dismiss
should not be interpreted as voluntary submission to the
NOT ALL MOTIONS ARE IN WRITING
jurisdiction of the court even if the defendant invoked other
TN however that not all motions are in writing. Because there
grounds for the motion to dismiss.
are motions that you can make in open court during the trial
Anyway, I will discuss this in detail when we go to Rule 16 on
of the case, usually for continuance.
grounds for motion to dismiss.
Example, you have a hearing this morning and because of the
So when you appear in court to question the jurisdiction over
length of testimony, the lawyer may move for continuance
your person, the rule before is you do it by special
for lack of material time. This is done in the court orally.
appearance so that you are not deemed to have waived
your right to question the jurisdiction of the court and be
interpreted ad having voluntarily submitted yourself to the
3Section 3.Contents. — A motion shall state the relief sought to be obtained and
Contents
jurisdiction of the court. the grounds upon which it is based, and if required by these Rules or
necessary to prove facts alleged therein, shall be accompanied by supporting
This was clarified by sec 20 of rule 14. affidavits and other papers. (3a)
If you file a motion to dismiss, the defendant’s voluntary

appearance of action shall be equivalent to a service of CONTENTS
summons. But the inclusion to dismiss of other grounds The motion should contain the basis of your motion, like the
aside from lack of jurisdiction shall not be deemed as laws that serve as the basis or support of your prayer or
voluntary appearance. relief asked from court

Kwin
Section 4.Hearing of motion. — Except for motions which the court may act Section 6.Proof of service necessary. — No written motion set for hearing shall
upon without prejudicing the rights of the adverse party, every written be acted upon by the court without proof of service thereof. (6a)
motion shall be set for hearing by the applicant.
Every written motion required to be heard and the notice of the hearing
thereof shall be served in such a manner as to ensure its receipt by the other SERVICE OF COPPY; PROOF OF SERVICE
party at least three (3) days before the date of hearing, unless the court for And you must inform the other party, because you will have
good cause sets the hearing on shorter notice. (4a) to furnish a copy to the other party.
Then you must have proof that you served a copy to the
HEARING OF MOTION other party.
A motion must be set for hearing. A motion that does not ask
the court for hearing will be treated as a mere scrap of So you put there:
paper. Copy furnish; Atty X, counsel for the defendant
-EXPT I hereby certify that I have served a copy of this motion to
But not all motions will be set for hearing. There are Atty X, counsel or the defendant and evidence by:
motions that can be acted upon by the court immediately That it was served personally by the messenger and that he
without hearing received it in (date)
CLASSIFICATION OF MOTIONS Any motion that does not comply with this requirement will
Motions can be classified into: be a mere scrap of paper.
1. litigable motions
2. non litigable motions. Section 7.Motion day. — Except for motions requiring immediate action, all
motions shall be scheduled for hearing on Friday afternoons, or if Friday is a
non-working day, in the afternoon of the next working day. (7a)
LM: it must be set for hearing.
NLM: need not set for hearing
FRIDAY: MOTION DAY
A motion day is always Friday. Friday afternoon is always the
LM: there are conflicting or adversarial arguments from
motion day.
opposing parties. It has to be heard by the court
Section 5.Notice of hearing. — The notice of hearing shall be addressed to all MONDAY: IF FRIDAY IS A NON WORKING DAY
parties concerned, and shall specify the time and date of the hearing which But if the Friday is a non working day, it shall be the
must not be later than ten (10) days after the filing of the motion. (5a) afternoon of the next working way, Monday.
NOTICE OF HEARING Section 8.Omnibus motion. — Subject to the provisions of section 1 of Rule 9, a
You have to state at the last part of the motion, to the clerk motion attacking a pleading, order, judgment, or proceeding shall include all
objections then available, and all objections not so included shall be deemed
of court: “please submit the foregoing motion for the waived. (8a)
consideration and resolution of this honorable court on
(date), at (time). OMNIBUS MOTION RULE
This requires that when you file a motion, specially a motion
NOT MORE THAN 10 DAYS AFTER FILING OF MOTION to dismiss, you have to put all the available grounds.
You have to set the date of hearing. And the rule is, the date Because if you fail to include a ground for a motion to
must not be more than 10 days from the time you filed the dismiss, that ground is already deemed waived.
motion.
The rules now requires that if the motion is a litigable motion, EXCEPTIONS
you must have to set it for hearing and you must be the one These are the grounds for motion to dismiss that are not
to fix the date of hearing. Do not leave it in the discretion of deemed waived even if not included:
the court. OW the court may throw away the motion. 1. LACK OF JURISDICTION OVER THE SUBJECT MATTER
2. LITIS PENDENTIA
COURT HAS FINAL DISCRETION 3. RES JUDICATA
Although the date may not be actually binding on the court. 4. PRESCRIPTION
Eventually the court may set it for hearing.

Kwin
Section 9.Motion for leave. — A motion for leave to file a pleading or motion RULE 16 MOTION TO DISMISS
shall be accompanied by the pleading or motion sought to be admitted. (n)
RULE 16
MOTION FOR LEAVE OF COURT Motion to Dismiss
Section 1.Grounds. — Within the time for but before filing the answer to the
When you file a motion for leave of court to admit a pleading, complaint or pleading asserting a claim, a motion to dismiss may be made on
(like motion for leave of court to admit an amended any of the following grounds:
complaint, or motion for leave of court to admit a (a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
supplemental pleading), the rule requires a MOTION FOR (c) That venue is improperly laid;
LEAVE TO FILE A PLEADING. If not accompanied in your (d) That the plaintiff has no legal capacity to sue;
pleading, the court will not act on your motion. (e) That there is another action pending between the same parties for the
same cause;
(f) That the cause of action is barred by a prior judgment or by the statute of
Because before, when you want the court to admit an limitations;
amended pleading or supplemental pleading, you only need (g) That the pleading asserting the claim states no cause of action;
(h) That the claim or demand set forth in the plaintiff's pleading has been
to file for a motion, and wait for the court to grant or deny paid, waived, abandoned, or otherwise extinguished;
it. (i) That the claim on which the action is founded is enforceable under the
If the court grants your motion to admit a supplemental or provisions of the statute of frauds; and
(j) That a condition precedent for filing the claim has not been complied with.
amended pleading, that’s the time that you submit your (1a)
supplemental or amended pleading.
WHEN TO FILE
But now, under the new rules, when you file your motion for Motion to dismiss must be filed within the reglementary
the admission of the pleading, you include the proposed period to answer. IOW you file it within the 15 day period to
amended pleading or supplemental pleading attached to it. answer from the time you received summons and
OW if you did not attach it, the court will not act on your compliant.
motion
GROUNDS FOR MOTION TO DISMISS
Section 10.Form. — The Rules applicable to pleadings shall apply to written 1. NO JURISDICTION OVER THE PERSON OF THE DEFENDING
motions so far as concerns caption, designation, signature, and other matters
of form. (9a) PARTY
When does the court acquire jurisdiction over the
FORM: SAME AS PLEADING defendant? Upon valid service of summons.
The rules on written pleadings will apply to motions as far as If the defendant has not been served with summons or that
captions, designations, signature and other matters of form there was improper service of summons, then there is no
jurisdiction over the person of the defendant.
-EXCEPTIONS
a. WAIVER ON THE PART OF THE DEFENDANT
b. VOLUNTARY APPEARANCE IN COURT despite the fact that
he has not received the summons and complaint, and
participated in the pleadings.
Example, when there was a collection case filed against
you, you immediately went to the plaintiff and asked him
for a compromise agreement.
c. BY ISSUANCE OF ALIAS SUMMONS instead of dismissing
the case
-IMPROPER SERVICE OF SUMMONS

-Case: Linger and Fisher vs IAC
SC said that the court should be careful in dismissing the
case on this particular ground because it is very unfair to the
plaintiff.
If the summons was not properly served by the sheriff on
the defendant, we should not dismiss the complaint right
away because that is not the fault of the plaintiff.
Instead, the court will issue a new summons and instruct
the sheriff to serve it properly this time.

Kwin
-REMEDY OF NON SERVICE OF SUMMONS OR IMPROPER 2. NO JURISDICTION OVER THE SUBJECT MATTER OF THE
SERVICE OF SUMMONS CLAIM
-Case: Dimitsli vs Perandos -GR: MAY BE RAISED ANYTIME
When you question the jurisdiction of the court over your -Case: De Leon vs CA
person because of improper service of summons or failure As a GR, the ground of lack of jurisdiction over the subject
of service of summons; you have to file a motion to dismiss matter may be raised anytime even for the first time on
on the ground of lack of jurisdiction over the person of the appeal.
defendant. -EXPT: ESTOPPEL BY LACHES
-MAKE SPECIAL APPEARANCE IN COURT -Case: Tijam vs Sibonghanoy
You have to do it by way of SPECIAL APPEARANCE IN However, if there is unreasonable delay in raising this
COURT for the purpose of questioning the jurisdiction of ground, you may no longer be allowed to invoke it under
your person. equitable doctrine of estoppel by laches
This way, you are not deemed to have abandoned your
defense of lack of jurisdiction. 3. IMPROPER VENUE
-IF YOU INCLUDE OTHER GROUNDS FOR MOTION TO You already know where to file a real action and a personal
DISMISS action.
But SC said that IF YOU INCLUDE OTHER GROUNDS FOR
MOTION TO DISMISS, then you are deemed to have waived 4. PLAINTIFF HAS NO LEGAL CAPACITY TO SUE
your right to question the jurisdiction of the court over your There are TWO TYPES OF LEGAL CAPACITY TO SUE:
person. Such special appearance will be of no avail. And the a. PLAINTIFF DOES NOT POSSES THE NECESSARY
party is deemed to have voluntarily submitted himself to the QUALIFICATION TO APPEAR BEFORE THE TRIAL such as:
jurisdiction of the court. 1. minor not represented by a guardian
2. insane not represented by a guardian
Later on, this was abandoned in the case of: b. PLAINTIFF FILED THE ACTION AS A REPRESENTATIVE
-Case: Lanabal Drug Corp vs CA PARTYBUT HAS NO NECESSARY AUTHORITY FROM THE
SC said that even if you include other grounds in the PRINCIPAL
motion to dismiss, you shall not be considered to have
waived your rights to question the jurisdiction of the courts. 5. LITIS PENDENTIA
It shall not be interpreted that you have voluntarily There is another action pending between the same parties
submitted yourself to the jurisdiction of the court; specially for the same cause of action
that we have the omnibus motion rule.
Under the Omnibus motion rule, all grounds available to -ELEMENTS:
you should be included in your motion to dismiss. OW all a. identity of parties between 2 actions
those grounds will be deemed waived. b. identity of rights asserted and relief prayed for
And this is supported by sec 20 of rule 14 that we have c. relief must be founded upon the same facts
discussed, which say s that the inclusion of other grounds in d. identity in this particulars should be such that any
your motion to dismiss aside from lack of jurisdiction over judgment that may be rendered on the action will amount
the defendant should not be considered a voluntary act of to res judicata
submission to the jurisdiction of the court.
-NOT NECESSARILLY DISMISS SECOND CASE
So you have 2 basis: -Case: Teodoro vs Mirasol
a. case of Lanabal vs CA When there is litis pendentia, or there is same action
b. Sec 20 Rule 14 pending in two courts between the same parties and it
involves the same issues, it does not necessarily followed
that the second case filed will be dismissed.
Because for all you know, the first case filed was just a
baseless or unfounded action to preempt the filing of the
second action.
So the court actually has the discretion to dismiss the first
action instead of the second action.

Kwin
6. RES JUDICATA AND PRESCRIPTION Section 2.Hearing of motion. — At the hearing of the motion, the parties shall
submit their arguments on the questions of law and their evidence on the
That the cause of action is barred by a prior judgment or by questions of fact involved except those not available at that time. Should the
the statute of limitations. case go to trial, the evidence presented during the hearing shall
automatically be part of the evidence of the party presenting the same. (n)
7. FAILURE TO STATE A CAUSE OF ACTION
That the pleading asserting the claim states no cause of MOTION TO DISMISS IS A LITIGABLE MOTION
action. A motion to dismiss is a litigable motion, and therefore, it
When this is the ground for motion to dismiss, the court must be set for hearing, the court will not grant or deny your
shall decide the motion on the basis of what is alleged in the motion without conducting hearing.
complaint. WON there is a cause of action should be
determined purely in the allegations of the complaint. GR: ALLOWED TO PRESENT EVIDENCE
In the motion to dismiss, the movant is allowed to present
8. PLAINTIFF’S CLAIM HAS BEEN PAID, WAIVED, evidence to substantiate his claim or ground for a motion to
ABANDONED, OR OTHERWISE EXTINGUISHED dismiss.
EXPT: GROUNDS OF NO JURISDICTION OVER SUBJECT
9. PLAINFIFF’S CLAIM IS UNENFORCEABLE UNDER THE MATTER OR NO CAUSE OF ACTION IN THE COMPLAINT
STATUTE OF FRAUDS However if the ground is lack of jurisdiction over the subject
-ART 1403 NCC matter; that the complaint shows no cause of action, the
Art. 1403. The following contracts are unenforceable, unless they are ratified: movant is not allowed to present anymore his evidence
(1) Those entered into in the name of another person by one who has been because in these two grounds, the movant is DEEMED TO
given no authority or legal representation, or who has acted beyond his
powers; HAVE HYPOTHETICALLY ADMITTED TO THE ALLEGATIONS in
(2) Those that do not comply with the Statute of Frauds as set forth in this the complaint.
number. In the following cases an agreement hereafter made shall be
unenforceable by action, unless the same, or some note or memorandum,
Section 3.Resolution of Motion. — After the hearing, the court may dismiss the
thereof, be in writing, and subscribed by the party charged, or by his agent;
action or claim, deny the motion, or order the amendment of the pleading.
evidence, therefore, of the agreement cannot be received without the
The court shall not defer the resolution of the motion for the reason that the
writing, or a secondary evidence of its contents:
ground relied upon is not indubitable.
(a) An agreement that by its terms is not to be performed within a year
In every case, the resolution shall state clearly and distinctly the reasons
from the making thereof;
therefor. (3a)
(b) A special promise to answer for the debt, default, or miscarriage of
another; HOW TO RESOLVE MOTION TO DISMISS
(c) An agreement made in consideration of marriage, other than a mutual How will the court resolve the motion to dismiss?
promise to marry;
(d) An agreement for the sale of goods, chattels or things in action, at a
The motion to dismiss will either be:
price not less than five hundred pesos, unless the buyer accept and receive 1. granted by the court
part of such goods and chattels, or the evidences, or some of them, of such 2. denied by the court
things in action or pay at the time some part of the purchase money; but
when a sale is made by auction and entry is made by the auctioneer in his
3. court will order the amendment of the pleading
sales book, at the time of the sale, of the amount and kind of property sold,
terms of sale, price, names of the purchasers and person on whose account AMENDMENT IS A MATTER OF RIGHT BEFORE RESPONSIVE
the sale is made, it is a sufficient memorandum;
(e) An agreement of the leasing for a longer period than one year, or for the
PLEADING
sale of real property or of an interest therein; Why allow to amend when there is a motion to dismiss?
(f) A representation as to the credit of a third person. A motion to dismiss is not a responsive pleading. And
(3) Those where both parties are incapable of giving consent to a contract.
therefore, the plaintiff can still amend his complaint. in fact,
the amendment here is considered a matter of right because
10. CONDITION PRECEDENT FOR FILING THE CLAIM HAS NOT
the defendant has not yet filed an answer.
BEEN COMPLIED WITH
-CONDITION PRECEDENT FOR THE FILING OF THE
B4: FOURTH OPTION – DEFER RESOLUTION
COMPLAINT
There used to be a fourth option in the new rules – that the
A. EXHAUSTION OF ADMITINISTRATIVE REMEDIES
court may defer the resolution of the motion to dismiss if it
B. REFERRAL OF THE CASE TO THE LUPONG TAGAPAMAYAPA
finds the ground to be not indubitable (DOUBTFUL)
C. IN SUITS BETWEEN MEMBERS OF THE FAMILY;
What it means is that when you file a motion to dismiss and
ALLEGATIONS OF EARNEST EFFORT TO SETTLE THE MATTER
the ground relied upon n doubtful, the court may just
AMICABLY
resolve it later and include that in the decision f the merits
of the case.
NOW: PROHIBIT DEFERRING OF RESOLUTION

Now under the new rules, there is a specific provision that
the court cannot defer the motion to dismiss. The court will
have to decide

Kwin
Section 4.Time to plead. — If the motion is denied, the movant shall file his Section 6.Pleading grounds as affirmative defenses. — If no motion to dismiss has
answer within the balance of the period prescribed by Rule 11 to which he been filed, any of the grounds for dismissal provided for in this Rule may be
was entitled at the time of serving his motion, but not less than five (5) days pleaded as an affirmative defense in the answer and, in the discretion of the
in any event, computed from his receipt of the notice of the denial. If the court, a preliminary hearing may be had thereon as if a motion to dismiss
pleading is ordered to be amended, he shall file his answer within the period had been filed. (5a)
prescribed by Rule 11 counted from service of the amended pleading, unless The dismissal of the complaint under this section shall be without prejudice
the court provides a longer period. (4a) to the prosecution in the same or separate action of a counterclaim pleaded
in the answer. (n)
REMEDY OF DEFENDANT F DENIAL OF MOTION TO DISMISS
If motion to dismiss is denied, the defendant has to FILE THE FILE AN ANSWER AND INCLUDE AFFIRMATIVE DEFENSES
ANSWER to the balance of the period. But in no case shall it If you have the grounds to file for a motion to dismiss, you
be less than 5 days. may opt not to file for a motion to dismiss. Instead, you will
Remember that the motion to dismiss interrupts the running file an answer and incorporate in your answer these grounds
of the reglementay period. in your motion to dismiss as your AFFIRMATIVE DEFENSES;
anyway you can treat it as a motion to dismiss because after
GR: NON APPEALABLE you have filed them, you can ask the court later on to hear
Can the defendant appeal? your affirmative defenses first before conducting a hearing
NO. The denial of the mption to dismiss is an interlocutory on the merits.
order. You cannot appeal the decision. So you can file a MOTION FOR PRELIMINARY HEARING for
EXPT: FILE CERTIORARI OR MOTION FOR PROHIBITION your affirmative defenses. This is in the nature of a hearing
Unless you can prove that the denial of your motion is of the motion to dismiss.
attended by grave abuse of discretion amounting to lack or The court can surely grant your prayer because if you can
in excess of jurisdiction; in which case, you may file a prove your defenses, you will be saving the court of its
certiorari or a motion for prohibition. precious time in hearing the case of its merits.
Actually the option is given to your.
Section 5.Effect of dismissal. — Subject to the right of appeal, an order granting
a motion to dismiss based on paragraphs (f), (h) and (i) of section 1 hereof PURPOSE
shall bar the refiling of the same action or claim. (n)
You may ask; why should I avail of that option when I could
file a motion to dismiss right away instead of answering?
REMEDIES OF PLAINTIFF OF GRANT OF MOTION TO DISMISS
This is to prevent amendment of the complaint.
1. APPEAL THE DISMISSAL
Because if I file a motion to dismiss, remember that a
If the motion to dismiss is granted by the court, the
motion to dismiss is not a responsive pleading. Therefore,
dismissal of the complaint is considered to be an
the plaintiff can still amend his complaint as a matter of
adjudication of the merits. Therefore, the remedy of the
right.
plaintiff is to APPEAL the dismissal.
But if I will instead file an answer and incorporate the
2. REFILE THE CASE
grounds for motion to dismiss an my affirmative defenses,
The plaintiff may refile the case if the ground for the
amendment of the complaint must be with leave of court,
dismissal is lack of jurisdiction over the subject matter or
and not a matter of right.
improper venue.
EXPT:
If the dismissal is based on the following grounds:
a. action is barred by prior judgment or statute of limitations
b. claim or demand has been paid, waived, abandoned or
OW extinguished
c. the claim of which the action is founded is unenforceable
under the statute of frauds

Kwin
RULE 17 DISMISSAL OF ACTION Section 2.Dismissal upon motion of plaintiff. — Except as provided in the
preceding section, a complaint shall not be dismissed at the plaintiff's
Rule 16 is the dismissal of the case at the instance of the instance save upon approval of the court and upon such terms and
defendant. It is the defendant that files a motion to dismiss conditions as the court deems proper. If a counterclaim has been pleaded by
citing defects in the complain. a defendant prior to the service upon him of the plaintiffs motion for
dismissal, the dismissal shall be limited to the complaint. The dismissal shall
Rule 17 refers also to the dismissal of the case but the be without prejudice to the right of the defendant to prosecute his
dismissal is not upon the initiative of the defendant but counterclaim in a separate action unless within fifteen (15) days from notice
upon the initiative: of the motion he manifests his preference to have his counterclaim resolved
in the same action. Unless otherwise specified in the order, a dismissal
1. of the plaintiff or under this paragraph shall be without prejudice. A class suit shall not be
2. of the court. dismissed or compromised without the approval of the court. (2a)
RULE 17
Dismissal of Actions
Section 1.Dismissal upon notice by plaintiff. — A complaint may be dismissed by
DISMISSAL OF COMPLAINT BY DEFENDANT AS A MATTER OF
the plaintiff by filing a notice of dismissal at any time before service of the JUDICIAL DISCRETION
answer or of a motion for summary judgment. Upon such notice being filed, When is the dismissal of the complaint at the instance of the
the court shall issue an order confirming the dismissal. Unless otherwise
stated in the notice, the dismissal is without prejudice, except that a notice
plaintiff no longer a matter of right of the plaintiff; in which
operates as an adjudication upon the merits when filed by a plaintiff who case here has to be leave of court?
has once dismissed in a competent court an action based on or including the a. after defendant files an answer
same claim. (1a)
b. after defendant files a motion for summary judgment
DISMISSAL OF COMPLAINT BY PLAINTIFF
HOW TO DISMISS
Under rule 17 the complaint may be dismissed by the plaintiff
1. MOTION OF WITHDRAWAL
either:
A motion must be filed in court by the plaintiff asking for
1. as a matter of right
the approval of his withdrawal of the complaint.
2. as a matter of judicial discretion
EFFECT OF DISMISSAL ON THE COUNTERCLAIM OF THE
DISMISSAL OF COMPLAINT BY PLAINTIFF AS A MATTER OF
DEFENDANT
RIGHT
1. COUNTERCLAIM CONTINUES IF NOTIFY COURT WITIN 15
When can the plaintiff dismiss the complaint as a matter of
DAYS
right?
Should the court grant the dismissal of the compliant, the
a. before defendant files an answer
counterclaim of the defendant in his answer is not deemed
b. before defendant files a motion for summary judgment
included if within 15 days, the defendant manifests to the
court that he wanted his counterclaim to be heard on the
HOW TO DISMISS
same court; or if not have the case tried as a separate case
1. NOTICE OF WITHDRAWAL
The dismissal of the complaint does not carry with it the
File a NOTICE OF DISMISSAL/WITHDRAWAL to the court
dismissal of the counter claim.
notifying the court that I have decided to dismiss my
complaint.
2. GR: WITHOUT PREJUDICE
We only need a notice because the court does not have
The dismissal of the complaint will be without prejudice
jurisdiction to deny it. In fact, it is just out of respect to the
also.
court that I will notify it that I have already decided to
EXPT: SPECIFIED IN THE ORDER
withdraw the case.
Unless the court specifies in the order.
2. ORDER CONFIRMING THE WITHDRAWAL
But here, despite the act that it is a matter of right, the
rules require the court will issue an ORDER CONFIRMING
THE WITHDRAWAL
GR: DISMISSAL WITHOUT PREJUDICE

The dismissal of the complaint at the instance of the plaintiff
is a dismissal without prejudice. Meaning, the plaintiff can
refile it later on.
EXPT: 2 DISMISSAL RULE
The only exception is when the dismissal is the second time
around done by the plaintiff. This is known as the TWO
DISMISSAL RULE.
If the plaintiff already dismissed the same case twice before
the defendant can file his answer, then the dismissal will
already be a considered as a dismissal with prejudice.

Kwin
Section 3.Dismissal due to fault of plaintiff. — If, for no justifiable cause, the OTHER INSTANCES WHEN THE COURT MAY DISMISS THE
plaintiff fails to appear on the date of the presentation of his evidence in
chief on the complaint, or to prosecute his action for an unreasonable length
CASE MOTU PROPRIO
of time, or to comply with these Rules or any order of the court, the This section provides for instances when the court may
complaint may be dismissed upon motion of the defendant or upon the dismiss the case motu proprio.
court's own motion, without prejudice to the right of the defendant to
prosecute his counterclaim in the same or in a separate action. This
There are however other instances when the case may
dismissal shall have the effect of an adjudication upon the merits, unless dismiss the case motu proprio:
otherwise declared by the court. (3a)
4. WHEN ON ITS FACE, THE COMPLIANT SHOWS THAT THERE
DISMISSAL OF THE COMPLAINT BY THE COURT - DUE TO IS:
FAULT OF PLAINTIFF A. NO JURISDICTION
Sec 3 is when the complaint is dismissed due to the fault of B. LITIS PENDENTIA
the plaintiff. And this is upon the instance of the court. C. RE JUDICATA
D. PRESCRIPTION
DISMISSAL WITH PREJUDICE
The dismissal of the complaint due to the fault of plaintiff is 5. UNDER THE RULES OF SUMMARY PROCEDURE, THE
with prejudice. COURT MAY OUTRIGHTLY DISMISS THE CASE
INSTANCES OF FAULT OF PLAINTIFF

1. FAILURE TO APPEAR ON THE DAY OF THE PRESENTATION
OF EVIDENCE IN CHIEF Section 4.Dismissal of counterclaim, cross-claim, or third-party complaint. — The
provisions of this Rule shall apply to the dismissal of any counterclaim,
cross-claim, or third-party complaint. A voluntary dismissal by the claimant
2. FAILURE TO PROSECUTE CASE WITHIN UNREASONABLE by notice as in section 1 of this Rule, shall be made before a responsive
LENGTH OF TIME pleading or a motion for summary judgment is served or, if there is none,
When you file a case in court, it is no longer the duty of the before the introduction of evidence at the trial or hearing. (4a)
court to set the case in trial. The plaintiff should file a
motion to set the case for pretrial. You have the obligation
to see to it the case will move.
When the defendant has already filed his answer, the
issues now are already deemed joined. When the issues are
already joined, the case is already ripe for pre trial.
In the old rules, it is the duty of the court to se the case for
pretrial conference.
But under the new rules, it is now the duty of the plaintiff
to ask the court to set it for pretrial. So you have to file a
motion to the court asking the court to set it for pretrial
because the issues are already joined and the case is already
ripe for pre-tail.
Failure to do such, the court will just wait. Then you will
receive an order stating: “your case is dismissed for lack of
interest or failure to prosecute the case within unreasonable
period of time”
3. FAILURE TO COMPLY WITH THE RULES OF THE COURT

WITHOUT JUSTIFIABLE REASON

Kwin
RULE 18 PRE-TRIAL 5. limitation of the number of witnesses
RULE 18 Court will ask the names and number of witnesses, the
Pre-Trial
nature of their testimony, the gist of their testimony.
Section 1.When conducted. — After the last pleading has been served and filed, if 6. determination of advisability of a preliminary reference of
shall be the duty of the plaintiff to promptly move ex parte that the case be issues to a commissioner
set for pre-trial (5a, R20)
The court will determine whether there is a need to refer
WHEN CONDUCTED the case to a commissioner before the court wil start the
Pre- trial is to be conducted AFTER THE LAST PLEADING HAS trial on the merits.
BEEN SERVED AND FILED.
7. determine propriety of rendering judgment on the
PLAINTIFF MOVE EX PARTE FOR PRE TRIAL pleadings, or summary judgment, or of dismissing the action
It shall be the duty of the plaintiff to promptly move ex parte should a valid ground be found to exist
that the case be set for pre trial.
8 advisability or necessity of suspending the proceedings
LAST PLEADING
Normally, the last pleading is the reply (answer to the 9. such other matters as may aid in the prompt disposition of
answer). Here the issues are already joined and the case is the action.
ripe for pretrial.
So the purpose of pretrial is actually to find a way by which
the case can be resolved in the earliest possible time.
Section 2.Nature and purpose. — The pre-trial is mandatory. The court shall
consider :
(a) The possibility of an amicable settlement or of a submission to alternative
modes of dispute resolution;
Section 3.Notice of pre-trial. — The notice of pre-trial shall be served on
(b) The simplification of the issues;
counsel, or on the party who has no counsel. The counsel served with such
(c) The necessity or desirability of amendments to the pleadings;
notice is charged with the duty of notifying the party represented by him.
(d) The possibility of obtaining stipulations or admissions of facts and of
(n)
documents to avoid unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to a commissioner; NOTICE OF PRE TRIAL
(g) The propriety of rendering judgment on the pleadings, or summary
judgment, or of dismissing the action should a valid ground therefor be
Once the pre trial is set, the court should set out the notice of
found to exist; pre trial to the parties.
(h) The advisability or necessity of suspending the proceedings; and
(i) Such other matters as may aid in the prompt disposition of the action. (1a,
R20)
GR: SERVED ON THE COUNSEL
The notice of pre trail shall be served on the lawyer, not
PURPOSE OF PRETRIAL necessarily the parties. Notice to counsel is enough. Notice
1. possibility of an amicable settlement or of a submission to to counsel is considered notice to client
alternative modes of dispute resolution
One of the main purposes of pretrial is for the court to find EXPT: COURT PROVIDES THAT IT BE SERVED TO PARTIES
means by which the parties could settle their dispute Not unless the court provides that it shall also be served on
amicably. the parties.
2. simplification of the issues NOTICE NEED NOT ALWAYS BE IN WRITING

-Case: Arcilla vs Arcilla
3. determine the necessity or desirability of amendments to SC ruled that the notice need not be in writing all the time
the pleadings as in the case of a notice given in open court in the presence
of the parties.
4. obtain stipulations or admissions of facts and of documents Even if the notice of pretrial was made in an open court by
to avoid unnecessary proof the judge, that will already be sufficient. What is important
It is during the pretrial that the court will ask the parties, is that parties are notified of the pre trial
can you not stipulate on what acts that both of you will
agree and admit.
Those facts that are not controverted by parties; you will
no longer need to prove during the trial of the case. Only
those disputed facts will be proven during the trial of the
case.

Kwin
Section 4.Appearance of parties. — It shall be the duty of the parties and their Section 5.Effect of failure to appear. — The failure of the plaintiff to appear when
counsel to appear at the pre-trial. The non-appearance of a party may be so required pursuant to the next preceding section shall be cause for
excused only if a valid cause is shown therefor or if a representative shall dismissal of the action. The dismissal shall be with prejudice, unless other-
appear in his behalf fully authorized in writing to enter into an amicable wise ordered by the court. A similar failure on the part of the defendant shall
settlement, to submit to alternative modes of dispute resolution, and to be cause to allow the plaintiff to present his evidence ex parte and the court
enter into stipulations or admissions of facts and of documents. (n) to render judgment on the basis thereof. (2a, R20)
MANDATORY APPEARANCE EFFECT OF FAILURE TO APPEAR

During the pretrial, the presence of the parties and their 1. if you are the PLAINTIFF, then the case may be dismissed
lawyers is mandatory. The presence of the lawyer without 2. if you are the DEFENDANT, you will be declared in default
his client is not sufficient. and the plaintiff will be allowed to present his evidence ex
parte
CONDITIONS TO EXCUSE FROM MANDATORY APPEARANCE
However a party may be excused in not appearing during the EFFECT OF ORDER LIFTING THE DECLARATION OF THE
pretrial if these conditions are present: DEFENDANT IN DEFAULT
1. that there is a valid and justifiable reason for his absence If the plaintiff has already finished presenting his evidence ex
As in the case of illness; he is very sick that he cannot parte when the defendant filed a motion for reconsideration
appear in the pretrial of the order declaring his as in default and the court granted
2. he authorized somebody to appear for him such motion, is there a need for them to go back to pre trial?
3. the authorized person must be clothed with the proper NO.
authority in writing to enter into amicable settlement and -Case: DBP vs CA
stipulations of facts SC sais that there is no need for another pre trial. The
The SPECIAL POWER OF ATTORNEY must clearly state defendant will just be allowed to cross examine the
that the person is authorized to enter into amicable witnesses already presented by the plaintiff. Thereafter, the
settlement and stipulations of facts. defendant will be allowed to present his evidence in chief.
-PURPOSE
Because the pretrial conference will become useless if However, this ruling of DBP vs CA was modified by SC in the
the person you authorized does not have the authority to case of:
settle the case amicably. -Case:Yang vs CA
-EFFECT OF FAILURE OF COMPLAINCE The order lifting the declaration of the defendant as in
His presence will not be recognized by the court. It is as if default does not revert the action bask to is pretrial stage or
he does not exist. authorize much less a second pre trial unless the parties
themselves had voluntarily agreed that the case be set anew
IF A PARTY TO CASE IS A CORPORATION: BOARD for pre trial.
RESOLUTION
Remember that a corporation acts through it s board. so the So in the first case, SC said that there is no need for
person who will represent the person during the pre trial another pre trial. We just allow the defendant to cross
conference must also be clothed with the proper authority examine the witnesses of the plaintiff, then he will present
from the corporation. Such authority is called a BOARD his evidence.
RESOLUTION. In the second case, SC said that there is still no need for a
SPA assigned by the president of the corporation is not pre trial except if the two parties requested that they will a
sufficient because the president is not the one who decides new pre trial.
for the corporation, but the board.

Kwin
Section 6.Pre-trial brief. — The parties shall file with the court and serve on Section 7.Record of pre-trial. — The proceedings in the pre-trial shall be
the adverse party, in such manner as shall ensure their receipt thereof at recorded. Upon the termination thereof, the court shall issue an order which
least three (3) days before the date of the pre-trial, their respective pre-trial shall recite in detail the matters taken up in the conference, the action taken
briefs which shall contain, among others: thereon, the amendments allowed to the pleadings, and the agreements or
(a) A statement of their willingness to enter into amicable settlement or admissions made by the parties as to any of the matters considered. Should
alternative modes of dispute resolution, indicating the desired terms thereof; the action proceed to trial, the order shall, explicitly define and limit the
(b) A summary of admitted facts and proposed stipulation of facts; issues to be tried. The contents of the order shall control the subsequent
(c) The issues to be tried or resolved; course of the action, unless modified before trial to prevent manifest
(d) The documents or exhibits to be presented stating the purpose thereof; injustice. (5a, R20)
(e) A manifestation of their having availed or their intention to avail
themselves of discovery procedures or referral to commissioners; and
(f) The number and names of the witnesses, and the substance of their RECORD OF PRETRIAL
respective testimonies. During the pretrial conference, everything that has been
Failure to file the pre-trial brief shall have the same effect as failure to appear discussed by the parties and the judge must be put on
at the pre-trial. (n)
record. The proceeding in the pretrial conference must be
recorded.
PRE TRIAL BRIEF
Under the new rules, the parties are requested to submit a
PRETRIAL ORDER
pretrial brief before the start of the pre trial.
Upon the termination thereof, the court will issue a pretrial
order and recite in detail the matters taken up in the
WHEN SUBMITTED
conference.
It must be submitted to the court at least 3 days before the
The pre trial order shall explicitly define and limit the issues
pre trial.
to be triad.
The content of the order shall control subsequent cause of
CONTENTS
action unless modified by the court.
1. statement of their willingness to enter into amicable
settlement or alternative modes of dispute resolution
2. summary of admitted facts and proposed stipulation of
facts
3. issues to be tried or resolved
4. documents or exhibits to be presented stating the purpose
thereof
5. manifestation of their having availed or their intention to
avail themselves of discovery procedures or referral to
commissioners
6. number and names of the witnesses, and the substance of
their respective testimonies
EFFECT OF FAILURE OF COMPLIANCE

Failure to file a pre trial brief before the date of pre trial has
the same effect as failure to appear before the pre trial.
IOW your presence will not be recognized by the court.
1. if you are the PLAINTIFF, then the case may be dismissed
2. if you are the DEFENDANT, you will be declared in default
and the plaintiff will be allowed to present his evidence ex
parte

Kwin
November 30, 2011 Section 3.Pleadings-in-intervention. — The intervenor shall file a complaint-in-
intervention if he asserts a claim against either or all of the original parties,
or an answer-in-intervention if he unites with the defending party in
RULE 19 INTERVENTION resisting a claim against the latter. (2[c]a, R12)
RULE 19 Section 4.Answer to complaint-in-intervention. — The answer to the complaint-

Intervention in-intervention shall be filed within fifteen (15) days from notice of the order
admitting the same, unless a different period is fixed by the court. (2[d]a,
INTERVENTION R12)
Intervention is proceeding in an action or a suit where a third
person is allowed to intervene because he has a legal HOW TO INTERVENE
interest on the subject of intervention 1. File a motion for intervention and ask for leave of court to
intervene
GROUNDS FOR INTERVENTION 2. Attach a copy of pleading of intervention to your motion
Grounds for intervention: You attach complaint of intervention or answer in
1. legal interest on the matter under litigation intervention.
2. legal interest in the success of either party If you want to side with the plaintiff, you file a complaint
3. legal interest in the success of both parties in intervention.
4. intervenor is so situated to be adversely affected by the If you want to side with the defendant, you file an
distribution or disposition of the property in the court under answer in intervention
litigation If you don’t want to side to any because you claim you
have a better right against the original parties, you file a
INTERVENTION IS A MATTER OF JUDICIAL DISCRETION complaint in intervention against the original plaintiff and
Intervention is a matter of judicial discretion, not a matter of original defendant
right. You have to file a motion to leave of court to intervene
EFFECT OF DISMISSAL OF MAIN ACTION ON MOTION FOR
FACTORS TO CONSIDER IN DENYING INTERVENTION INTERVENTION
The court may deny your intervention? Effect of the dismissal of the main action on your motion for
There are 2 factors the court may consider to deny intervention? Example. A file a case against B. You
intervention: intervened. What if the complaint of A is dismissed, would it
1. WON the intervention will unduly delay or prejudice the mean the dismissal of your intervention?
adjudication of the rights of the party There are conflicting cases on this:
2. WON the intervenor’s right may be fully protected in the -Case: Big Country Ranch Corp vs CA
separate proceedings SC said that an intervention is merely an ancillary
If any of two factors are present, the court may deny the proceeding to your main action. And because of that, when
intervention. the main action is dismissed, necessarily it should also be
dismissed.
Section 1.Who may intervene. — A person who has a legal interest in the matter
in litigation, or in the success of either of the parties, or an interest against
both, or is so situated as to be adversely affected by a distribution or other But in another case;
disposition of property in the custody of the court or of an officer thereof -Case: Metropolitan Trust Bank vs Presiding judge of RTC
may, with leave of court, be allowed to intervene in the action. The court
shall consider whether or not the intervention will unduly delay or prejudice No. The intervention should be allowed to continue even if
the adjudication of the rights of the original parties, and whether or not the the main action is dismissed
intervenor's rights may be fully protected in a separate proceeding. (2[a],
[b]a, R12)
-RULE: If your intervention is anchored on the cause of
action of either party, the dismissal of the main case results
Section 2.Time to intervene. — The motion to intervene may be filed at any time to the dismissal of the intervention
before rendition of judgment by the trial court. A copy of the pleading-in- Example. If you are the surety of the loan agreement, you
intervention shall be attached to the motion and served on the original intervened with the case where you are also a principal
parties. (n)
debtor. Later on, the case was dismissed because the
plaintiff withdrew his complaint. The intervention is not
TIME TO INTERVENE: ANYTIME BEFORE JUDGMENT
allowed to continue because it hinges on the defense of the
When can you file an intervention?
defendant.
Motion to intervene may be file at any time before the
-However if your intervention is not anchored on the cause
rendition of judgment.
of action on the cause of action of the plaintiff or the
IOW even if the plaintiff and defendant had already
defense of the defendant, rather, it is based on the fact
presented its evidence, as long as the court has not yet
that you have a better right against the parties, then the
decided the case, you can intervene.
intervention is allowed to go on.

Kwin
Example. A and B are in litigation of the ownership of the RULE 20 CALENDAR OF CASES
land. X intervened with documents to prove his ownership. RULE 20
Calendar of Cases
The intervention will not be dismissed because he has a Section 1.Calendar of cases. — The clerk of court, under the direct supervision
cause of action against either or both the parties. of the judge, shall keep a calendar of cases for pre-trial, for trial, those whose
trials were adjourned or postponed, and those with motions to set for
REMEDY OF DENIAL OF MOTION TO INTEVENE hearing. Preference shall be given to habeas corpus cases, election cases,
special civil actions, and those so required by law. (1a, R22)
Intervention is a matter of judicial discretion.
What happens if the court denies it, what is your remedy? Is DUTY OF CLERK OF COURT
the court compellable by mandamus? When a case is filed in court, it is the duty of the clerk of court
-Case: First Philippines Holdings Corp vs SB to put the case in the calendar of cases.
-GR: NOT COMPELLABLE BY MANDAMUS
No. you cannot compel the court by mandamus to exercise 2 CALENDAR OF CASES
a discretionary power Clerk of court is mandated to keep 2 calendar of cases:
-EXPT: GRAVE ABUSE OF DISCRETION – MANDAMUS OR 1. cases ready for pre trial
CERTIORARI 2. cases ready for trial
But if the denial is attended by grave abuse of discretion
amounting to lack or in excess of jurisdiction, CERTIORARI DUTY TO SET PRE TRIAL CONFERENCE IS ON PLAINTIFF
OR MANDAMUS may be availed of. Under the new rules, it is not the duty of the clerk of court to
set pre trial conference.
It is the duty of the person who filed the case to make sure
that the case is scheduled for pretrial immediately after the
issues are joined. OW your case may be DISMISSED FOR
FAILURE TO PROSECUTE your case for an unreasonable
period of time.
It is not the duty of the clerk of court but the duty of the
plaintiff.
However when there is a pre trial, it is the duty of the clerk of
court to calendar case for the trial
CASES GIVEN PRFERENCE IN THE CALENDAR OF CASES

1. Habeas corpus
2. Election cases
3. Special civil action
4. Other cases requiring immediate action
Section 2.Assignment of cases. — The assignment of cases to the different

branches of a court shall be done exclusively by raffle. The assignment shall
be done in open session of which adequate notice shall be given so as to
afford interested parties the opportunity to be present. (7a, R22)
ASSIGNMENT OF CASES
If you file a case in a court with several branches, which
branch will hear your case?
Example. In Cebu, there are 20 RTC branches. You file your
case in the clerk of courts office in the RTC. Your case will be
raffled off to any of than the 20 salas.
EVERY TUESDAY, OPEN DOOR PROCEEDING, WITH 3 JUDGES

It is done every Tuesday afternoon. And the rule requires that
all interested parties are free to attend the raffling of cases.
All are free to observe. It should not be a closed door
proceeding
Now, the executive judge should be present to conduct it,
together with 2 other judges. So there are at least 3 judges
who are present

Kwin
RULE 21 SUBPOENA WHO WILL ISSUE SUBPOENA
RULE 21 The subpoena may be issued by —
Subpoena
1. THE COURT BEFORE WHOM THE WITNESS IS REQUIRED TO
ATTEND
Section 1.Subpoena and subpoena ducestecum. — Subpoena is a process directed to -you are asked to appear in court where the case is pending
a person requiring him to attend and to testify at the hearing or the trial of
an action, or at any investigation conducted by competent authority, or for
because you will have to testify
the taking of his deposition. It may also require him to bring with him any -example. A filed a case against B in branch 34. Brach 34 may
books, documents, or other things under his control, in which case it is issue a subpoena to a witness to testify in the case.
called a subpoena ducestecum. (1a, R23)
2. THE COURT OF THE PLACE WHERE THE DEPOSITION IS TO

SUBPOENA BE TAKEN
Subpoena is a written order emanating from the court or -this is subpoena issued by the court in connection with the
investigative body requiring the person to appear before it deposition. The court where you are to testify is not the
for investigation. same court handling the case. The court was merely
requested by its coordinate court to do the deposition
KINDS taking.
1. Subpoena ad testificandum -deposition is done at the place where the witness resides.
2. Subpoena duces tecum
-example. A filed a case against B in RTC, branch 34. One of
3. Subpoena duces tecum ad testificandum the witnesses is residing in Davao city and he is not willing to
testify in Cebu because he is very sick and he cannot travel.
1. SUBPOENA AD TESTIFICANDUM You may ask for the taking of the deposition in Davao. The
You are required to appear in a court and testify. court in Davao may be requested to take the deposition of
the witness.
2. SUBPOENA DUCES TECUM
You are told to bring some records and present these in
3. THE OFFICER OR BODY AUTHORIZED BY LAW TO DO SO IN
court. CONNECTION WITH INVESTIGATIONS CONDUCTED BY SAID
OFFICER OR BODY
3. SUBPOENA DUCES TECUM AD TESTIFICANDUM -who are these officers?
You are required to testify and bring some records Any officer who is given by law the power to conduct an
investigation has also the power to issue a subpoena. Many
belong to the executive branch of the government.
Examples, as part of investigative powers:
Section 2.By whom issued. — The subpoena may be issued by —
(a) the court before whom the witness is required to attend; a. Quasi judicial bodies or agencies
(b) the court of the place where the deposition is to be taken; b. Fiscal – under DOJ
(c) the officer or body authorized by law to do so in connection with
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 4. ANY JUSTICE OF THE SC OR CA IN ANY CASE OR
investigation pending within the Philippines. INVESTIGATION PENDING WITHIN THE PHILIPPINES.
When application for a subpoena to a prisoner is made, the judge or officer
shall examine and study carefully such application to determine whether the
same is made for a valid purpose.
No prisoner sentenced to death, reclusion perpetua or life imprisonment and
who is confined in any penal institution shall be brought outside the said
penal institution for appearance or attendance in any court unless
authorized by the Supreme Court (2a, R23)

Kwin
Section 3.Form and contents. — A subpoena shall state the name of the court Section 5.Subpoena for depositions. — Proof of service of a notice to take a
and the title of the action or investigation, shall be directed to the person deposition, as provided in sections 15 and 25 of Rule 23, shall constitute
whose attendance is required, and in the case of a subpoena ducestecum, it sufficient authorization for the issuance of subpoenas for the persons named
shall also contain a reasonable description of the books, documents or in said notice by the clerk of the court of the place in which the deposition is
things demanded which must appear to the court prima facie relevant. (3a, to be taken. The clerk shall not, however, issue a subpoena ducestecum to any
R23) such person without an order of the court. (5a, R23)
FORM OF SUBPOENA SUBPOENA FOR DEPOSITIONS

It is a written order from the court or investigative body If the witness is very important to the case, and he cannot be
compelled because he lives more than 100km, he can be
CONTENTS subpoenaed for deposition.
1. Rep of the Philippines, RTC Cebu, Branch 24, 7th Judicial A court may where the witness resides may issue a subpoena
Region, Cebu City in connection with a case that is pending in another court.
2. Title of the case: Plaintiff vs Defendant
3. Docket number WHO WILL SUBPOENA
4. Caption: subpoena Who will issue the subpoena?
5. By virtue given by law to the undersigned investigating The CLERK OF COURT OF THE REQUESTED COURT PVDD
fiscal of the City of Cebu, Office of the City Prosecutor, you there is an order from the judge.
are hereby required to appear before his office on (date), in The judge will not issue the order unless there is proof that
connection of the case of (title) there is NOTICE TO ALL PARTIES. You cannot take the
deposition of the witness without informing the parties.
Section 4.Quashing a subpoena. — The court may quash a

subpoena ducestecum upon motion promptly made and, in any event, at or Section 6.Service. — Service of a subpoena shall be made in the same manner
before the time specified therein if it is unreasonable and oppressive, or the as personal or substituted service of summons. The original shall be
relevancy of the books, documents or things does not appear, or if the person exhibited and a copy thereof delivered to the person on whom it is served,
in whose behalf the subpoena is issued fails to advance the reasonable cost tendering to him the fees for one day's attendance and the kilometrage
of the production thereof. allowed by these Rules, except that, when a subpoena is issued by or on
The court may quash a subpoena ad testificandum on the ground that the behalf of the Republic of the Philippines or an officer or agency thereof, the
witness is not bound thereby. In either case, the subpoena may be quashed tender need not be made. The service must be made so as to allow the
on the ground that the witness fees and kilometrage allowed by these Rules witness a reasonable time for preparation and travel to the place of
were not tendered when the subpoena was served. (4a, R23) attendance. If the subpoena is ducestecum, the reasonable cost of producing
the books, documents or things demanded shall also be tendered. (6a, R23)
QUASHING A SUBPOENA
When a subpoena is issued to you requiring you to appear in SERVICE OF SUBPOEANA
the court, are you duty bound to attend the subpoena? A subpoena is served in the same manner a summons is
GR: yes served:
EXPT: But if there are valid reasons for you not to attend, you 1. PERSONAL SERVICE
have to file a motion to quash the subpoena 2. SUBSTITUTED SERVICE
If the person is not around after several attempts.
GROUNDS You can serve it to a person with suitable age or discretion
A. SUBPOENA DUCES TECUM in the place of the defendant or to the person in charge of
1. The subpoena is UNREASONABLE OR OPPRESSIVE the office of the defendant
2. The RELEVANCY of the books, things or documents do not TN Substituted service of summons can only be resorted to
appear proved to be unavailing, after several attempts; the
3. The person on whose behalf the subpoena is issued FAILED defendant cannot be located.
TO ADVANCE THE REASONABLE COST for the production One of the requirement of a valid substituted of summons
thereof. is that here is proof for several times of attempt but it
-because if you request for subpoena duces tecum, you will proved to be futile.
rquire someone to bring these in court, you must be ready
to shoulder the expenses, specially when these records are Section 7.Personal appearance in court. — A person present in court before a
judicial officer may be required to testify as if he were in attendance upon a
voluminous. subpoena is sued by such court or officer. (10, R23)
B. SUBPOENA AD TESTIFICANDUM
1. VIATORY RIGHT OF THE WITNESS
-a witness is not bound to appear in court to testify if he
resides beyond 100km from the court where he is to reside,
even if the person requesting is willing to pay for the cost

Kwin
Section 8.Compelling attendance. — In case of failure of a witness to attend, the RULE 22 COMPUTATION OF TIME
court or judge issuing the subpoena, upon proof of the service thereof and of RULE 22
the failure of the witness, may issue a warrant to the sheriff of the province, Computation of Time
or his deputy, to arrest the witness and bring him before the court or officer
where his attendance is required, and the cost of such warrant and seizure
of such witness shall be paid by the witness if the court issuing it shall Section 1.How to compute time. — In computing any period of time prescribed
determine that his failure to answer the subpoena was willful and without or allowed by these Rules, or by order of the court, or by any applicable
just excuse. (11, R23) statute, the day of the act or event from which the designated period of time
begins to run is to be excluded and the date of performance included. If the
last day of the period, as thus computed, falls on a Saturday a Sunday, or a
COMPELING ATTENDANCE legal holiday in the place where the court sits, the time shall not run until
GR: A WITNESS CANNOT BE COMPELLED TO TESTIFY IF HE the next working day. (a)
WAS NOT SERVED WITH SUBPOENA:
EXPT: IF THE WITNESS IS INSIDE THE COURT ROOM. EXCLUDE THE FIRST DAY, INCLUDE THE LAST DAY
If you are inside the court room, you may be compelled to The basic rule in the computation of time or period is:
testify. exclude the first day, include the last day.
When you receive the summons today, Nov 30, start counting
the 15 day period tomorrow. You have until Dec 15 to file
Section 9.Contempt. — Failure by any person without adequate cause to obey answer.
a subpoena served upon him shall be deemed a contempt of the court from
which the subpoena is issued. If the subpoena was not issued by a court, the Section 2.Effect of interruption. — Should an act be done which effectively
disobedience thereto shall be punished in accordance with the applicable interrupts the running of the period, the allowable period after such
law or Rule. (12a R23) interruption shall start to run on the day after notice of the cessation of the
cause thereof.
The day of the act that caused the interruption shall be excluded in the
Section 10.Exceptions. — The provisions of sections 8 and 9 of this Rule shall computation of the period. (n)
not apply to a witness who resides more than one hundred (100) kilometers
from his residence to the place where he is to testify by the ordinary course EFFECT OF INTERRUPTIONS
of travel, or to a detention prisoner if no permission of the court in which his
case is pending was obtained. (9a, R23)
There are acts or events that may interrupt the running of the
period to answer:
RULE ON VIATORY RIGHTS 1. filing of the motion to dismiss
If the witness resides more than 100km from the court, he 2. filing of motion of bill of particulars
cannot be compelled to testify in the case.
EXCLUDE THE DAY OF FILING THE MOTION
APPLLICATION ON CIVIL CASES ONLY- NOT CRIMINAL CASES If on Dec 8, I filed a motion to dismiss. The court may conduct
-Case:People vs Montego a hearing to resolve my motion. The filing interrupts the
-Case:Gonzoga vs Kitaing running of the period to answer.
SC said that the viatory right of a witness applies only to The day the motion to dismiss was filed should also be
civil cases. It will not apply to criminal case. excluded in the period.
REASON: the constitution of the Philippines provides as one
of the constitutional rights of an accused person, the right to EXCLUDE THE DAY OF RECIPT OF ORDER DENYING THE
a compulsory process to secure the attendance of the MOTION
witnesses and the production of the evidence. And the period will have to run again when you received the
IOW if you are the accused, you can compel the accused to decision.
testify. On Dec 8, only 7 days are used. I have 8 days left.
That is a constitutional right that cannot be curtailed by the When I receive the order denying the motion to dismiss on
rules of court. Jan 10, I will not include Jan 10 in counting 8 days. Jan 18 is
my deadline to file the answer.
Fresh period rule - only applies to denial of motion for reconsideration

Kwin
AFTER BREAK RULE 23 DEPOSITION PENDING ACTION
RULE 23
MODES OF DISCOVERY Depositions Pending Action
You can compel the parties to lay down all their cards, and Section 1.Depositions pending action, when may be taken. — By leave of court after
divulge all his evidences during the trial. This is to avoid jurisdiction has been obtained over any defendant or over property which is
the subject of the action, or without such leave after an answer has been
ambushes and surprises served, the testimony of any person, whether a party or not, may be taken, at
the instance of any party, by deposition upon oral examination or written
Why can it shorten the process? interrogatories. The attendance of witnesses may be compelled by the use of
a subpoena as provided in Rule 21. Depositions shall be taken only in
Because if you will know the evidences of the party, you accordance with these Rules. The deposition of a person confined in prison
will know whether you are losing or not. You may then find a may be taken only by leave of court on such terms as the court prescribes.
way if you can settle the case amicably. (1a, R24)
MODES OF DISCOVERY WHEN MAY BE TAKEN

Rules 23 – 28: There is already a pending case n court and you want to take
23 – DEPOSITION DE MENE ESSE the deposition of the witness before the trial of the case.
24 – DEPOSITION EN PERPETUA RE MEMORIA
25 – WRITTEN INTERROGATORIES TO PARTIES WHEN LEAVE OF COURT IS REQUIRED
26 – REQUEST FOR ADMISSION OF ADVERSE PARTIES When you avail of this deposition, is leave of court required?
27 – PRODUCTION OF INSPECTION OF A DOCUMENT OR It depends.
THING 1. BEFORE FILING OF ANSWER – REQUIRE LEAVE OF COURT
28 – PHYSICAL OR MENTAL EXAMINATIONS OF PERSONS It is required after the court has acquired jurisdiction over
the defendant but before he has filed his answer.
2. AFTER FILING OF ANSWER – NOT REQUIRE LEAVE OF
DEPOSITION COURT
The first two rules refer to deposition taking. But if the defendant has already filed his answer, no leave
DEPOSITION is the taking of the testimony of the witness in of court is required.
advance before he is supposed to testify in court. If there is already an answer, I will only need to tell the
court by filing a notice to take deposition, and furnish a copy
Why are you allowed to take the testimony in advance? to the defendant and his counsel, and to the court, out of
There may be many reasons like: respect.
1. Dying The deposition taking is already a matter of right when the
2. About to leave Philippines for good. deposition is already filed.
The court can decide whether the deposition taking will be
2 KINDS OF DEPOSITION TAKING done by oral examination or written interrogatories
1. Deposition pending action/ deposition de mene esse
2. Deposition before action/ pending appeal/ deposition en Section 2.Scope of examination. — Unless otherwise ordered by the court as
perperpetuam re memoriam provided by section 16 or 18 of this Rule, the deponent may be examined
regarding any matter, not privileged, which is relevant to the subject of the
pending action, whether relating to the claim or defense of any other party,
1. DEPOSITION PENDING ACTION including the existence, description, nature, custody, condition, and
There is already a case pending in court, and you want to location of any books, documents, or other tangible things and the identity
take eh testimony of a witness before the start of the trial of and location of persons having knowledge of relevant facts. (2, R24)
the case.
SCOPE OF EXAMINATION
-WAYS OF CONDUCTING What are the questioned that you may ask to a witness in a
How is it done? There are two ways of conducting: deposition taking?
a. DEPOSITION UPON ORAL EXAMINATION The deponent may be asked in any matter provided that it
b. DEPOSITION UPON WRITTEN INTERROGATORIES is:
1. not privileged
-DEPOSITION UPON ORAL EXAMINATION 2. relevant to the subject of a pending action.
You ask the witness right away orally (like in real hearing),
in the presence of deposition officer. Section 3.Examination and cross-examination. — Examination and cross-
examination of deponents may proceed as permitted at the trial under
-DEPOSITION BY WRITTEN INTERROGATORIES sections 3 to 18 of Rule 132. (3a, R24)
Instead of asking personally, you just send your written
questions. The deposition officer will be the one to ask the
questions. The other party will also send his cross
interrogatories. Parties did not appear personally.

Kwin
Section 4.Use of depositions. — At the trial or upon the hearing of a motion or RULE: CANNOT USE DEPOSITION OF THE WITNESS WHO IS
an interlocutory proceeding, any part or all of a deposition, so far as
admissible under the rules of evidence, may be used against any party who
AVALIABLE TO TESTIFY
was present or represented at the taking of the deposition or who had due TN: You cannot use the deposition if the witness is available
notice thereof, in accordance with any one of the following provisions; to testify.
(a) Any deposition may be used by any party for the purpose of contradicting
or impeaching the testimony of deponent as a witness;
If I use the deposition of a witness that dying of cancer. When
(b) The deposition of a party or of any one who at the time of taking the the trial of the case begins, and the person is still alive, you
deposition was an officer, director, or managing agent of a public or private cannot use his deposition in lieu of his testimony in court.
corporation, partnership, or association which is a party may be used by an
adverse party for any purpose; You have to present him.
(c) The deposition of a witness, whether or not a party, may be used by any -REASON
party for any purpose if the court finds: (1) that the witness is dead, or (2) Why? Because there is no substitute for the personal
that the witness resides at a distance more than one hundred (100)
kilometers from the place of trial or hearing, or is out of the Philippines, appearance in order for the judge to see the demeanor of
unless it appears that his absence was procured by the party offering the the witness in the trial of the case.
deposition, or (3) that the witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment, or (4) that the party offering the
deposition has been unable to procure the attendance of the witness by
subpoena; or (5) upon application and notice, that such exceptional Section 5.Effect of substitution of parties. — Substitution of parties does not
circumstances exist as to make it desirable, in the interest of justice and affect the right to use depositions previously taken; and, when an action has
with due regard to the importance of presenting the testimony of witnesses been dismissed and another action involving the same subject is afterward
orally in open court, to allow the deposition to be used; and brought between the same parties or their representatives or successors in
(d) If only part of a deposition is offered in evidence by a party, the adverse interest, all depositions lawfully taken and duly filed in the former action
party may require him to introduce all of it which is relevant to the part may be used in the latter as if originally taken therefor. (5, R24)
introduced, and any party may introduce any other parts. (4a, R24)
EFFECT OF SUBSTITUTION OF PARTIES
USE OF DEPOSITIONS If there is substitution of parties, deposition taken before the
When a deposition is taken on a witness, is a person who substitution can still be used if that witness is not anymore
took it bound to present that in court? available to testify
-NOT BOUND TO BE USED IN COURT It can be used in any manner allowed by the rules.
No. Deposition is just the preservation of the witness for
future use. You cannot be compelled to use the testimony if Section 6.Objections to admissibility. — Subject to the provisions of section 29 of
you do not like his testimony. this Rule, objection may be made at the trial or hearing, to receiving in
evidence any deposition or part thereof for any reason which would require
the exclusion of the evidence if the witness were then present and testifying
How is deposition used? (6, R24)
-MAY BE USED TO IMPEACH TESTIMONY OF A WITNESS
It maybe used to contradict or impeach the testimony of OBJECTION TO ADMISSIBILITY
the deponent as a witness. When can you object to the admissibility?
I learned that you are going to use the person as a witness. When a deposition is to be taken, you can raise to the
I will pre empt you. I will take the deposition of the witness objection that the conduct of the deposition is not
before you can coach him. Before you can present him in warranted under the rules.
court, I can take his deposition. But if the deposition is conducted already, during the
The advantage is that I have already preserved the deposition taking, you can also raise objection but the
testimony. If you will use them in your case and they will deposition officer cannot rule on the objection.
contradict the deposition, I can use the deposition to
impeach the witness. Who will rule on the objections?
The judge of the court where the case is pending. He will
DEPOSITION OF PARTY OR OFFICER OF A CORPORATION do that later on when the evidence is offered during the
MAY BE USED FOR ANY PURPOSE formal offer of exhibits.
The deposition of the party or officer of the corporation may
be used by the adverse for any purpose. If there are any objection to the taking of the person, like
questioning the qualification of the person conducting the
DEPOSITION OF A WITNESS - REQUIREMENTS deposition, you have to raise that right away before the
Deposition of a witness WON a party to the case may be used conduct of the deposition.
by the party for any purpose if the court fids the following:
1. If the witness is already dead
2. The witness resides more than 100km, invoking the viatory
right
3. The witness cannot testify because of age, sickness or
infirmity
4. The witness does not appear despite subpoena issued

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-CANNOT USE DEPOSITION IF THE WITNESS IS AVAILABLE TO DEPOSITION TAKING IN THE PHILIPPINES: HOW DONE
TESTIFY Any trial judge in the place where the witness resides can
-Case: Vda de Segia be made a deposition officer
A deposition can be used when the deponent can no longer You can ask the judge in Davao to act as a deposition
be presented in court in order to testify. Where the witness officer. The witness will appear before him.
is available to testify, and the witness is not one of those It can be done by oral examination or written
excepted under sec 4 of this rule, then the deposition shall interrogatories.
not be allowed.
It can also be taken before lawyer or notary public.
OBJECTIONS SHALL BE NOTED ONLY THE THE DEPOSITION You may request him to be a deposition officer. It may be
OFFICER conducted I his law office
Objection to questions propounded on the deponent during
the deposition taking shall be noted only by the deposition When question are asked to the witness, the party may
officer object. The deposition officer cannot rule on the objections,
During the conduct of examination upon oral examination, but will only be noted. Objections are ruled only when the
the deposition officer does not have the authority to rule on depositions are presented or offered in court.
the objections.
Later on, when that deposition is offered n court, that is the The deposition taking should be attended by a
time you ask the court to rule on the objections you have stenographer. If you have it done by a lawyer in Davao who
raised. is to hire a stenographer. The questions and answers will be
reduced to stenographic notes. The deponent will be asked
WHO CAN BE A DEPOSITION OFFICER to read the transcripts. It will be placed in a sealed envelope.
Section 10.Persons before whom depositions may be taken within the Philippines. — Such envelop shall be sent to the clerk of court of the court
Within the Philippines depositions may be taken before any judge, notary
public, or the person referred to in section 14 hereof. (10a, R24)
trying the case.
Section 11.Persons before whom depositions may be taken in foreign countries. — In a BTW, there is a deposition fee to be paid to the deposition
foreign state or country, depositions may be taken (a) on notice before a officer.
secretary of embassy or legation, consul general, consul, vice-consul, or
consular agent of the Republic of the Philippines, (b) before such person or
officer as may be appointed by commission or under letters rogatory; or (c) DEPOSITION TAKING ABROAD: HOW DONE
the person referred to in section 14 hereof. (11a, R24) If the witness is abroad, it can be by oral examination or
written interrogatories.
BTW, who can be a deposition officer? The lawyer of the other parties can also send cross
The deposition of a witness may be taken in or out the interrogatories. And the proponent can also submit redirect
Philippines. interrogatories. And there can be re cross interrogatories.
If taken in the Philippines, the following can act as a The deposition officer will read them to the witness.
deposition officer:
1. Judge in any trial court Section 7.Effect of taking depositions. — A party shall not be deemed to make a
2. Notary public person his own witness for any purpose by taking his deposition. (7, R24)
3. Any persons authorized to administer oath
Section 8.Effect of using depositions. — The introduction in evidence of the
deposition or any part thereof for any purpose other than that of
If the deposition is to be taken abroad, the following can be contradicting or impeaching the deponent makes the deponent the witness
a deposition officer: of the party introducing the deposition, but this shall not apply to the use by
an adverse party of a deposition as described in paragraph (b) of section 4 of
1. On notice before the secretary of embassy or legation this Rule. (8, R24)
2. Consul general
3. Vice consul Section 9.Rebutting deposition. — At the trial or hearing any party may rebut
4. Consular agent any relevant evidence contained in a deposition whether introduced by him
or by any other party. (9, R24)
5. Before such person or officer as may be commissioned or
under letter rogatory
6. Any person referred to in sec 14
-Judge or notary public appointed by the judge here

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Section 12.Commission or letters rogatory. — A commission or letters rogatory Section 13.Disqualification by interest. — No deposition shall be taken before a
shall be issued only when necessary or convenient, on application and person who is a relative within the sixth degree of consanguinity or affinity,
notice, and on such terms, and with such direction as are just and or employee or counsel of any of the parties, or who is a relative within the
appropriate. Officers may be designated in notices or commissions either by same degree, or employee of such counsel; or who is financially interested in
name or descriptive title and letters rogatory may be addressed to the the action. (13a, R24)
appropriate judicial authority in the foreign country. (12a, R24)
DISQUALIFICATION: DEPOSITION OFFICER
HOW APPONTMENT IS DONE One cannot be a deposition officer if he is related to either
Appointment is done either by: th
party or to the lawyers of either party up to thee 6 civil
1. letters commission degree by consanguinity or affinity.
2. letters rogatory
Section 14.Stipulations regarding taking of depositions. — If the parties so stipulate
LETTERS COMMISSION in writing, depositions may be taken before any person authorized to
administer oaths, at any time or place, in accordance with these Rules and
It is a letter from the court here requesting the secretary of when so taken may be used like other depositions. (14a, R24)
the Philippine Embassy or Legation or the Consul or Consul
General to conduct the deposition taking Section 15.Deposition upon oral examination; notice; time and place. — A party
desiring to take the deposition of any person upon oral examination shall
give reasonable notice in writing, to every other party to the action. The
-REMEDY IF THE WITNESS WILL NOT OBEY notice shall state the time and place for taking the deposition and the name
If the witness will not obey, what is your remedy? and address of each person to be examined, if known, and if the name is not
If the witness now lives in L.A., how are you going to take known, a general description sufficient to identify him or the particular class
or group to which he belongs. On motion of any party upon whom the
the deposition? notice is served, the court may for cause shown enlarge or shorten the time.
When the witness is residing abroad and the deposition (15, R24)
taking will be done abroad, you will have to do it with leave DEPOSITION UPON ORAL EXAMINATION
of court. Because you will ask for the assistance of the court
trying the case here to request the witness to answer the Section 16.Orders for the protection of parties and deponents. — After notice is
served for taking a deposition by oral examination, upon motion seasonably
depositions. made by any party or by the person to be examined and for good cause
shown, the court in which the action is pending may make an order that the
It’s possible that the witness will not obey. Can the officers deposition shall not be taken, or that it may be taken only at some
designated place other than that stated in the notice, or that it may be taken
of the Philippine embassy site him in contempt of court? only on written interrogatories, or that certain matters shall not be inquired
NO. The clerk of the Philippine Embassy or the secretary of into, or that the scope of the examination shall be held with no one present
the Embassy or Legation does not have contempt power. except the parties to the action and their officers or counsel, or that after
being sealed the deposition shall be opened only by order of the court, or
that secret processes, developments, or research need not be disclosed, or
So the remedy is to avail of letter rogatory. that the parties shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court or the
court may make any other order which justice requires to protect the party
LETTER ROGATORY or witness from annoyance, embarrassment, or oppression. (16a, R24)
It is a letter from our court addressed to its counterpart
abroad. So this is a court to court request. A judge requests ORDER FOR PROTECTION OF DEPONENT
the judge abroad to do the deposition taking of such The deponent may ask for protective order from the court if
witness. the witness feels the deposition taking is intended mainly to
So the judge abroad upon receipt of the letters rogatory from harass him. The court can issue the following order:
our court in the Philippines will issue a subpoena and will 1. that the deposition shall not be taken
require the witness to appear in court. 2. that the deposition shall be taken only at some designated
place other than that designated by the proponent
-REMEDY IF THE WITNESS WILL NOT OBEY 3. that it can only be taken by written interrogatories and not
If the witness will not appear, he can now be sent to jail by oral examination
because he is disobeying the judge abroad. He can now site 4. that certain matter shall not be inquired into
you in contempt of court. 5. that the scope of examination shall be held with no one
present except the parties to the action and their officers
LETTERS ROGATORY CAN ONLY BE RESORTED TO BY THE and counsels
COURT IF LETTERS COMMISSION FAIL 6. that after being sealed, the deposition shall be taken only
-Case: by order of the court
Letters rogatory can only be resorted to by the court if 7. that the secret processes, developments, research need
letters commission fail. We do not directly ask the court not be disclosed
abroad. If it is not obeyed by the witness, then the last 8. that the parties shall simultaneously file specified
recourse is to use the letters rogatory. documents or information enclosed in sealed envelopes to
be opened as directed by the court

Kwin
Section 17.Record of examination, oath; objections. — The officer before whom the Section 23.Failure to attend of party giving notice. — If the party giving the notice
deposition is to be taken shall put the witness on oath and shall personally, of the taking of a deposition fails to attend and proceed therewith and
or by some one acting under his direction and in his presence, record the another attends in person or by counsel pursuant to the notice, the court
testimony of the witness. The testimony shall be taken stenographically may order the party giving the notice to pay such other party the amount of
unless the parties agree otherwise. All objections made at the time of the the reasonable expenses incurred by him and his counsel in so attending,
examination to the qualifications of the officer taking the deposition, or to including reasonable attorney's fees. (23a, R24)
the manner of talking it, or to the evidence presented, or to the conduct of
any party, and any other objection to the proceedings, shall be noted by the
officer upon the deposition. Evidence objected to shall be taken subject to EFFECT OF FAILURE TO ATTEND OR REQUESTING PARTY
the objections. In lieu of participating in the oral examination, parties served What is the effect of requesting party’s failure to attend?
with notice of taking a deposition may transmit written interrogatories to The court will require you to pay or reimburse the other
the officers, who shall propound them to the witness and record the
answers verbatim. (17, R24)
party to reimburse their expenses, including attorney’s fees
and other costs in going to the office of the deposition
Section 18.Motion to terminate or limit examination. — At any time during the officer.
taking of the deposition, on motion or petition of any party or of the
deponent, and upon a showing that the examination is being conducted in
bad faith or in such manner as unreasonably to annoy, embarrass, or oppress
the deponent or party, the court in which the action is pending or the Section 24.Failure of party giving notice to serve subpoena. — If the party giving the
Regional Trial Court of the place where the deposition is being taken may notice of the taking of a deposition of a witness fails to serve a subpoena
order the officer conducting the examination to cease forthwith from taking upon him and the witness because of such failure does not attend, and if
the deposition, or may limit the scope and manner of the taking of the another party attends in person or by counsel because he expects the
deposition, as provided in section 16 of this Rule. If the order made deposition of that witness to be taken, the court may order the party giving
terminates the examination, it shall be resumed thereafter only upon the the notice to pay to such other party the amount of the reasonable expenses
order of the court in which the action is pending. Upon demand of the incurred by him and his counsel in so attending, including reasonable
objecting party or deponent, the taking of the deposition shall be suspended attorney's fees. (24a, R24)
for the time necessary to make a notice for an order. In granting or refusing
such order, the court may impose upon either party or upon the witness the EFFECT OF FAILURE OF REQUESTING PARTY TO SERVE
requirement to pay such costs or expenses as the court may deem
reasonable. (18a, R24) SUBPOENA
If you requested for the deposition of the witness, and the
Section 19.Submission to witness; changes; signing. — When the testimony is fully witness did not appear because you forgot to request for the
transcribed, the deposition shall be submitted to the witness for issuance of a subpoena, you shall also be answerable for
examination and shall be read to or by him, unless such examination and
reading are waived by the witness and by the parties. Any changes in form
that if the other party attended the deposition taking that
or substance which the witness desires to make shall be entered upon the did not push through. This includes attorney’s fees.
deposition by the officer with a statement of the reasons given by the
witness for making them. The deposition shall then be signed by the Section 25.Deposition upon written interrogatories; service of notice and of
witness, unless the parties by stipulation waive the signing or the witness is
interrogatories. — A party desiring to take the deposition of any person upon
ill or cannot be found or refuses to sign. If the deposition is not signed by the
written interrogatories shall serve them upon every other party with a
witness, the officer shall sign it and state on the record the fact of the waiver
notice stating the name and address of the person who is to answer them
or of the illness or absence of the witness or the fact of the refusal to sign
and the name or descriptive title and address of the officer before whom the
together with the reason be given therefor, if any, and the deposition may
deposition is to be taken. Within ten (10) days thereafter, a party so served
then be used as fully as though signed, unless on a motion to suppress under
may serve cross-interrogatories upon the party proposing to take the
section 29 (f) of this Rule, the court holds that the reasons given for the
deposition. Within five (5) days thereafter, the latter may serve re-direct
refusal to sign require rejection of the deposition in whole or in part. (19a,
interrogatories upon a party who has served cross-interrogatories. Within
R24)
three (3) days after being served with re-direct interrogatories, a party may
serve recross-interrogatories upon the party proposing to take the
Section 20.Certification, and filing by officer. — The officer shall certify on the deposition. (25, R24)
deposition that the witness was duly sworn to by him and that the
deposition is a true record of the testimony given by the witness. He shall
then securely seal the deposition in an envelope indorsed with the title of DEPOSITION UPON WRITTEN INTERROGATORIES
the action and marked "Deposition of (here insert the name of witness)" and Deposition can either by oral examination or oral
shall promptly file it with the court in which the action is pending or send it interrogatories
by registered mail to the clerk thereof for filing. (20, R24)
The court may decide that the deposition shall not be done
Section 21.Notice of filing. — The officer taking the deposition shall give by oral examination but by written interrogatories. Normally
prompt notice of its filing to all the parties. (21, R24) this will happen if the witness lives in a far away place and it
is very expensive to go to him.
Section 22.Furnishing copies. — Upon payment of reasonable charges therefor,
the officer shall furnish a copy of the deposition to any party or to the
The parties will send him questions. And the deposition
deponent. (22, R24) officer will be the one to read the questions nd record the
answer of the witness.
Section 26.Officers to take responses and prepare record. — A copy of the notice and
copies of all interrogatories served shall be delivered by the party taking the
deposition to the officer designated in the notice, who shall proceed
promptly, in the manner provided by sections 17, 19 and 20 of this Rule, to
take the testimony of the witness in response to the interrogatories and to
prepare, certify, and file or mail the deposition, attaching thereto the copy of
the notice and the interrogatories received by him. (26, R24)

Kwin
Section 27.Notice of filing and furnishing copies. — When a deposition upon RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
interrogatories is filed, the officer taking it shall promptly give notice thereof RULE 24
to all the parties, and may furnish copies to them or to the deponent upon Depositions Before Action or Pending Appeal
payment of reasonable charges therefor. (27, R24) Section 1.Depositions before action; petition. — A person who desires to
perpetuate his own testimony or that of another person regarding any
Section 28.Order for the protection of parties and deponents. — After the service of matter that may be cognizable in any court of the Philippines may file a
the interrogatories and prior to the taking of the testimony of the deponent, verified petition in the court of the place of the residence of any expected
the court in which the action is pending, on motion promptly made by a adverse party. (1a R134)
party or a deponent, and for good cause shown, may make any order DEPOSITION BEFORE ACTION
specified in sections 15, 16 and 18 of this Rule which is appropriate and just
or an order that the deposition shall not be taken before the officer
The other kind of deposition is deposition in perpetuam re
designated in the notice or that it shall not be taken except upon oral memoriam.
examination. (28a, R24)
INSTANCES
Section 29.Effect of errors and irregularities in depositions. —
1. there is yet no case filed
(a) As to notice. — All errors and irregularities in the notice for taking a
deposition are waived unless written objection is promptly served upon the 2. there is a case filed now pending on appeal
party giving the notice.
(b) As to disqualification of officer. — Objection to taking a deposition because of LEAVE OF COURT S REQUIRED
disqualification of the officer before whom it is to be taken is waived unless
made before the taking of the deposition begins or as soon thereafter as the Is leave of court required when you take a deposition in
disqualification becomes known or could be discovered with reasonable perpetuam re memoriam?
diligence. You have to file a petition in the court of the place where
(c) As to competency or relevancy of evidence. — Objections to the competency of
witness or the competency, relevancy, or materiality of testimony are not the prospective party resides.
waived by failure to make them before or during the taking of the A person who desires to perpetuate his own testimony or
deposition, unless the ground, of the objection is one which might have been that of another person regarding any matter that may be
obviated or removed if presented at that time.
(d) As to oral examination and other particulars. — Errors and irregularities
cognizable in any court of the Philippines may file a VERIFIED
occurring at the oral examination in the manner of taking the deposition in PETITION in the court of the place of the residence of any
the form of the questions or answers, in the oath or affirmation, or in the expected adverse party.
conduct of the parties and errors of any kind which might be obviated,
removed, or cured if promptly prosecuted, are waived unless reasonable
objection thereto is made at the taking of the deposition. Unlike in rule 23, which can be done either with leave of
(e) As to form of written interrogatories. — Objections to the form of written court or not. Here, it is always with leave of court because
interrogatories submitted under sections 25 and 26 of this Rule are waived
unless served in writing upon the party propounding them within the time
you have to file a petition. And you file it in the place where
allowed for serving succeeding cross or other interrogatories and within the prospective adverse party resides.
three (3) days after service of the last interrogatories authorized. It contemplates a situation where there is no case filed but
(f) As to manner of preparation. — Errors and irregularities in the manner in
which the testimony is transcribed or the deposition is prepared, signed,
you are anticipating that a case will be filed by you or
certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the against you. It is a deposition taking in anticipation of a case
officer under sections 17, 19, 20 and 26 of this Rule are waived unless a to be filed.
motion to suppress the deposition or some part thereof is made with
reasonable promptness after such defect is, or with due diligence might have
been, ascertained. (29a, R24) Section 2.Contents of petition. — The petition shall be entitled in the name of
the petitioner and shall show: (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; (c) the facts which he desires to establish by the proposed
testimony and his reasons for desiring to perpetuate it; (d) the names or a
description of the persons he expects will be adverse parties and their
addresses so far as known; and (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 perpetuating their testimony. (2, R134)
CONTENTS OF PETITION
1. 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
2. the subject matter of the expected action and his interest
therein
3. the facts which he desires to establish by the proposed
testimony and his reasons for desiring to perpetuate it
4. the names or a description of the persons he expects will
be adverse parties and their addresses so far as known
5. the names and addresses of the persons to be examined

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Section 3.Notice and service. — The petitioner shall serve a notice upon each Section 7.Depositions pending appeal. — If an appeal has been taken from a
person named in the petition as an expected adverse party, together with a judgment of a court, including the Court of Appeals in proper cases, or
copy of the petition, stating that the petitioner will apply to the court, at a before the taking of an appeal if the time therefor has not expired, the court
time and place named therein, for the order described in the petition. At in which the judgment was rendered may allow the taking of depositions of
least twenty (20) days before the date of the hearing, the court shall cause witnesses to perpetuate their testimony for in the event of further
notice thereof to be served on the parties and prospective deponents in the proceedings in the said court. In such case the party who desires to
manner provided for service of summons. (3a, R134) perpetuate the testimony may make a motion in the said court for leave to
take the depositions, upon the same notice and service thereof as if the
action was pending therein. The motion shall state (a) the names and
NOTICE AND SERVICE OF PETITION addresses of the persons to be examined and the substance of the testimony
You have to furnish a copy of the petition to the expected which he expects to elicit from each, and (b) the reason for perpetuating
adverse party their testimony. If the court finds that the perpetuation of the testimony is
proper to avoid a failure or delay of justice, it may make an order allowing
The court must see to it that at least 20 days before date of the deposition to be taken, and thereupon the depositions may be taken and
hearing, the court shall make notice thereof to be served on used in the same manner and under the same conditions as are prescribed in
the adverse parties and the expected deponents. these Rules for depositions taken in pending actions. (7a, R134)
Section 4.Order and examination. — If the court is satisfied that the DEPOSITION PENDING APPEAL
perpetuation of the testimony may prevent a failure or delay of justice, it Allowed if the case has already been decided by the lower
shall make an order designating or describing the persons whose deposition
may be taken and specifying the subject matter of the examination and
court and the case is appealed to the higher court.
whether the depositions shall be taken upon oral examination or written If you anticipate that the appellate court may conduct further
interrogatories. The depositions may be taken in accordance with Rule 23 proceedings or reception of evidence or the appellate court
before the hearing. (4a, R134)
will return the case to the trial court for further proceedings,
you may take the deposition of your prospective witnesses
WHO DECIDES THE TYPE OF DEPOSITION?
in order to preserve their testimony.
The court may decide if the deposition shall be oral or written
interrogatories.
Example. You filed for MNT; it was denied. You appealed the
Initially, it is the requesting party who will decide. case to the appellate court. The issue is WON you have the
If the requesting party decides, the decision may be overruled
right to present additional evidence. While the case is on
by the court if found to be unfair to the parties.
appeal, the witness you intended to present is suddenly
inflicted with a serious illness, you can take his testimony
Section 5.Reference to court. — For the purpose of applying Rule 23 to
depositions for perpetuating testimony, each reference therein to the court while the case is still pending. Because the appellate court
in which the action is pending shall be deemed to refer to the court in which might decide in your favor and return the case to TC which
the petition for such deposition was filed. (5a, R134)
might accept your evidence.
Section 6.Use of deposition. — If a deposition to perpetuate testimony is taken
under this Rule, or if, although not so taken, it would be admissible in
evidence, it may be used in any action involving the same subject matter
sub-sequently brought in accordance with the provisions of sections 4 and 5
of Rule 23. (6a, R134)

Kwin
RULE 25 INTERROGATORIES TO PARTIES Section 3.Objections to interrogatories. — Objections to any interrogatories may
RULE 25 be presented to the court within ten (10) days after service thereof, with
Interrogatories to Parties notice as in case of a motion; and answers shall be deferred until the
objections are resolved, which shall be at as early a time as is practicable.
(3a)
Section 1.Interrogatories to parties; service thereof. — Under the same conditions
specified in section 1 of Rule 23, any party desiring to elicit material and OBJECTION TO WRITTEN INTERROGATORIES
relevant facts from any adverse parties shall file and serve upon the latter
written interrogatories to be answered by the party served or, if the party
Objections to any interrogatories may be presented to the
served is a public or private corporation or a partnership or association, by court within ten (10) days after service thereof, with notice
any officer thereof competent to testify in its behalf. (1a) as in case of a motion; and answers shall be deferred until
the objections are resolved.
INTERROGATORIES TO PARTIES
These are written questions that you address to other parties Section 4.Number of interrogatories. — No party may, without leave of court,
for him to answer, while the case is pending. serve more than one set of interrogatories to be answered by the same party.
(4)
DEPOSITION-RULE 23/24 VS WRITTEN INTERROGATORIES-

NUMBER OF INTERROGATORIES ALLOWED
RULE 25
How many written interrogatories can be allowed?
GR: 1
23: Addressed to any person who is a witness
EXPT court allows you
25: Addressed only to the party of the case (not a witness)
Section 5.Scope and use of interrogatories. — Interrogatories may relate to any
23: Done by a deposition officer, you address the questions matters that can be inquired into under section 2 of Rule 23, and the
to the deposition officer who will read them to the answers may be used for the same purposes provided in section 4 of the
same Rule. (5a)
witness
25: There is no deposition officer, you address the question SCOPE OF INTERROGATORIES
directly to the parties. Any matter under sec 2 of rule 23:
1. not privileged
WHEN LEAVE OF COURT IS REQUIRED 2. relevant to case
Is leave of court required?
It depends Section 6.Effect of failure to serve written interrogatories. — Unless thereafter
1. before answer – leave of court allowed by the court for good cause shown and to prevent a failure of
2. after answer – no leave of court justice, a party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court, or to give a
deposition pending appeal. (n)
It is necessary only when there is yet no answer. Under rule
25, it says: “under the same conditions specified in sec 1 of EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES
rule 23”. (!!!)
You are barred or precluded from using the other party as a
witness in court unless allowed by court thereafter allowed
Section 2.Answer to interrogatories. — The interrogatories shall be answered by the court for good cause shown and to prevent a failure
fully in writing and shall be signed and sworn to by the person making
them. The party upon whom the interrogatories have been served shall file of justice.
and serve a copy of the answers on the party submitting the interrogatories
within fifteen (15) days after service thereof unless the court on motion and So if you have some questions to your opponent, you should
for good cause shown, extends or shortens the time. (2a)
first do this by way or written interrogatories. If you did not
ask that question to him, you are not allowed to use him as
ANSWER TO INTERROGATORIES
When an interrogatory to party is filed, that party is bound to your witness.
answer that written interrogatories within 15 days.
It shall be answered fully in writing and shall be signed and
sworn to by the person making them. The party upon whom
the interrogatories have been served shall file and serve a
copy of the answers on the party submitting the
interrogatories within fifteen (15) days

Kwin
RULE 26 ADMISSION BY ADVERSE PARTY them again by way of an admission and the defendant did
RULE 26 not answer it, he is not deemed to have impliedly admitted
Admission by Adverse Party
Section 1.Request for admission. — At any time after issues have been joined, a
the matter requested.
party may file and serve upon any other party may file and serve upon any Here, the plaintiff filed a collection case against the
other party a written request for the admission by the latter of the defendant. The plaintiff attached to his complaint an
genuineness of any material and relevant document described in and
exhibited with the request or of the truth of any material and relevant
actionable document which is a promissory note allegedly
matter of fact set forth in the request. Copies of the documents shall be signed by the defendant.
delivered with the request unless copy have already been furnished. (1a) When the defendant filed his answer, he denied it
specifically and answered that such promissory note was not
ADMISSION BY ADVERSE PARTY signed by him.
This is also addressed to you opponent. After the answer, the plaintiff filed a request for admission
Written request for the admission of the genuineness of any on the genuineness of the promissory note. He defendant
material and relevant document described therein. did not answer it. so the plaintiff now says he is now
deemed to have impliedly admitted the genuineness of the
REQUEST FOR ADMISSION actionable document.
You can request admission from the opposing party on the SC said there is no need because that is already denied in
materiality and genuineness of a particular document. the answer.
WHEN MAY BE FILED – ONLY AFTER THE ISSUES ARE JOINED Section 3.Effect of admission. — Any admission made by a party pursuant to
such request is for the purpose of the pending action only and shall not
When can you file? constitute an admission by him for any other purpose nor may the same be
At any time after the issues are joined – after the used against him in any other proceeding. (3)
defendant filed his answer. Joined in the sense that the
court can determine the issues in the case. The issues are Section 4.Withdrawal. — The court may allow the party making an admission
under the Rule, whether express or implied, to withdraw or amend it upon
now ripe for pre trial. More so after the reply. such terms as may be just. (4)
LEAVE OF COURT IS NOT REQUIRED WITHDRAWAL OF ADMISSION

Leave of court is not required because there is already an Can the defendant withdraw his admission to the request?
answer. It is not necessary when you avail of this particular YES. The court may allow the party making an admission
mode of discovery. under the Rule, whether express or implied, to withdraw or
amend it upon such terms as may be just.
Section 2.Implied admission. — Each of the matters of which an admission is
requested shall be deemed admitted unless, within a period designated in
the request, which shall not be less than fifteen (15) days after service Section 5.Effect of failure to file and serve request for admission. — Unless otherwise
thereof, or within such further time as the court may allow on motion, the allowed by the court for good cause shown and to prevent a failure of justice
party to whom the request is directed files and serves upon the party a party who fails to file and serve a request for admission on the adverse
requesting the admission a sworn statement either denying specifically the party of material and relevant facts at issue which are, or ought to be, within
matters of which an admission is requested or setting forth in detail the the personal knowledge of the latter, shall not be permitted to present
reasons why he cannot truthfully either admit or deny those matters. evidence on such facts. (n)
Objections to any request for admission shall be submitted to the court by the
party requested within the period for and prior to the filing of his sworn EFFECT OF FAILURE TO MAKE A REQUEST FOR ADMISSION
statement as contemplated in the preceding paragraph and his compliance
therewith shall be deferred until such objections are resolved, which GR: NOT BE PERMITTED TO PRESENT EVIDENCE ON SUCH
resolution shall be made as early as practicable. (2a) FACTS.
This is very dangerous. What it means here is that if you did
EFFECT OF FAILURE TO ANSWER REQUEST FOR ADMISSION not request the other party to admit the genuineness of the
What is the effect if the adverse party did not answer your actionable document attached to your pleading, you are
request? barred to prove the genuineness of the document.
GR: IMPLIED ADMISSION ON THE GENUINENESS AN D
MATERIALITY EXPT: OTHERWISE ALLOWED BY THE COURT FOR GOOD
Failure to answer your request means an implied admission CAUSE SHOWN AND TO PREVENT A FAILURE OF JUSTICE
as to the genuineness and materiality of the document. This is discretionary on the court
EXPT: ALREADY DENIED IN THE ANSWER
-Case: Po vs CA
Sc said that when a matter is effectively denied in a
pleading as in a case of an actionable document such as a
promissory note attached in a complaint in an action for
collection of sum of money, and that was already specifically
denied by the defendant in is answer, here is no more need
to ask it again under rule 26. Thus, if the plaintiff will ask

Kwin
MUST BE ADDRESSED TO THE PARTY RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR
-Case: Revoneria vs CA THINGS
A request for admission must be addressed to the party RULE 27
Production or Inspection of Documents or Things
and not to his lawyer. So if the request was sent to the
lawyer of the adverse party and the latter did not answer,
the failure to answer will not matter, as the request is not Section 1.Motion for production or inspection; order. — Upon motion of any party
valid. showing good cause therefor, the court in which an action is pending may
(a) order any party to produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, of any designated
A CLIENT CAN ALWAYS ACT THROUGH HIS LAWYER AND documents, papers, books, accounts, letters, photographs, objects or
THAT HE IS BOUND THROUGHTHE ACTUALTIONS OF THE tangible things, not privileged, which constitute or contain evidence
LATTER material to any matter involved in the action and which are in his
possession, custody or control, or (b) order any party to permit entry upon
-Case: PECFC Financinf Corp vs CA designated land or other property in his possession or control for the
However if the request for admission was properly sent to purpose of inspecting, measuring, surveying, or photographing the property
the party and the latter requested his lawyer to answer it, or any designated relevant object or operation thereon. The order shall
specify the time, place and manner of making the inspection and taking
the answer made by the lawyer is valid under the rule: A copies and photographs, and may prescribe such terms and conditions as are
CLIENT CAN ALWAYS ACT THROUGH HIS LAWYER AND THAT just. (1a)
HE IS BOUND THROUGHTHE ACTUALTIONS OF THE LATTER.
REQUEST FOR PRODUCTION OR INSPECTION OF DOCUMENT
OR THING
A party can always request for the production and inspection
of a document or a thing which is the subject matter of the
claim or case
PRODUCTION OF A DOCUMENT
Example, the document that was attached by the defendant n
his answer is not readable. So you can ask the defendant to
produce the original copy in court so that you can examine
it.
INSPECTION OF A THING
Example, if the subject matter is a real property, a party can
request for an ocular inspection of the land which is the
subject matter of the case. So together with the judge or the
geodetic engineer, they can have an ocular inspection.
REQUISITES
A request for production or inspection of a document or thing
shall be valid if the following are observed:
1. motion for leave of court to produce or inspect a document
or thing
2. the motion must show good cause for its grant
3. notice of the motion must be furnished to all parties
4. the motion must sufficiently describe the document or
things to be produced
5. the document or things to be examined must contain
things that are material to the pending action
6. the document or things to be examined must not be
privileged
7. the document or things to be examined must be in the
possession of the adverse party or at least under his control

Kwin
RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS Section 4.Waiver of privilege. — By requesting and obtaining a report of the
RULE 28 examination so ordered or by taking the deposition of the examiner, the
Physical and Mental Examination of Persons party examined waives any privilege he may have in that action or any
other involving the same controversy, regarding the testimony of every
other person who has examined or may thereafter examine him in respect
Section 1.When examination may be ordered. — In an action in which the mental of the same mental or physical examination. (4)
or physical condition of a party is in controversy, the court in which the
action is pending may in its discretion order him to submit to a physical or
mental examination by a physician. (1) WAIVER OF THE PRIVILEGE
By requesting and obtaining a report of the examination so
WHEN ALLOWED ordered or by taking the deposition of the examiner, the
When can mental and physical examination be allowed by the party examined waives any privilege he may have in that
court? action or any other involving the same controversy,
Only when the mental or physical condition is at issue in regarding the testimony of every other person who has
the case. examined.
Example. you want the marriage to be annulled on the This is actually relevant I the case of GMA. Can the findings of
ground that your husband is impotent, then you shall have a the doctors of GMA be submitted to the court? They say
physical examination. there is a physician-client privilege rule that the doctor
Even in the case of declaration of nullity of marriage on the cannot be compelled to divulge what he learned as to the
ground of psychological incapacity, then you shall have the condition of the patient.
defendant be examined by a psychologist. But this rule will not apply if the it is the court that orders the
examination of the physical or mental examination of a
Section 2. Order for examination. — The order for examination may be made person because it is relevant to a pending action.
only on motion for good cause shown and upon notice to the party to be
examined and to all other parties, and shall specify the time, place, manner,
If there is a court order, the doctor can be compelled to
conditions and scope of the examination and the person or persons by submit his findings on the physical condition of his patient
whom it is to be made. (2) because that is necessary for the determination of the court
on what cause of action he will take.
Section 3.Report of findings. — If requested by the party examined, the party

causing the examination to be made shall deliver to him a copy of a
detailed written report of the examining physician setting out his
findings and conclusions. After such request and delivery, the party
causing the examination to be made shall be entitled upon request to
receive from the party examined a like report of any examination,
previously or thereafter made, of the same mental or physical condition. If
the party examined refuses to deliver such report, the court on motion and
notice may make an order requiring delivery on such terms as are just, and if
a physician fails or refuses to make such a report the court may exclude his
testimony if offered at the trial. (3a)
REPORT OF FINDINGS
(read italics above)
IOW if I request for the physical examination or mental
examination of the defendant, the latter can ask from me a
copy of the report of the doctor. And if the defendant ask
from me, I can also ask him to give me a copy of the
previous examinations conducted by other doctors on him.
So this is the right also of the plaintiff.
EFFECT OF REFUSAL OF PARTY EXAMINED TO DELIVER

REPORT
The court on motion and notice may make an order requiring
delivery on such terms as are just, and if a physician fails or
refuses to make such a report the court may exclude his
testimony if offered at the trial.

Kwin
RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY Section 5.Failure of party to attend or serve answers. — If a party or an officer or
RULE 29 managing agent of a party wilfully fails to appear before the officer who is to
Refusal to Comply with Modes of Discovery take his deposition, after being served with a proper notice, or fails to serve
answers to interrogatories submitted under Rule 25 after proper service of
such interrogatories, the court on motion and notice, may strike out all or
Section 1.Refusal to answer. — If a party or other deponent refuses to answer any part of any pleading of that party, or dismiss the action or proceeding or
any question upon oral examination, the examination may be completed on any part thereof, or enter a judgment by default against that party, and in its
other matters or adjourned as the proponent of the question may prefer. The discretion, order him to pay reasonable expenses incurred by the other,
proponent may thereafter apply to the proper court of the place where the including attorney's fees. (5)
deposition is being taken, for an order to compel an answer. The same
procedure may be availed of when a party or a witness refuses to answer any
interrogatory submitted under Rules 23 or 25.
If the application is granted, the court shall require the refusing party or Section 6.Expenses against the Republic of the Philippines. — Expenses and
deponent to answer the question or interrogatory and if it also finds that the attorney's fees are not to be imposed upon the Republic of the Philippines
refusal to answer was without substantial justification, it may require the under this Rule. (6)
refusing party or deponent or the counsel advising the refusal, or both of
them, to pay the proponent the amount of the reasonable expenses incurred
in obtaining the order, including attorney's fees.
If the application is denied and the court finds that it was filed without EFFECTS OF FAILURE TO COMPLY THE MODES OF DISCOVERY
substantial justification, the court may require the proponent or the counsel 1. contempt of court
advising the filing of the application, or both of them, to pay to the refusing
party or deponent the amount of the reasonable expenses incurred in 2. refusal may be a ground for an order of arrest of a witness
opposing the application, including attorney's fees. (1a) 3. if the refusing party is the plaintiff, the court may dismiss
the case
4. if the refusing party is the defendant, he may be declared
Section 2.Contempt of court. — If a party or other witness refuses to be sworn as in default
or refuses to answer any question after being directed to do so by the court
of the place in which the deposition is being taken, the refusal may be 5. refusal to allow the inspection of a document or thing shall
considered a contempt of that court. (2a) be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order
6. if the party refuses to admit the genuineness of the
Section 3.Other consequences. — If any party or an officer or managing agent of a document and it is proven later on that the document is
party refuses to obey an order made under section 1 of this Rule requiring
him to answer designated questions, or an order under Rule 27 to produce genuine, he may be ordered to pay the reasonable expenses
any document or other thing for inspection, copying, or photographing or to incurred in making such proof including attorney’s fees
permit it to be done, or to permit entry upon land or other property or an
order made under Rule 28 requiring him to submit to a physical or mental
examination, the court may make such orders in regard to the refusal as are
just, and among others the following:
(a) An order that the matters regarding which the questions were asked, or
the character or description of the thing or land, or the contents of the
paper, or the physical or mental condition of the party, or any other
designated facts shall be taken to be established for the purposes of the
action in accordance with the claim of the party obtaining the order;
(b) An order refusing to allow the disobedient party to support or oppose
designated claims or defenses or prohibiting him from introducing in
evidence designated documents or things or items of testimony, or from
introducing evidence of physical or mental condition;
(c) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or proceeding
or any part thereof, or rendering a judgment by default against the
disobedient party; and
(d) In lieu of any of the foregoing orders or in addition thereto, an order
directing the arrest of any party or agent of a party for disobeying any of
such orders except an order to submit to a physical or mental examination.
(3a)
Section 4.Expenses on refusal to admit. — If a party after being served with a

request under Rule 26 to admit the genuineness of any document or the
truth of any matter of fact serves a sworn denial thereof and if the party
requesting the admissions thereafter proves the genuineness of such
document or the truth of any such matter of fact, he may apply to the court
for an order requiring the other party to pay him the reasonable expenses
incurred in making such proof, including attorney's fees. Unless the court
finds that there were good reasons for the denial or that admissions sought
were of no substantial importance, such order shall be issued. (4a)

Kwin
December 2, 2011 LIMIT OF POSTPONEMENT
The rule is that the court may adjourn the trial of the case
RULE 30 TRIAL from day to day. But if it has to be postponed, the
RULE 30 postponement should not be more than 1 month. And in no
Trial
case will it exceed 3 months without the permission of the
court administrator of SC.
Section 1.Notice of Trial. — Upon entry of a case in the trial calendar, the clerk
This rule has not been actually observed. In actual practice,
shall notify the parties of the date of its trial in such manner as shall ensure some judges would adjourn the trial to about 2 to 3 months.
his receipt of that notice at least five (5) days before such date. (2a, R22)
When shall there be trial? Section 3.Requisites of motion to postpone trial for absence of evidence. — A motion to
That will take place right after the pretrial. postpone a trial on the ground of absence of evidence can be granted only
upon affidavit showing the materiality or relevancy of such evidence, and
that due diligence has been used to procure it. But if the adverse party
PRE TRIAL ORDER admits the facts to be given in evidence, even if he objects or reserves the
After the pretrial is conducted by the judge, the judge will right to object to their admissibility, the trial shall not be postponed. (4a,
R22; Bar Matter No. 803, 21 July 1998)
issue a pretrial order.
The pretrial order determines the conduct of the subsequent
GROUNDS FOR POSTPONEMENT OF THE CASE
proceeding. The issues enumerated in the pre trial order
The trial of the case may be postponed for some valid
shall guide the conduct of the hearing of the case.
ground.
2 grounds for the postponement of the case:
TRIAL
1. Absence of evidence
Trial means the presentation of the evidence, it refers to the
2. Illness of the parties or their counsel
part of the proceedings where both parties will be required
to present evidence.
1. ABSENCE OF EVIDENCE
This means that the evidence to be presented for the
Rule 30 of the Rules of Court refers to trial.
scheduled trial is not yet available.
Example. Your witness to be presented in the trial has not yet
WHEN SHALL THERE BE TRIAL
arrived from abroad. Or you are supposed to present
Upon entry of the case in the TRIAL CALENDAR, the trial shall
documentary evidence but these have not yet arrived.
commence. This will take place right after the pre trial.
-REQUISITES
TRIAL VS HEARING
If the ground is absence of evidence, you must
Actually there is no difference because it both refers to the
a. attach to your motion an affidavit of materiality or
presentation of evidence of the plaintiff and the defendant.
relevancy of such evidence
b. show that you have exercised due diligence in procuring
Section 2.Adjournments and postponements. — A court may adjourn a trial from
this evidence and that despite your effort to procure these
day to day, and to any stated time, as the expeditious and convenient evidence, it proved futile and of no avail.
transaction of business may require, but shall have no power to adjourn a
trial for a longer period than one month for each adjournment nor more than
three months in all, except when authorized in writing by the Court
-WHEN MAY BE DENIED BY THE COURT
Administrator, Supreme Court. (3a, R22) However, the motion for postponement based on absence
of evidence may be denied by the court if the other party
ADJOURNMENT AND POSTPONEMENTS will accept the existence of the evidence without necessarily
The trial of the case shall continue from the moment it would waiving as to its admissibility.
start and shall adjourned from day to day and to any stated What it means is that if the party will ask for postponement
time as expeditious and convenient. due to absence of evidence but the other party will admit to
The court shall continue until it is terminated. But we all the existence of the particular document, it does not
know that the court cannot finish a trial in one day. So the necessarily follow that he admits to the admissibility of the
hearing of the case can be postponed from day to day. document.
Like when the trial is in the morning, they will have to IOW he reserves his right to object to its admissibility at the
adjourn to have lunch. That is one instance when trial of the time it is offered to the party
case will have to be adjourned.

Kwin
Section 4.Requisites of motion to postpone trial for illness of party or counsel. — A Section 5.Order of trial. — Subject to the provisions of section 2 of Rule 31, and
motion to postpone a trial on the ground of illness of a party or counsel may unless the court for special reasons otherwise directs, the trial shall be
be granted if it appears upon affidavit or sworn certification that the limited to the issues stated in the pre-trial order and shall proceed as
presence of such party or counsel at the trial is indispensable and that the follows:
character of his illness is such as to render his non-attendance excusable. (a) The plaintiff shall adduce evidence in support of his complaint;
(5a, R22) (b) The defendant shall then adduce evidence in support of his defense,
counterclaim, cross-claim and third-party complaints;
(c) The third-party defendant if any, shall adduce evidence of his defense,
2. ILLNESS OF THE PARTIES OR THEIR COUNSEL counterclaim, cross-claim and fourth-party complaint;
The second ground for postponement of a trial is illness of (d) The fourth-party, and so forth, if any, shall adduce evidence of the
a party or his counsel. material facts pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has been
pleaded, shall adduce evidence in support of their defense, in the order to be
-REQUISITES prescribed by the court;
If this is the ground, there must also be (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
a. an affidavit showing the nature of the illness. adduce evidence upon their original case; and
b. that the illness must be something that is serious that will (g) Upon admission of the evidence, the case shall be deemed submitted for
incapacitate the party from appearing in court decision, unless the court directs the parties to argue or to submit their
respective memoranda or any further pleadings.
c. that the presence of the party is indispensible during the If several defendants or third-party defendants, and so forth, having separate
trial of the case defenses appear by different counsel, the court shall determine the relative
-Example. Plaintiff has presented his evidence. It is the order of presentation of their evidence. (1a, R30)
defendant’s turn to present evidence. Counsel for the
plaintiff asked for the postponement on the ground that ORDER OF TRIAL
he cannot attend. Will it be granted by the court? No. In a civil action, the order of trial is as follows.
Plaintiff has already presented the evidence. His
presence is not anymore required. His presence is not The first who will present evidence is the plaintiff. After he is
indispensible. Therefore the illness that would through, he will formally offer his documentary exhibits or
incapacitate him to attend the hearing is not a valid the exhibits that he marked during the trial of the case. After
ground for postponement. the court accepted the exhibits offered, it is the turn of the
d. normally, must attach a medical certificate defendant to present evidence. Then the third party
-a certification from the doctor as to the nature of the defendant and the fourth party defendant, and so on. Also
illness of the party the cross defendant will present evidence.
-however, not every illness can be supported by a
medical certificate. In one case, SC said such. There are If there is a counter claim, the defendant during the
instances where a party cannot present a medical presentation of evidence in chief will also be allowed to
certificate. For as long as the court is convinced that the present evidence for his counterclaim. And the plaintiff will
party or witness is really ill, the court shall be lenient in be allowed to present his evidence in answer to his
granting this ground for postponement of the case. counterclaim.
After the plaintiff and defendant finished presenting his

evidence, the plaintiff is allowed to present rebuttal
evidence to rebut the evidence presented by the defendant.
After the rebuttal evidence, the defendant may also present

surrebuttal evidence.

Kwin
GR: PLAINTIFF PRESENT FIRST THAN DEFENDANT Section 7.Statement of judge. — During the hearing or trial of a case any
statement made by the judge with reference to the case, or to any of the
The rule provides that whoever files the case should be the parties, witnesses or counsel, shall be made of record in the stenographic
one to present the evidence first. IOW it should be the notes. (3a, R30)
plaintiff who would present the evidence first before the
defendant. RECODING OF COMMENT OF JUDGE
Another innovation introduced in rule 30 is that every time
EXPT: WHEN DEFENDANT PRESENTS EVIDENCE FIRST THAN the judge will make a comment before the trial, the
PLAINTIFF comment must be made before the stenographic notes. He
There are instances where the plaintiff will not anymore file judge can no longer say “off the records”.
evidence Any statement made by the judge with reference to the case,
1. REVERSE TRIAL: SELF DEFENSE or to any of the parties, witnesses or counsel, shall be made
In criminal cases, we have what we call, REVERSE TRIAL. of record in the stenographic notes.
If in a criminal case for murder for example, and the This is not found in the old rules. In the past there were
defense of the accused is self defense, then the court may practices of some judges to make unnecessary comments
no longer require the plaintiff to present the evidence. which would tantamount to prejudgment. This is no longer
Because when your defense is self defense, it means you allowed. So that the losing party may site the statement to
have already admitted that you killed the complainant. show that the judge is biased.
The burden of proof is shifted on you for you to prove the
self defense. Section 8.Suspension of actions. — The suspension of actions shall be governed
by the provisions of the Civil Code. (n)
Does it apply to civil cases? YES
-Case: Yu vs Magtayo
SC applied the rule on reverse trial. SUSPENSION OF ACTIONS – MANIFESTATION TO SETTLE THE
CASE AMICABLY
Example. A civil case for collection of sum of money.
Can the judge suspend the trial of the case?
I claimed that you borrowed money form me. You did not
Under the NCC, one of the valid reason for the judge to
pay me. You answered, yes I borrowed money but I have
already paid you. You have already admitted the material suspend the tail of the case is when the parties to the case
allegation, that you have borrowed money. So you need not manifest the desire to settle amicably.
present evidence anymore. When there is a manifestation of the parties that they are
going to settle the case amicably, the court should give them
Section 6.Agreed statement of facts. — The parties to any action may agree, in all the opportunity to settle the matter amicably.
writing, upon the facts involved in the litigation, and submit the case for So the court can suspend the trial even up to more than 3
judgment on the facts agreed upon, without the introduction of evidence. months if only to give the parties an opportunity to settle it
If the parties agree only on some of the facts in issue, the trial shall be held as
to the disputed facts in such order as the court shall prescribe. (2a, R30) amicably.
AGREEMENT TO DISPENSE WITH THE TRIAL

Parties in a civil action may forego with the trial. It’s not that
trial is indispensible before the court will decide. There are
instances where the court may no longer conduct trial. One
of that is if both parties have agreed to dispense with the
trial. This may happen during the pretrial.
You remember that one of the purposes of pre trial is the
stipulation of facts. In the stipulation of facts, the parties will
agree on the facts that they will both agree on the facts that
they will both agree.
If all the material allegations of facts as alleged by the parties
are admitted, there is nothing more left except legal issue.
There are no more factual issues. The court can right away
decide on the basis of the facts admitted by the parties
during the stipulation of facts.
The court should conduct trial only if there are facts that are
not agreed upon by the parties. There are disputed facts.
If there is no dispute as to the facts, then there is no more
need for trial.

Kwin
Section 9.Judge to receive evidence; delegation to clerk of court. — The judge of the There were contending decisions of the SC on the matter
court where the case is pending shall personally receive the evidence to be
-Case: Laloan vs Malpaya
adduced by the parties. However, in default or ex parte hearings, and in any
case where the parties agree in writing, the court may delegate the reception SC said that a clerk of court can receive evidence for and on
of evidence to its clerk of court who is a member of the bar. The clerk of behalf of the judge during ex parte presentation of evidence
court shall have no power to rule on objections to any question or to the
admission of exhibits, which objections shall be resolved by the court upon
as a result of default.
submission of his report and the transcripts within ten (10) days from
termination of the hearing. (n) But this ruling was later on abandoned in the case of :
-Case: LanTan ho Vs Lamuliti
RECEIPT OF EVIDENCE SC said that the judge of the court cannot delegate the
GR: JUDGE reception of evidence to the clerk of court.
The rule is that in the trial, it should be the judge who will
personally accept the evidence of the parties Later on, this was abandoned in the case of:
EXPT: DELEGATED TO CLERK OF COURT -Case: National Housing Authority vs CA
1. DECLARED IN DEFAULT – EX PARTE HEARING SC said that a clerk of court can receive evidence provided
The judge may delegate the reception of evidence to his he is a lawyer.
clerk of court but only in cases when there is default.
Example, the defendant was declared in default. The judge They incorporated it in rule 30 that a judge can delegate
may authorize the clerk of court to receive the evidence of reception of evidence provided that the clerk of court is a
the plaintiff ex parte. lawyer and there is a an ex parte presentation of evidence as
That is allowed only in the ex parte presentation of a result of default.
evidence of the plaintiff as a result of the declaration of
default.
2. REQUESTED BY BOTH PARTIES RULE 31 CONSOLIDATION OR SEVERANCE
This is also allowed when both parties made a request to
the judge that they will let the clerk of court accept the RULE 31
Consolidation or Severance
evidence. Section 1.Consolidation. — When actions involving a common question of law
or fact are pending before the court, it may order a joint hearing or trial of
RULES ON RECEIPT OF EVIENCE BY CLERK OF COURT any or all the matters in issue in the actions; it may order all the actions
consolidated, and it may make such orders concerning proceedings therein
1. grounds: as may tend to avoid unnecessary costs or delay. (1)
a. ex parte hearing upon default of a party Section 2.Separate trials. — The court, in furtherance of convenience or to
b. requested by parties avoid prejudice, may order a separate trial of any claim, cross-claim,
counterclaim, or third-party complaint, or of any separate issue or of any
2. clerk of court must be a lawyer number of claims, cross-claims, counterclaims, third-party complaints or
3. clerk of court cannot rule on any objections raised by the issues. (2a)
party.
4. clerk of court must immediately render a report to the
judge on the proceedings that took place before him
THE CLERK OF COURT MUST BE A LAWYER

Not all clerks of court are lawyers. Only clerks of court of RTC
are lawyers. But in MTC, the clerks of courts are not lawyers.
a clerk of court is actually the assistant of the judge. Next to
judge in ranking. He is supposed to be the manager of the
court.
IOW Clerks of court of MTC cannot receive evidence for and
on behalf of the judge even if it is an ex parte presentation
of evidence as a result of default.

Kwin
RULE 32 TRIAL BY COMMISSIONER Section 3.Order of reference; powers of the commissioner. — When a reference is
RULE 32 made, the clerk shall forthwith furnish the commissioner with a copy of the
Trial by Commissioner order of reference. The order may specify or limit the powers of the
commissioner, and may direct him to report only upon particular issues, or
TRIAL BY COMMISSIONER to do or perform particular acts, or to receive and report evidence only and
When is there a trial by commissioner? may fix the date for beginning and closing the hearings and for the filing of
This kind of trial will be resorted to only when there are his report. Subject to other specifications and limitations stated in the order,
the commissioner has and shall exercise the power to regulate the
issues presented before the court which is not within the proceedings in every hearing before him and to do all acts and take all
competence of the court to determine or decide. measures necessary or proper for the efficient performance of his duties
If the controversy is something that needs the expertise of under the order. He may issue subpoenas and subpoenas ducestecum, swear
witnesses, and unless otherwise provided in the order of reference, he may
another professional then the parties may ask that it be rule upon the admissibility of evidence. The trial or hearing before him shall
referred to an expert in that matter. proceed in all respects as it would if held before the court. (3a, R33)
Example. 2 partners were quarrelling over the profits of the COMMISSIONER

business. So it requires an accounting. The judge may refer it Who is a commissioner?
to an accountant. The court may appoint an accountant as a A person who is an expert in that particular field or matter
commissioner. under controversy.
Example. Land dispute. They were quarreling over the Here, the judge needs the assistance or expertise of the
boundary of the land. He claims the defendant encroached person for him to resolve the factual issues.
his land. There is a need for a geodetic engineer.
NORMALLY ON THE DETERMINATION OF FACTUAL ISSUES
Section 1.Reference by consent. — By written consent of both parties, the court Trial by commissioner normally refers to determination of
may order any or all of the issues in a case to be referred to a commissioner factual issues. Legal issues are matters reserved only for the
to be agreed upon by the parties or to be appointed by the court. As used in
these Rules, the word "commissioner" includes a referee, an auditor and an judge to decide.
examiner. (1a, R33)
ORDER OF REFERENCE
Section 2.Reference ordered on motion. — When the parties do not consent, the A commissioner is a representative of the judge. Some would
court may, upon the application of either or of its own motion, direct a
reference to a commissioner in the following cases:
call him an alter ego of the judge.
(a) When the trial of an issue of fact requires the examination of a long When the judge decides to refer the matter to a
account on either side, in which case the commissioner may be directed to commissioner upon request of either party or both parties
hear and report upon the whole issue or any specific question involved
therein;
or at his own volition, then the judge should issue an order
(b) When the taking of an account is necessary for the information of the appointing the commissioner. That order is called an ORDER
court before judgment, or for carrying a judgment or order into effect. OF REFERENCE.
(c) When a question of fact, other than upon the pleadings, arises upon
motion or otherwise, in any stage of a case, or for carrying a judgment or When the court issues an order of reference, the clerk of
order into effect. (2a, R33) court must immediately notify the person appointed as
commissioner in the order of reference.
WAYS TO APPOINT COMMISSIONER And that person appointed must immediately manifests to
When does trial by commissioner occur? the court whether he accepts of not the appointment.
1. by joint agreement of the parties
2. upon request of the party COMPENSATION OF A COMMISSIONER
3. by court motu proprio A commissioner is entitled to compensation.
Who will pay the commissioner?
BY JOINT AGREEMENT OF THE PARTIES Both parties will pay or if not, the losing party.
If both parties agree to refer the matter to a commissioner, In fact, in cases like this, the court will appoint not only one
then they will file a joint motion to the court. but 2 or 3 commissioners. It can be a panel of
commissioners.
UPON REQUEST OF ONE PARTY
What happens if they cannot agree?
Upon request of one party against the will of another party
BY COURT MOTU PROPRIO

In fact, trial by commissioner can be had even if both
parties do not want to. The court may may motu proprio
refer the matter to a commissioner.

Kwin
POWERS OF COMMISSIONER Section 5.Proceedings before commissioner. — Upon receipt of the order of
reference and unless otherwise provided therein, the commissioner shall
A commissioner is very powerful because he is an alter ego forthwith set a time and place for the first meeting of the parties or their
of the judge. counsel to be held within ten (10) days after the date of the order of
reference and shall notify the parties or their counsel. (5a, R33)
-CONDUCT HEARING MANDATORY HEARING
A commissioner may conduct a hearing. He will hear both A commissioner cannot make a report to the judge without
parties. He can even issue subpoena. He will administer the conducting a hearing. Hearing is a mandatory requirement.
oath of the witness. Because according to SC, it is part of the requirement of due
process.
-MAY RULE ON OBJECTIONS It is therefore wrong for the commissioner to submit a report
A commissioner appointed by the court is even more to the judge without conducting a hearing. And it is more
powerful than the clerk of court because he can rule on the wrong for the judge to approve that report.
objections. When there is trial by commissioner, the hearing to be
conducted is indispensible.
-DECIDE THE CASE
Section 8.Commissioner shall avoid delays. — It is the duty of the commissioner
Then the commissioner can decide. to proceed with all reasonable diligence. Either party, on notice to the
parties and commissioner, may apply to the court for an order requiring the
Section 6.Failure of parties to appear before commissioner. — If a party fails to commissioner to expedite the proceedings and to make his report. (8a, R33)
appear at the time and place appointed, the commissioner may proceed ex
parte or, in his discretion, adjourn the proceedings to a future day, giving Section 9.Report of commissioner. — Upon the completion of the trial or hearing
notice to the absent party or his counsel of the adjournment. (6a, R33) or proceeding before the commissioner, he shall file with the court his report
in writing upon the matters submitted to him by the order of reference.
When his powers are not specified or limited, he shall set forth his findings
Section 7.Refusal of witness. — The refusal of a witness to obey a subpoena
of fact and conclusions of law in his report. He shall attach thereto all
issued by the commissioner or to give evidence before him, shall be deemed a
exhibits, affidavits, depositions, papers and the transcript, if any, of the
contempt of the court which appointed the commissioner. (7a R33)
testimonial evidence presented before him. (9a, R33)
MAY NOT SITE PERSON IN CONTEMPT JUDGE IS NOT BOUND BY THE REPORT OF COMMISSIONER
Earlier I said that the commissioner may issue a subpoena What happens after conducting a hearing? The commissioner
duces tecum or ad testificandum of the witness. submits a report to the judge.
What if the witness will not appear? Can the commissioner Is the judge bound by the report of the commissioner?
site that person in contempt? NO. remember that the commissioner is appointed by the
NO. He will report to the judge who appointed him as a judge to help him determine the facts of the case. The judge
commissioner. It will be the judge who will site the person in is not bound by the report of the commissioner. It is still
contempt of court. within the discretion of the court.
Although he is an alter ego of the judge, has no power to The court may refer it back to the commissioner for further
site the person in contempt of court. hearing or totally disregard it if he finds that the findings of
the commissioner is not supported by evidence.
Section 4.Oath of commissioner. — Before entering upon his duties the
commissioner shall be sworn to a faithful and honest performance thereof.
(14, R33) Section 10.Notice to parties of the filing of report. — Upon the filing of the report,
the parties shall be notified by the clerk, and they shall be allowed ten (10)
OATH OF COMMISSIONER days within which to signify grounds of objections to the findings of the
report, if they so desire. Objections to the report based upon grounds which
Before the commissioner will assume his duties as a were available to the parties during the proceedings before the
commissioner, he must take an oath before the judge. commissioner, other than objections to the findings and conclusions therein,
set forth, shall not be considered by the court unless they were made before
the commissioner. (10, R33)
Section 11.Hearing upon report. — Upon the expiration of the period of ten (10)
days referred to in the preceding section, the report shall be set for hearing,
after which the court shall issue an order adopting, modifying, or rejecting
the report in whole or in part, or recommitting it with instructions, or
requiring the parties to present further evidence before the commissioner or
the court. (11a, R33)
Section 12.Stipulations as to findings. — When the parties stipulate that a

commissioner's findings of fact shall be final, only questions of law shall
thereafter be considered. (12a, R33)
Section 13.Compensation of commissioner. — 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, or apportioned,
as justice requires. (13, R33)

Kwin
RULE 33 DEMURER TO EVIDENCE DEMURER TO EVIDENCE IN CRIMINAL CASE VS DEMURER OF
RULE 33 EVIDENCE IN CIVIL CASE
Demurrer to Evidence
Section 1.Demurrer to evidence. — After the plaintiff has completed the
CRIM: You are allowed to file after the prosecution rested its
presentation of his evidence, the defendant may move for dismissal on the case but you have to ask for permission of court before
ground that upon the facts and the law the plaintiff has shown no right to you file.
relief. If his motion is denied he shall have the right to present evidence. If
the motion is granted but on appeal the order of dismissal is reversed he
If you did not ask permission fro the court and the
shall be deemed to have waived the right to present evidence. (1a, R35) motion is denied, then you cannot anymore present
evidence.
DEMURRER TO EVIDENCE But if you ask permission from the court but it was
Demurrer to evidence is a form of a motion to dismiss. It is denied, then you are allowed to present evidence.
filed after plaintiff has finished presenting evidence in chief
So in criminal cases therefore, after the presentation of the
DEMURRER TO EVIDENCE VS MOTION TO DISMISS prosecution’s evidence, you believe that the prosecution is
The basic distinction is the time when you file it very weak and did not prove his case, you can file a motion
MTD: file it after you received complaint but before you file for demurrer to evidence. But before you do it, you must file
answer. You file it within 15 day reglementary period for a MOTION FOR LEAVE OF COURT TO FILE A DEMURRER
to answer TO EVIDENCE.
DTE: there is a complaint filed; you filed your answer, there That’s not actually mandatory. You may file a motion without
is already pretrial and trial; it is only after the plaintiff leave of court but that is very dangerous. Because if you file
has finished presenting his evidence that you can file the demurrer to evidence right away without leave of court
demurer to evidence on the ground that the plaintiff and the demurrer of evidence is denied, you cannot present
failed to establish cause of action your evidence anymore
But if you file a motion for leave of court, you are allowed by
GROUND the court to file your demurrer to evidence but after you
It is a motion to dismiss on the ground of insufficiency of filed it, it was denied by the court, you may still present
evidence; that the plaintiff failed to establish his cause of evidence.
action.
The basis of the demurrer to evidence is that the evidence REMEDY OF PARTY IF DEMURRER TO EVIDENCE IS DENIED
presented by the plaintiff is insufficient to prove his case. OR GRANTED
-DENIED: PRESENT EVIDENCE
APPLICABLE TO CRIMINAL CASE When you file a demurrer to evidence in civil cases and it is
There is also a demurer to evidence in criminal cases. denied, then you present your evidence.
-GRANTED: PLAINTIFF APPEALS TO CA
EFFECT OF DEMURRER TO EVIDENCE IN CIVIL CASES If it is granted, then it is the plaintiff who will appeal the case
-IF GRANTED: CASE IS DISMISSED; PLAINTIFF WILL APPEAL TO to the higher court.
CA If reversed, then you lose your right to present evidence.
In civil cases, filing a demurer to evidence is very risky
because when you file it and it is approved by the court, the ORDER DENYING MOTION FOR DEMURER IS NON
case is dismissed. The aggrieved party is the plaintiff. APPEALABLE
-IF CA REVERSES: ONLY PLAINTIFF’S EVIDENCE IS BE What about if your motion for demurer to evidence is denied
CONSIDERED by the court, can you appeal the order of the court denying
If the plaintiff will appeal the dismissal to the CA. And the your motion?
CA finds the dismissal wrong, the defendant who won in his No. because that is interlocutory order
motion to demurer to evidence will no longer be allowed to
present his evidence. CERTIORARI – GRAVE ABUSE OF DICRETION
The CA may now decide the case only on the basis of the However you can file for certiorari if you can prove that the
evidence of the plaintiff. Ca will no longer return it to the denial to demurrer to evidence is attended by grave abuse
lower court. It may decide right away on the basis of the of discretion on the part of the judge.
evidence of the plaintiff.
Because the reversal of the TC’s decision would mean a
waiver of the right of the defendant to present his evidence.
-IF DENIED: DEFENDANT PRESENTS HIS EVIDENCE

If the demurer to evidence is denied, you present your
evidence.

Kwin
RULE 34 JUDGMENT ON PLEADINGS PROCEDURE
RULE 34 How is a motion for judgment on the pleading done?
Judgment on the Pleadings
Section 1.Judgment on the pleadings. — Where an answer fails to tender an issue,
1. FILING MOTION
or otherwise admits the material allegations of the adverse party's pleading, You file it by filing a motion in court. And the motion can
the court may; on motion of that party, direct judgment on such pleading. only be filed by the plaintiff.
However, in actions for declaration of nullity or annulment of marriage or
for legal separation, the material facts alleged in the complaint shall always
2. MOTU PROPRIO
be proved. (1a, R19) Or it can be done by the courts own volition. IOW motu
proprio.
JUDGMENT ON THE PLEADINGS VS SUMMARY JUDGMENT The court can motu proprio render judgment on the
Some are confused between these two because they both pleading.
involve a common ground that the answer failed to tender Let’s go back to the discussion of the pre trial. What are the
an issue purposes of the pre trial? One of the purposes is to
determine the propriety, the court will determine whether
JUDGMENT ON THE PLEADING there is a need to render a judgment on the pleading or a
This is a remedy available to the plaintiff. And the plaintiff can summary judgment.
avail only of this remedy only when the answer of the IOW if during the pre trial the court itself finds that the
defendant fails to tender an issue or OW admits the material answer of the defendant did not tender any issue and
allegations in the complaint. instead admits the material averments of the complaint, the
So if I am the plaintiff and I filed a case against you and you court can right away render judgment on the pleading
filed your answer. When I read your answer, I found out that without the plaintiff asking for it.
it did not tender an issue. In fact, in your answer, it is clear
that you have practically admitted all the material -EXCEPTIONS:
averments or allegations in my complaint, which serves as Judgment on the pleadings however is not proper on some
the basis of my cause of action. cases:
What I will do is to file a motion for judgment on the a. Declaration on nullity of marriage
pleadings. b. Annulment of marriage
c. Legal separation
EFFECT OF FILING OF MOTION FOR JUDGMENT ON THE
PLEADINGS
So when I file for motion for judgment on the pleadings, what
is the effect?
GR: DEEMED ADMIT MATERIAL ALLEGATIONS IN THE
ANSWER
The effect is that I am deemed to have admitted the
material allegations of the answer. I am deemed to have
admitted all the relevant material allegations or facts found
in the defendant’s answer.
EXPT: NOT DEEMED ADMIT:
1. IRRELEVANT ALLEGATIONS
However, there are exceptions to that rule. Plaintiff is not
deemed to have admitted irrelevant allegations in the
answer.
So judgment on the pleading will happen only in two
instances.
2. ALLEGATIONS OF DAMAGES
And also, defendant is not deemed to have admitted the
allegations of damages in the complaint.

Kwin
RULE 35 SUMMARY JUDGMENT SUMMARY JUDGMENT BY THE DEFENDANT
RULE 35 Summary judgment may also be availed of by the defendant.
Summary Judgments
If I know that your allegations in the complaint are not true,
JUDGMENT ON THE PLEADINGS VS SUMMARY JUDGMENT
then I may also file a summary judgment against the plaintiff
JOP: The answer does not put up a defense or it OW admits
and challenge him to answer the motion for summary
the material allegation
judgment which must be supported by an affidavit
SJ: There is a defense set up but the defense is not
deposition or admission.
genuine. Or it is a fictitious defense
If you are not willing, then that would mean that your
allegations are fictitious.
JOP: The court will render judgment on the basis only on
the pleading
NORMALLY FOR RECOVERY OF THING
SJ: The court will render judgment not only on the basis of
Normally, summary judgment is availed of in any action to
the pleadings but also on the basis of the affidavits,
recover a thing. Like collection of sum of money.
depositions and admissions attached to the motion for
summary judgment
PARTIAL SUMMARY JUDGMENT
Can the court grant partial summary judgment?
JOP: Is a remedy available only to the plaintiff
YES.
SJ: Is a remedy available to both plaintiff and defendant
Section 3.Motion and proceedings thereon. — The motion shall be served at least
ten (10) days before the time specified for the hearing. The adverse party
Section 1.Summary judgment for claimant. — A party seeking to recover upon a may serve opposing affidavits, depositions, or admissions at least three (3)
claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at days before the hearing. After the hearing, the judgment sought shall be
any time after the pleading in answer thereto has been served, move with rendered forthwith if the pleadings, supporting affidavits, depositions, and
supporting affidavits, depositions or admissions for a summary judgment in admissions on file, show that, except as to the amount of damages, there is
his favor upon all or any part thereof. (1a, R34) no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. (3a, R34)
Section 2.Summary judgment for defending party. — A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory relief is sought may, Section 4.Case not fully adjudicated on motion. — If on motion under this Rule,
at any time, move with supporting affidavits, depositions or admissions for a judgment is not rendered upon the whole case or for all the reliefs sought
summary judgment in his favor as to all or any part thereof. (2a, R34) and a trial is necessary, the court at the hearing of the motion, by examining
the pleadings and the evidence before it and by interrogating counsel shall
ascertain what material facts exist without substantial controversy and
SUMMARY JUDGMENT – WHO MAY FILE; GROUND what are actually and in good faith controverted. It shall thereupon make an
Who can file summary judgment? What is the ground? order specifying the facts that appear without substantial controversy,
1. By the plaintiff -at anytime after answer has been including the extent to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the action as are just.
served The facts so specified shall be deemed established, and the trial shall be
2. By the defendant - conducted on the controverted facts accordingly. (4a, R34)
Section 5.Form of affidavits and supporting papers. — Supporting and opposing

SUMMARY JUDGMENT BY THE PLAINTIFF affidavits shall be made on personal knowledge, shall set forth such facts as
If the defendant files the answer just to delay the proceeding, would be admissible in evidence, and shall show affirmatively that the
and the issue is not genuine; it is fictitious, the plaintiff may affiant is competent to testify to the matters stated therein. Certified true
copies of all papers or parts thereof referred to in the affidavit shall be
file for summary judgment attached thereto or served therewith. (5a, R34)
Example. I file a collection case against you. Your answer is
that you already paid me. I will file a motion for summary MOTION MUST BE ACCOMPANIED BY AFFIDAVITS,
judgment to be supported by affidavits, depositions and DEPOSITIONS AND ADMISSIONS
admission for you to prove that you have really paid me. In summary judgment, it is not enough that you file for a
motion for summary judgment. Your motion for summary
ANSWER BY DEFENDANT IS BY AFFIDAVIT judgment must be accompanied by affidavits, depositions
Under the rules, if a summary judgment is filed, you have to and admissions.
answer it also by affidavit, deposition or admissions. OW it Section 6.Affidavits in bad faith. — Should it appear to its satisfaction at any
would mean that your answer is not genuine. These should time that any of the affidavits presented pursuant to this Rule are presented
in bad faith, or solely for the purpose of delay, the court shall forthwith
be notarized by a lawyer, under the pain of perjury. order the offending party or counsel to pay to the other party the amount of
the reasonable expenses which the filing of the affidavits caused him to
incur including attorney's fees, it may, after hearing further adjudge the
offending party or counsel guilty of contempt. (6a, R34)

Kwin
RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF Then the court will say, “wherefore, premises considered, the
RULE 36 court finds…” This is the finding of the court, called fallo or
Judgments, Final Orders and Entry Thereof
Section 1.Rendition of judgments and final orders. — A judgment or final order
judgment.
determining the merits of the case shall be in writing personally and directly What is entered is not the entire decision but only the fallo or
prepared by the judge, stating clearly and distinctly the facts and the law on the judgment of the court.
which it is based, signed by him, and filed with the clerk of the court. (1a)
Judgment refers to the dispositive portion. It is just part of
the bigger document which is the decision.
RENDITION OF JUDGMENTS AND FINAL ORDERS
After the court has conducted the trial of the case, the
TYPES OF JUDGMENT
plaintiff and defendant have finished presenting their
There are many types of judgment
evidence, the court will now have to decide the case.
1. judgment upon compromise
2. judgment upon confession
ORDER SUBMITTING THE CASE FOR DECISION
3. several judgment
After all the evidences are submitted to the court, the court
4. judgment for a specific act
will issue an order declaring that the case be submitted for
decision.
JUDGMENT UPON COMPROMISE
And there is a certain period for the court to decide the case.
A judgment upon compromise is different from other types of
judgment in a sense that it is immediately executory.
RULE 36 JUDGMENTS, FINAL ORDERS AND ENTRY THEREOF
-NOT APPEALABLE
Once the court decides the case, we go to rule 36.
Judgment upon compromise is not appealable.
This is the rule pertaining to judgment, final orders and the
Because we have to TN that a judgment upon compromise
entry thereof.
is a product of the mutual agreement by the parties. So once
it is signed and approved by the court, it shall take effect
FINAL JUDGMENT, HOW DONE
immediately.
How is a final judgment done?
-REMEDY: MOTION TO SET ASIDE THE COMPROMISE
There are certain conditions for a valid judgment to be
AGREEMENT
considered valid.
If you are not contented by the compromise agreement,
1. In writing
you may have it set aside by the court.
2. Directly and personally prepared by the judge
You cannot appeal a judgment upon compromise without
3. Signed by the judge
first filing a motion to set aside the compromise agreement.
4. State clearly and distinctly the facts and the law on which
IOW you will have to ask the court to nullify the judgment
it is based
upon compromise agreement because the compromise
5. Filed with the clerk of court
agreement was executed or signed by you because of fraud.
-Filing is also important because it is the filing of the
So to be entitled to appeal, a party must not only move to
judgment of the clerk of court that determines when the
set aside the judgment but also to move to annul the
entry of judgment will come in or take place.
compromise agreement itself.
DECISION VS JUDGMENT
RENDITION OF JUDGMENT
When is a judgment considered rendered?
What is a decision? Is it the same as a judgment?
The rendition of judgment is reckonend from the moment
The DECISION refers to the entire document that contains
the judge signed the decision and filed it in court.
the factual and legal findings of the case; the whole
It is not upon the pronouncement in open court. It consists
document where the court makes its own findings and
of the delivery of the written judgment already signed by
conclusions.
the judge to the clerk of court.
-IF MADE THROUGH REGISTERED MAIL: UPON RECEIOT OF
The dispositive portion of the decision is called FALLO, or
CLERK OF COURT
JUDGMENT.
In fact, if the judge sent the decision by registered mail, it is
not the date of the sending that makes the judgment
In a decision, the court will start with the nature of the case.
rendered but upon the receipt of the clerk of court that is
Then it will discuss the evidence of the plaintiff and
considered the rendition of judgment.
defendant, and summary of their testimonies. The court will
boil down to the issues. Then the court will make its own
findings. The court will now come to the law applicable.

Kwin
IF JUDGMENT IS AMBIGUOUS: CLARIFICATORY JUDGMENT DATE OF THE FINALITY OF JUDGMENT IS DEEMED TO BE THE
If the judgment is ambiguous, you can file a clarificatory DATE OF ENTRY OF JUDGMENT
judgment. Under the new rules, the date of the finality of judgment is
deemed to be the date of entry of judgment.
DISCUSSION OF FINDINGS OF FACTS AND CONCLUSIONS OF
LAW Under the old rules the entry of judgment refers to the
The court requires that a judge in making the decision must mechanical act of writing down the judgment in the book of
explain how it arrived at that decision. It must have a entry of judgment by the clerk of court.
discussion on the findings of facts and conclusion of law.
Because one of the element of the valid judgment is that the Example. A decision was rendered by the court. The decision
judgment or the decision must clearly and distinctly state was received today, and he has 15 days to appeal. Supposed
the facts and the law upon which it is based. he did not appeal within 15 days, on the 16th day, the
judgment becomes final and executory.
-EXCEPTION: MINUTE RESOLUTION OF SC But that it’s not yet considered the entry of judgment.
The only exception to that rule is the minute resolution of Because the entry of judgment refers to the mechanical act
that court. The SC may dismiss a petition for certiorari in just done by the clerk of court of writing the judgment in the
one sentence. “For lack of merit, petition is denied” book of entries of judgment.
th
The SC has the authority to dismiss the case without So if one the 16 day, the clerk of court is not there because
discussing factual findings and conclusions of law. he is on vacation, the date of the entry of judgment is the
How did SC justify it? SC said that we can dismiss in one date when he actually wrote down the entry in the books.
sentence, a petition because a partition for certiorari is not a So even if the clerk of court will write down the judgment in
matter of right. It is a privilege given to you. And if you did the book of entries of judgment, it will not matter. Because
not comply with the requirements for filing the petition for the date the judgment becomes final is deemed to be the
certiorari, then the court will not outrightly deny it. date of entry of judgment; even if the mechanical act of
entering was done several months after.
Section 2.Entry of judgments and final orders. — If no appeal or motion for new REMEDIES RECKONED FROM DATE OF JUDGMENT
trial or reconsideration is filed within the time provided in these Rules, the
judgment or final order shall forthwith be entered by the clerk in the book of
It is important to know that there are several remedies under
entries of judgments. The date of finality of the judgment or final order shall the rules of court that are reckoned from the date of entry
be deemed to be the date of its entry. The record shall contain the of judgment:
dispositive part of the judgment or final order and shall be signed by the
clerk, within a certificate that such judgment or final order has become final
1. petition for relief of judgment
and executory. (2a, 10, R51) -60 days from knowledge but not more than 6 months from
the entry of judgment
ENTRY OF JUDGMENT
When is there an entry of judgment? Section 3.Judgment for or against one or more of several parties. — Judgment may be
given for or against one or more of several plaintiffs and for or against one or
It occurs the moment the judgment becomes final and more of several defendants. When justice so demands, the court may require
executory. the parties on each side to file adversary pleadings as between themselves
and determine their ultimate rights and obligations. (3)
When does the judgment become final and executory?
Section 4.Several judgments. — In an action against several defendants, the
After the lapse of the reglementary period to appeal and court may, when a several judgment is proper, render judgment against one
no appeal is filed. or more of them, leaving the action to proceed against the others. (4)
If you did not appeal with in 15 days, the judgment
becomes final and executory. Section 5.Separate judgments. — When more than one claim for relief is
presented in an action, the court, at any stage, upon a determination of the
issues material to a particular claim and all counterclaims arising out of the
The moment the judgment becomes final and executory, transaction or occurrence which is the subject matter of the claim, may
then the judgment will be enterefd into the book of entries render a separate judgment disposing of such claim. The judgment shall
terminate the action with respect to the claim so disposed of and the action
of judgment. That is called ENTRY OF JUDGMENT. shall proceed as to the remaining claims. In case a separate judgment is
rendered the court by order may stay its enforcement until the rendition of a
subsequent judgment or judgments and may prescribe such conditions as
may be necessary to secure the benefit thereof to the party in whose favor
the judgment is rendered. (5a)
Section 6.Judgment against entity without juridical personality. — When judgment

is rendered against two or more persons sued as an entity without juridical
personality, the judgment shall set out their individual or proper names, if
known. (6a)

Kwin
RULE 37 NEW TRIAL OR RECONSIDERATION F.A.M.E.
We now go to the remedies once the judgment becomes These must be the reasons that prevented you from
final. participating in the trial of the case.
The judgment becomes final after the lapse of the period to
appeal and no appeal is filed by the losing party. FRAUD REFERS TO EXTRINSIC FRAUD
When the judgment becomes final and executory, it is the Fraud refers to extrinsic fraud, and not intrinsic fraud.
right of the prevailing party to ask for execution of In EXTRINSIC FRAUD, you were prevented from participating
judgment. in the trial, and therefore you were not able to present
But before the judgment becomes final and executory, evidence and resulted to losing the case. These were
meaning within the reglementary period to appeal the committed outside the trial of the case. These were
judgment, there are remedies provided for the losing committed intended to prevent you from participating in the
parties. trial of the case. And because of that, you were not able to
So aside from appeal, the losing party has the option of filing present evidence, and you lost the case.
a MNT or MR in rule 37. INTRINSIC FRAUD are those committed during the trial which
you could have discovered if only your lawyer is diligent in
RULE 37 the performance of his job.
New Trial or Reconsiderations
FRAUD REFERS TO ACTS WHICH ORDINARY PRUDENCE

WHEN MAY BE AVAILED OF
COULD NOT HAVE GUARDED AGAINST
-WITHIN PERIOD TO APPEAL
Fraud refers to acts which ordinary prudence could not have
1. MOTION FOR NEW TRIAL
guarded against and by reason of which the aggrieved party
2. MOTION FOR RECONSIDERATION
was impaired of his rights.
When can you avail of the remedy of new trial or motion for
reconsideration?
RULES FOR NMT
Within the period to appeal. You cannot do these if the
1. Fraud is EXTRINSIC FRAUD
judgment becomes final and executory.
2. NDE does not refer to forgotten evidence
3. New trial is different from reopening of trial
-AFTER PERIOD TO APPEAL:
-in the former, there is already the decision of the court
1. PETITION FOR RELEIF OF JUDGMENT
while in the latter, there is yet no decision, and you want to
2. PETITION FOR ANNULMENT OF JUDGMENT
introduce additional evidence that you want to present
Your remedy after it has become final and executory is
-in reopening of trial, the court has already terminated the
petition for relief of judgment under rule 38.
trial but there is yet no judgment. It is to be submitted for
Or later on, the last recourse would be annulment of
decision.
judgment under rule 47
Section 1.Grounds of and period for filing motion for new trial or reconsideration. —
Within the period for taking an appeal, the aggrieved party may move the GROUNDS FOR MR
trial court to set aside the judgment or final order and grant a new trial for
one or more of the following causes materially affecting the substantial
1. the damages awarded by the court is excessive
rights of said party: 2. the evidence is insufficient to satisfy a decision
(a) Fraud, accident, mistake or excusable negligence which ordinary 3. the decision is contrary to law
prudence could not have guarded against and by reason of which such
aggrieved party has probably been impaired in his rights; or
(b) Newly discovered evidence, which he could not, with reasonable
diligence, have discovered and produced at the trial, and which if presented PRO FORMA MOTION
would probably alter the result.
Within the same period, the aggrieved party may also move for
When you file for MR, you must point out specifically the
reconsideration upon the grounds that the damages awarded are excessive, finding or conclusions of the judgment or final orders which
that the evidence is insufficient to justify the decision or final order, or that are not supported by evidence or is contrary to law. OW, the
the decision or final order is contrary to law. (1a)
MR will be treated as a proforma motion; it is a mere scrap
of paper; it does not toll the running of the prescriptive
GROUNDS FOR NEW TRIAL
period.
1. FAME – fraud, accident, mistake or excusable negligence
The affidavit of merit must not only allege that the defendant
-which ordinary prudence could not have guarded against
has a meritorious defense; he must also describe the facts
and by reason of which such aggrieved party has probably
constituting the FAME.
been impaired in his rights
Talking of pro forma motions, you remember that when we
2. NDE – newly discovered evidence
discuss motions in general, then when you reiterate the very
same argument that was already passed upon by the court
in its judgment or decision, then your motion shall be

Kwin
considered as a proforma motion. That’s the GR. -FORGOTTEN EVIDENCE
When you file an MR, and you are not contented with the If this evidence were already there during the trial but you
decision of the court, but the argument in the MR are the simply forgot to avail of them, you cannot avail of the new
very same argument you have presented to the court before trial. This is not an NDE but a FORGOTTEN EVIDENCE and
the court decided the case. And such arguments were forgotten evidence is not a ground for new trial.
already discussed and passed upon by the court in its
decision, then your MR will be treated as a mere scrap of
paper because it is considered as a pro forma motion. Section 3.Action upon motion for new trial or reconsideration. — The trial court may
set aside the judgment or final order and grant a new trial, upon such terms
as may be just, or may deny the motion. If the court finds that excessive
damages have been awarded or that the judgment or final order is contrary
Section 2.Contents of motion for new trial or reconsideration and notice thereof. — The to the evidence or law, it may amend such judgment or final order
motion shall be made in writing stating the ground or grounds therefor, a accordingly. (3a)
written notice of which shall be served by the movant on the adverse party.
A motion for new trial shall be proved in the manner provided for proof of Section 4.Resolution of motion. — A motion for new trial or reconsideration
motion. A motion for the cause mentioned in paragraph (a) of the preceding shall be resolved within thirty (30) days from the time it is submitted for
section shall be supported by affidavits of merits which may be rebutted by resolution. (n)
affidavits. A motion for the cause mentioned in paragraph (b) shall be
supported by affidavits of the witnesses by whom such evidence is expected
to be given, or by duly authenticated documents which are proposed to be PERIOD TO DECIDE MOTION
introduced in evidence. MR or MNT should be decided within 30 days from the time it
A motion for reconsideration shall point out a specifically the findings or
conclusions of the judgment or final order which are not supported by the is submitted for resolution
evidence or which are contrary to law making express reference to the
testimonial or documentary evidence or to the provisions of law alleged to EFFECT WHEN MR IS GRANTED
be contrary to such findings or conclusions.
A pro forma motion for new trial or reconsideration shall not toll the When the court grants MR, and finds the damages awarded
reglementary period of appeal. (2a) as excessive, then it shall set side the portion of that
judgment. It may amend such judgment or final order
CONTENTS OF MNT accordingly.
1. IF GROUND IS FAME
The motion must be accompanied by an AFFIDAVIT OF Section 5.Second motion for new trial. — A motion for new trial shall include all
grounds then available and those not so included shall be deemed waived. A
MERIT second motion for new trial, based on a ground not existing nor available
2. IF GROUND IS NDE when the first motion was made, may be filed within the time herein
It must be supported by the AFFIDAVITS OF THE WITNESSES provided excluding the time during which the first motion had been
pending.
by whom such evidence is expected to be given. No party shall be allowed a second motion for reconsideration of a judgment
You must prove that non discovery is through no fault of or final order (4a, 4, IRG)
your own.
SECOND MOTION
In an MNT, the motion must be accompanied by an affidavit MR MNT
of merit. OW the MNT will be denied because this is an Not allowed Allowed
important requirement.
SECOND MOTION FOR NET TRIAL – WHEN ALOWED
AFFIDAVIT OF MERIT You may have a second motion if the ground that you used
It is an affidavit of the movant stating that he was not able to for the 2nd MNT were not existing at the time you filed the
participate in the trial because of FAME, and if only he will first MNT.
be allowed to present his evidence, he has a very good and Example, the ground for 1st is FAME. The ground for 2nd MNT
meritorious case or defense. is NDE.
AFFIDAVIT OF THE WITNESS ONE MOTION FOR RECONSIDERATION

If the ground is NDE, it must also be accompanied by the But in the case of MR, you are allowed only one MR. you
affidavit of the witness that you want to present. nd
cannot file a 2 MR.
NON DISCOVERY OF NDE THROUGH NO FAULT OF YOUR

OWN
When the ground is NDE, you must show to the court that
you were not able to discover the evidence during the trial
through no fault of your own. You could not have discovered
those evidence despite due diligence. It is because it is not
available at the time of the trial.

Kwin
Section 6.Effect of granting of motion for new trial. — If a new trial is granted in Section 9.Remedy against order denying a motion for new trial or reconsideration. —
accordance with the provisions of this Rules the original judgment or final An order denying a motion for new trial or reconsideration is not appealed,
order shall be vacated, and the action shall stand for trial de novo; but the the remedy being an appeal from the judgment or final order. (n)
recorded evidence taken upon the former trial, insofar as the same is
material and competent to establish the issues, shall be used at the new trial
without retaking the same. (5a)
REMEDY AGAINST ORDER DENYING MR/MNT
Can you appeal the order of the court denying the motion?
EFFECT WHEN MNT IS GRANTED NO. It is not appealable. This is because of the new
If MNT is granted in accordance with the provision of this provision in rule 41 sec 1 that we will discuss later.
rule, the original judgment or final order shall be vacated.
And the action shall now stand trial de novo. Furthermore, the remedy, being an appeal for the
But the recorded evidence taken upon the formal trial insofar judgment or final order, certiorari under rule 65 is no longer
as the same is material or relevant to the case shall be used a remedy pursuant to AM 07-7-12, Dec 27, 2007. (!!!)
at the new trial without retaking the same. Under this administrative matter, even certiorari is no
longer a remedy in the denial of MR or MNT
EFFECT OF GRANT OF MOTION
MR MNT So what is your remedy?
Court will just amend its There will be trial de novo – Your remedy is to appeal the judgment, not appeal the
decision decision is set aside and the order denying the MR/MNT.
movant is allowed to present Because remember, when you file the MR/MNT, it is during
evidence the period to appeal. If it is denied, you still have time to
appeal. MR/MNT suspends the running of the appeal.
So when you appeal the judgment, you can point out those
Section 7.Partial new trial or reconsideration. — If the grounds for a motion under parts of the judgment that you want to present in the
this Rule appear to the court to affect the issues as to only a part, or less MR/MNT.
than an of the matter in controversy, or only one, or less than all, of the
parties to it, the court may order a new trial or grant reconsideration as to
such issues if severable without interfering with the judgment or final order
upon the rest. (6a)
PARTIAL GRANT
MR MNT
Allowed Allowed
Section 8.Effect of order for partial new trial. — When less than all of the issues
are ordered retried, the court may either enter a judgment or final order as to
the rest, or stay the enforcement of such judgment or final order until after
the new trial. (7a)

Kwin
December 7, 2011 EFFECT OF DENIAL OF MOTION; REMEDY
First part is recap on MR/MNT: The MNT and MR suspends the running of the reglementary
period to appeal. If the court denies your MR or MNT, can
REMEDIES WITIN PERIOD TO APPEAL you appeal the order of the court denying it?
Within the reglementary period to appeal, the law allows you NO. That is not appealable because that is an interlocutory
two remedies: order.
1. Motion for new trial
2. Motion for reconsideration So what is your remedy?
(3.) Appeal You have to appeal the judgment.
You only have to file a notice of appeal which is only one
GROUNDS FOR MOTION FOR NEW TRIAL paragraph.
1. FAME
2. NDE -15 DAY FRESH PERIOD RULE
When the MNT or MR is denied, then you have to appeal the
NEWLY DISCOVERED EVIDENCE judgment itself, not the judgment denying the motion.
These were already existing but you could not discover Within what period are you allowed to appeal? If you file
despite diligent effort because they were not there. But if your MR on the 7h day of the 15 day period to appeal. If it is
they are there, you cannot avail of this ground. denied, the period will start to run again. Can you appeal
within the balance? When can you file your appeal?
F.A.M.E. - ACCOMPANIED BY AN AFFIDAVIT OF MERIT -Case: Neypes vs CA Sept 14, 2005
When you anchor on the ground of fame, the motion must SC said that if the MR or MNT is denied, you have a fresh
be accompanied by an affidavit of merit where you state period of 15 days to appeal, not just the balance.
that if he court grants you new trial, you can show that you
have a meritorious defense. SECOND MOTION
Can you file a second MR or MNT?
MNT - ACCOMPANIED BY AFFIDAVITS OF YOUR NEW -ALLOWED IN MNT
WITNESSES You can file a second MNT if it is anchored on the another
MNT must be accompanied by affidavits of your new ground not yet existing at the time you filed the 1st MNT
witnesses that you will present or your newly discovered -NOT ALLOWED IN MR
evidence In MR, you are not allowed to file a second MR. There is no
second motion for MR except in SC where they had 5 MRs
GROUNDS FOR MOTION FOR RECONSIDERATION In the rules of court, there is no second MR.
1. damages awarded by the court is excessive
2. the decision of the court is not supported by evidence of
that it is contrary to law
EFFECT OF FILING MR/MNT – SUSPEND 15 DAY PERIOD TO

APPEAL
What is the effect if you file a MR or MNT?
The filing suspends the running of the period to appeal
because you file it within a period to appeal.
EFFECT OF GRANTING MNT – SET ASIDE JUDGMENT

What happens if the court grants the MNT, the court will set
aside its judgment and allow you to present your evidence
as if there is a trial de novo.
EFFECT OF GRANTING MR – AMEND JUDGMENT

If the court grants you MR, then the court will amend its
order.
If the ground is excessive damages, the court will reduce its
damages.
If the ground for MR is that the decision is not supported by
sufficient evidence, the court will just simply change the
decision in your favor.

Kwin
RULE 38 RELIEF FROM JUDGMENT, ORDERS OR OTHER Section 3.Time for filing petition; contents and verification. — A petition provided
for in either of the preceding sections of this Rule must be verified, filed
PROCEEDINGS within sixty (60) days after the petitioner learns of the judgment, final
RULE 38 order, or other proceeding to be set aside, and not more than six (6) months
Relief from Judgments, Orders, or Other Proceedings after such judgment or final order was entered, or such proceeding was
taken, and must be accompanied with affidavits showing the fraud,
Section 1.Petition for relief from judgment, order, or other proceedings. — When a accident, mistake, or excusable negligence relied upon, and the facts
judgment or final order is entered, or any other proceeding is thereafter constituting the petitioner's good and substantial cause of action or defense,
taken against a party in any court through fraud, accident, mistake, or as the case may be. (3)
excusable negligence, he may file a petition in such court and in the same
case praying that the judgment, order or proceeding be set aside. (2a)
TIME FOR FILING PETITION
2 prescriptive periods:
RULE 38 (PRJ) VS RULE 37 (MNT)
1. Within 60 days from knowledge of judgment that is final
37: grounds are FAME and NDE
and executory
38: grounds are FAME
2. Not more than 6 months from the entry of judgment
37: available after judgment but before it becomes final and
ENTRY OF JUDGMENT
executory.
When is there an entry of judgment?
38: available after the judgment became final and executory
The date of the finality of judgment is deemed to be the
IOW you can no longer appeal. This is one of the last
date of entry of judgment (as discussed before)
recourse
Before, the entry of judgment is the mechanical act of the
dispositive portion of judgment in the book of judgment by
WHEN MAY BE AVAILED
the clerk of court.
When the court renders a decision adverse to you because
Now, the moment the judgment becomes final… The
you were not able to participate in the trial of the case
judgment becomes final after lapse of 15 day period to
because of FAME
appeal and no MR or MNT or appeal is filed, even if it was
So if the reason of FAME you were not able to present
not actually entered in the book of entries by the clerk of
evidence in court which resulted to your losing the case, and
court.
the decision is already final and executory (15 day period to
appeal has lapsed) your last remedy is to file a petition for
PRJ: F.A.M.E. – AFFIDAVIT OF MERIT
relief from judgment.
GR: AFFIDAVIT OF MERIT
If you learned about the decision before the lapse of appeal,
Petition for relief from judgment is also anchored on the
your remedy is MNT.
ground of FAME. So just like MNT, since it is anchored on
Section 2.Petition for relief from denial of appeal. — When a judgment or final
FAME, it is therefore important that your petition for relief
order is rendered by any court in a case, and a party thereto, by fraud, of judgment must be accompanied with affidavit of merit.
accident, mistake, or excusable negligence, has been prevented from taking EXPT: ABSENCE OF JURISDICTION OF COURT
an appeal, he may file a petition in such court and in the same case praying
that the appeal be given due course. (1a)
Like MNT, there is no need for affidavit of merit if the ground
is absence of jurisdiction on the part of the court. Example.
RULE 38 SEC 1 VS RULE 38 SEC 2 You have never received the summons.
1: petition for relief from judgment because of FAME
2: petition for relief from denial of appeal because of FAME
Section 4.Order to file an answer. — If the petition is sufficient in form and
substance to justify relief, the court in which it is filed, shall issue an order
1: if the court will grant it, the court will set aside the requiring the adverse parties to answer the same within fifteen (15) days
judgment and allow you to present evidence now, as if from the receipt thereof. The order shall be served in such manner as the
court may direct, together with copies of the petition and the accompanying
there is trial de novo affidavits. (4a)
2: if the court will grant it, the court will allow you to appeal
ORDER TO FILE AN ANSWER
PETITION FOR RELIEF FROM DENIAL OF APPEAL When you file a petition for relief of judgment, the court may
This presupposes that your were able to participate in the either grant or deny it.
trial. In fact, you were able to present evidence. You were If it grants it, it means the court finds your petition to be
not able to appeal because of FAME. You did not know of sufficient in form and substance. The court will require the
the judgment. other party to file an answer to your petition within 15 days
Example. The opponent connived with the sheriff. He made it from receipt.
appear that the other party had already received the
decision. You discovered it only after the decision became
final and executory. Your remedy is petition for relief from
the denial of appeal.

Kwin
Section 5.Preliminary injunction pending proceedings. — The court in which the Section 7.Procedure where the denial of an appeal is set aside. — Where the denial of
petition is filed may grant such preliminary injunction as may be necessary an appeal is set aside, the lower court shall be required to give due course to
for the preservation of the rights of the parties, upon the filing by the the appeal and to elevate the record of the appealed case as if a timely and
petitioner of a bond in favor of the adverse party, conditioned that if the proper appeal had been made. (7a)
petition is dismissed or the petitioner fails on the trial of the case upon its
merits, he will pay the adverse party all damages and costs that may be
awarded to him by reason of the issuance of such injunction or the other RELEIF FROM GRANT OF PETITION FOR RELEIF FROM
proceedings following the petition, but such injunction shall not operate to JUDGMENT
discharge or extinguish any lien which the adverse party may have acquired If the court grants petition for relief from judgment, can the
upon, the property, of the petitioner. (5a)
other party appeal?
NO. It is not appealable because it is an interlocutory order.
PRELIMINARY INJUNCTION PENDING PROCEEDINGS
After the other party (prevailing party) has filed his answer,
When it proceeds with reception of evidence, there will be
the court will conduct a hearing to determine WON to grant
trial on the merits. There will judgment on the merits, which
the petition. During the hearing of the case, the court may
will be now be appealable.
grant preliminary injunction to prevent execution of
It is the judgment on the merits that is appealable, not the
judgment.
order granting or denying the petition for relief from
Remember the decision is already final and executory. It
judgment.
could be executed anytime unless a restraining order is
order by the court.
So when you file a petition for relief from judgment, you
include it in the prayer to enjoin the court from enforcing
the judgment.
Section 6.Proceedings after answer is filed. — After the filing of the answer or the
expiration of the period therefor, the court shall hear the petition and if after
such hearing, it finds that the allegations thereof are not true, the petition
shall be dismissed; but if it finds said allegations to be true, it shall set aside
the judgment or final order or other proceeding complained of upon such
terms as may be just. Thereafter the case shall stand as if such judgment,
final order or other proceeding had never been rendered, issued or taken.
The court shall then proceed to hear and determine the case as if a timely
motion for a new trial or reconsideration had been granted by it. (6a)
PROCEEDINGS AFTER ANSWER

After the answer, the court will conduct a hearing to
determine WON to grant your petition.
HEARINGS IN PETITION FOR RELEIF FROM JUDGMENT

IOW there are two kinds of hearings in the petition for relief
from the judgment
1. Hearing to determine WON petition for relief from
judgment is sufficient in form and substance
This is for the purpose of knowing whether the court will
give due course to your petition.
2. Hearing on the merits of the case
Here, when the prevailing party is required to make an
answer, that would mean that the court gave due course to
your petition. It is necessary for the courts to conduct a
hearing on the merits because you will now be allowed to
present your evidence.
Remember, you have filed a petition for relief from
judgment because you have not presented your evidence
because of FAME.

Kwin
RULE 39 EXECUTION, SATISFACTION AND EFFECT OF Section 5.Effect of reversal of executed judgment. — Where the executed judgment
is reversed totally or partially, or annulled, on appeal or otherwise, the trial
JUSGMENT court may, on motion, issue such orders of restitution or reparation of
RULE 39 damages as equity and justice may warrant under the circumstances. (5a)
Execution, Satisfaction and Effect of Judgments
Section 1.Execution upon judgments or final orders. — Execution shall issue as a
matter of right, or motion, upon a judgment or order that disposes of the
action or proceeding upon the expiration of the period to appeal therefrom if Section 6.Execution by motion or by independent action. — A final and executory
no appeal has been duly perfected. (1a) judgment or order may be executed on motion within five (5) years from the
If the appeal has been duly perfected and finally resolved, the execution may date of its entry. After the lapse of such time, and before it is barred by the
forthwith be applied for in the court of origin, on motion of the judgment statute of limitations, a judgment may be enforced by action. The revived
obligee, submitting therewith certified true copies of the judgment or judgment may also be enforced by motion within five (5) years from the date
judgments or final order or orders sought to be enforced and of the entry of its entry and thereafter by action before it is barred by the statute of
thereof, with notice to the adverse party. limitations. (6a)
The appellate court may, on motion in the same case, when the interest of
justice so requires, direct the court of origin to issue the writ of execution.
(n) KINDS OF EXECUTION
-AS TO ITS NATURE
This is the most important rule because this is the time you 1. Execution as a matter of right
will reap the fruits of your labor. 2. Execution as a matter of judicial discretion/execution
pending appeal
WHEN JUDGMENT MAY BE EXECUTED -ACCORDING TO ITS ENFORCEMENT
Judgment can be executed only when it is final and 1. Execution by mere motion
executory, which is after the lapse of the period to appeal 2. Execution by action or by an independent action
and no appeal or MR or MNT was filed.
MOTION FOR ISSUANCE OF WRIT OF EXECUTION EXECUTION AS A MATTER OF RIGHT

When the judgment becomes FnE, the next step is to ask for When is an execution a matter of right?
the issuance of writ of execution you file for motion for Execution is a matter of right when the judgment is final
issuance of writ of execution and executory. As a rule, the court cannot anymore deny the
execution. It becomes sort of a ministerial duty of the court
Section 2.Discretionary execution. — to issue the writ of execution.
(a) Execution of a judgment or final order pending appeal. — On motion of the
prevailing party with notice to the adverse party filed in the trial court while
it has jurisdiction over the case and is in possession of either the original
-WHEN JUDGMENT BECOMES FINAL AND EXECUTORY
record or the record on appeal, as the case may be, at the time of the filing of It becomes final after the lapse of period to appeal, and no
such motion, said court may, in its discretion, order execution of a judgment appeal is filed.
or final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction the motion for execution pending
appeal may be filed in the appellate court. -MOTION FOR EXECUTION OF JUDGMENT
Discretionary execution may only issue upon good reasons to be stated in a If it is a matter of right, you file a motion for execution of
special order after due hearing.
(b) Execution of several, separate or partial judgments. — A several, separate or
judgment.
partial judgment may be executed under the same terms and conditions as
execution of a judgment or final order pending appeal. (2a) -GR: NO NEED TO INFORM LOSING PARTY OF YOUR
MOTION
Section 3.Stay of discretionary execution. — Discretionary execution issued Do you have to inform the losing party of your motion? Or
under the preceding section may be stayed upon approval by the proper
court of a sufficient supersedeas bond filed by the party against whom it is can the court grant your motion ex parte without the
directed, conditioned upon the performance of the judgment or order knowledge of the defendant?
allowed to be executed in case it shall be finally sustained in whole or in
part. The bond thus given may be proceeded against on motion with notice
When the execution is a matter of right, there is no need to
to the surety. (3a ) inform the losing party. Anyway, the other party is aware of
the decision. And he knows that the decision is already final.
He did not file the appeal.
Section 4.Judgments not stayed by appeal. — Judgments in actions for injunction, It can be done ex parte and there is no need to inform the
receivership, accounting and support, and such other judgments as are now losing party.
or may hereafter be declared to be immediately executory, shall be
enforceable after their rendition and shall not, be stayed by an appeal taken -EXPT: APPEALED JUDGMENT
therefrom, unless otherwise ordered by the trial court. On appeal therefrom, Is there an instance where you have to notify the losing
the appellate court in its discretion may make an order suspending,
party before the court well issue the writ of execution?
modifying, restoring or granting the injunction, receivership, accounting, or
award of support. When there is an appeal and the decision you want
The stay of execution shall be upon such terms as to bond or otherwise as execution is an appealed judgment.
may be considered proper for the security or protection of the rights of the
adverse party. (4a)
-WHERE TO FILE:
1. IN COURT OF ORIGIN
2. IN APPELLATE COURT (CA)

Kwin
1. FILE APPEAL IN THE COURT OF ORIGIN EXECUTION BY MERE MOTION
Example. If the RTC renders judgment in your favor. The -WITHIN 5 YEARS FROM FINALITY OF JUDGMENT THROUGH
opponent appealed in CA. CA affirmed in toto the RTC MOTION FOR EXECUTION OF JUDGMENT IN THE COURT
decision. How do you enforce the judgment of CA. He did THAT RENDERED JUDGMENT
not anymore file an appeal to SC. Where will you file the A FnE judgment can be executed by a mere motion within 5
motion for execution of judgment? years from the finality of that judgment. You only need to
The motion for the execution of an appealed judgment file a motion for execution of judgment in the court that
shall be filed in the court of origin, in this case, the RTC. rendered the judgment
-BEFORE: FILE ONLY WHEN THE RECORDS ARE RETURNED
When you file it in RTC, the rule before is that you can EXECUTION BY ACTION/INDEPENDENT ACTION
only file it in RTC after CA has returned all the records of -AFTER 5 YEARS, WITHIN 10 YEARS THROUGH
the case to the lower court. Sometimes it takes months or INDEPENDENT MOTION FOR REVIVAL OF JUDGMENT
even years to reach the lower court. So you cannot file the If you failed to file in 5 years, you can still execute it after 5
motion of execution. years but within 10 years. But you have to file an
-NOW: REQUIRE ONLY CERTIFIED TRUE COPY OF DECISION independent action for revival of judgment. Because after
Now, under the new rules, you do not have to wait for the lapse of 5 years, the judgment becomes dormant. It can
the records of the case. All you need is a certified true copy only be revived by independent action.
of the decision of CA. then you may ask the issuance of writ
of execution. -AFTER 10 YEARS – ALREADY PRESCRIBED
-PVDD: MOTION FOR EXECUTION IS SET FOR HEARING If you have not executed the judgment in 10 years, you can
If you file the motion for execution of judgment no longer enforce of judgment. That is functus officus. It has
through certified true copy of the decision in the court of prescribed
origin, the motion for execution must be set for hearing
in the court of origin. And the losing party must be -MANNER OF ENFORCING REVIVED JUDGMENT
notified of the hearing. He should be given a copy of the If you were not able to execute within 5 years by a mere
motion, the court should be notified of the motion. motion, you file an independent action. When you file an
-PURPOSE OF HEARING: SUPERVENING EVENT action for the revival of judgment, how do you enforce the
Why should the motion be heard and the losing party revived judgment? Can you enforce it by mere motion or by
be allowed to participate? independent action?
Because there might be some supervening event that YES. It can be executed by mere motion with 5 years, and
transpired. The losing party should be given a chance to another action for revival of judgment within 10 years.
be heard and have the opportunity to point out the -Case: PNB vs Bondoc
supervening event that may prevent the execution of the SC said that a revived judgment is just like an original
judgment. judgment. It can be executed by mere motion with 5 years,
and another action for revival of judgment within 10 years.
2. FILE APPEAL IN CA
Can you not file a motion for execution in CA? This was later on abandoned by SC:
YES. When you notice that the court of origin is delaying -Case: PNB vs De Loso
the issuance the writ of execution and it is detrimental to SC said that if the judgment is already a revived judgment,
you. You may go directly to CA. you are allowed to enforce it by motion within 5 years. You
The CA will not be the one to execute its own judgment, cannot anymore file another action for revival of judgment.
what it will do is only to order the RTC to issue the writ of
execution. This was reiterated by SC in the case of:
-Case: Luzon Surety Co Inc vs IAC
SC said the correct rule id PNB vs de Loso. A revived
judgment can only be enforced within 5 years by a mere
motion. You cannot anymore file a second action for revival
of judgment.
This has been rendered obsolete by the passage of new

rules of civil procedure. Under the new rules, sec 6. The
revived judgment may also be enforced by motion within 5
years from the date of its entry and then thereafter by
action before it is barred by statute of limitations. IOW sec 6
has restored the old rule in PNB vs Bondoc.

Kwin
GR: FINAL AND EXECUTORY ORDER – MINISTERIAL TO ISSUE DISCRETIONARY EXECUTION
WRIT OF EXECUTION This refers to the execution of the judgment that has not yet
When the judgment or order has become final and become final. The court has the discretion to issue of writ of
executory, it becomes the ministerial duty of the court to execution even before the lapse of period to appeal or when
issue a writ of execution the judgment becomes final.
EXPT:
But there are instances where the court may refuse to issue -CONDITIONS
despite the fact that the judgment became final and There are certain condition for the court to grant
executory discretionary execution:
1. SUPERVENING EVENTS 1. If there are good reasons for its issuance
When after the judgment becomes final there are 2. Motion for discretionary execution or motion pending
supervening events that would render the execution of the appeal filed by the prevailing party
judgment unjust or impossible 3. Court must conduct a hearing
Example. You filed a case against the bank. You won. But 4. Grant is contained in a special order for its issuance
that same bank has another case where the court placed it
under receivership. The assets of the bank are now frozen. -GOOD REASONS FOR ISSUANCE
So you cannot sell the assets without the conformity of the What are the good reasons that may justify the court in
receiver. issuing the discretionary execution?
2. EQUITABLE GROUND – CHANGE IN SITUATION OF PARTIES a. Where the lapse of time would make the ultimate
On equitable ground when there has been a change in the judgment ineffective
situation of the parties which makes the execution -Example. Subject matter of case are perishable goods
inequitable. There is a change in the situation of the parties. b. The appeal is clearly dilatory
Example. The judgment debtors eventually becomes the c. The defendant are exhausting their income and assets
owner of the subject of the case. -While the case is pending appeal, you discovered that
3. JUDGMENT WAS NOVATED the defendant is selling its property.
When after the judgment becomes final, the judgment was d. Where the prevailing part is already very old
novated by mutual agreement between parties.
Example. The defendant who lost the collection case asked -WHERE TO FILE
the plaintiff to pay in installment. Instead of enforcing the Where will you file the motion for discretionary execution?
payment lump sum, you agreed with the losing party, you 1. COURT THAT RENDERED THE EXECUTION
can no longer execute the judgment. Such agreement has In the court that renders the judgment as long as the court
novated the judgment has not yet lost its jurisdiction. This is what we call
4. LOSING PARTY FILED PETITION FOR RELEIF FROM discretionary execution.
JUDGMENT WITH PRELIMINARY INJUNCTION 2. APPELLATE COURT
When the judgment has become final but before it can be But once the RTC has lost its jurisdiction, where the appeal
executed, the losing party filed a petition for relief from have been perfected and the records of the case have been
judgment and was able to secure a preliminary injunction. forwarded, you may ask for discretionary execution in CA.
5. JUDGMENT BECAME DOORMANT This is now the real execution of judgment pending appeal
When the judgment has become dormant (not until you file
a revival of judgment). -EFFECT OF RULING OF APPELLATE COURT AGAINST YOU
AFTER GRANT OF EXECUTION PENDING APPEAL
What if the court grants execution pending appeal but the
GR: CANNOT AMEND FINAL AND EXECUTORY JUDGMENT appellate court ruled against you?
When the judgment becomes final and executory, the court If the court grants an execution pending appeal, restitution
cannot amend the judgment. or reparation must take place. You must return what you
EXPT: have received and the court that issued the execution
1. CORRECTION OF TYPOGRAPHICAL ERROR pending appeal must issue and order for restitution or
However there are exceptions to that rule. The court can reparation as equity and justice may warrant under the
make amendment only to make corrections of clerical or circumstances.
typographical error
2. TO CLARIFY AMBIGUITIES
3. JUDGMENT FOR SUPPORT
A judgment for support can be changed anytime, as
discussed in Family Law. It can always be change when
circumstances warrant.

Kwin
Section 7.Execution in case of death of party. — In case of the death of a party, Section 8.Issuance, form and contents of a writ of execution. — The writ of execution
execution may issue or be enforced in the following manner: shall: (1) issue in the name of the Republic of the Philippines from the court
(a) In case of the death of the judgment obligee, upon the application of his which granted the motion; (2) state the name of the court, the case number
executor or administrator, or successor in interest; and title, the dispositive part of the subject judgment or order; and (3)
(b) In case of the death of the judgment obligor, against his executor or require the sheriff or other proper officer to whom it is directed to enforce
administrator or successor in interest, if the judgment be for the recovery of the writ according to its terms, in the manner hereinafter provided:
real or personal property, or the enforcement of a lien thereon; (a) If the execution be against the property of the judgment obligor, to satisfy
(c) In case of the death of the judgment obligor, after execution is actually the judgment, with interest, out of the real or personal property of such
levied upon any of his property, the same may be sold for the satisfaction of judgment obligor;
the judgment obligation, and the officer making the sale shall account to the (b) If it be against real or personal property in the hands of personal
corresponding executor or administrator for any surplus in his hands. (7a) representatives, heirs, devisees, legatees, tenants, or trustees of the judgment
obligor, to satisfy the judgment, with interest, out of such property;
(c) If it be for the sale of real or personal property to sell such property
EXECUTION IN CASE OF DEATH OF PARTY describing it, and apply the proceeds in conformity with the judgment, the
How do you execute a judgment when the party to a case material parts of which shall be recited in the writ of execution;
dies? (d) If it be for the delivery of the possession of real or personal property, to
deliver the possession of the same, describing it, to the party entitled
Distinguish: Who the party? Plaintiff or defendant? When did thereto, and to satisfy any costs, damages, rents, or profits covered by the
the party die? Before judgment was issued or after? judgment out of the personal property of the person against whom it was
1. In case of the death of the judgment obligee (judgment rendered, and if sufficient personal property cannot be found, then out of the
real property; and
creditor) (e) In all cases, the writ of execution shall specifically state the amount of the
-upon the application of his executor or administrator, or interest, costs, damages, rents, or profits due as of the date of the issuance of
successor in interest; the writ, aside from the principal obligation under the judgment. For this
purpose, the motion for execution shall specify the amounts of the foregoing
-if the JC died before the judgment, the case shall be reliefs sought by the movant.(8a)
continued by his executor or administrator
-if the JC died after the judgment was rendered in his favor, WRIT OF EXECUTION
it may still be continued by his executor or administrator. A writ of execution is an order from the court to the sheriff to
They will be the ones to file for the execution of judgment. enforce the judgment
2. In case of the death of the judgment obligor (judgment How the sheriff will enforce the judgment depends on the
debtor) kind of execution; for recovery of property or decision to
-it shall be executed against his executor or administrator pay money. The writ of execution will have to adjust to the
or successor in interest, if the judgment be for the recovery decision.
of real or personal property, or the enforcement of a lien
thereon -CONTENTS
1. QUOTE DISPOSITIVE PORTION
3. In case of the death of the judgment obligor, after A writ of execution must quote the dispositive portion of
execution is actually levied upon any of his property, the decision.
-the same may be sold for the satisfaction of the judgment 2. SPECIFY AMOUNT TO BE RECOVERED
obligation, and the officer making the sale shall account to When the prevailing party files a motion for execution of
the corresponding executor or administrator for any judgment, he must specify the amount to be recovered. Do
surplus in his hands. not leave it to the sheriff to compute how much.
-the rule on judgment of payment of money is found in
paragraph C
-there is a judgment and the judgment is for payment of
money. The JD died after the judgment has become final
but there was yet no levy on execution made by the sheriff.
The judgment will be presented as a claim against the
estate.
-if there is already a levy, the execution sale will be
continued. If the sale is more than the execution, the
sheriff will deliver the surplus to the executor or
administrator

Kwin
Section 9.Execution of judgments for money, how enforced. — HOW A JUDGMENT IS EXECUTED
(a) Immediate payment on demand. — The officer shall enforce an execution of a This is best addressed to the sheriff.
judgment for money by demanding from the judgment obligor the
immediate payment of the full amount stated in the writ of execution and all
lawful fees. The judgment obligor shall pay in cash, certified bank check MONEY JUDGMENT
payable to the judgment obligee, or any other form of payment acceptable to
the latter, the amount of the judgment debt under proper receipt directly to
It refers to a judgment that directs the judgment debtor to
the judgment obligee or his authorized representative if present at the time pay a certain sum of money
of payment. The lawful fees shall be handed under proper receipt to the
executing sheriff who shall turn over the said amount within the same day
to the clerk of court of the court that issued the writ.
-STEPS IN EXECUTION OF MONEY JUDGMENT
If the judgment obligee or his authorized representative is not present to There are three steps to be observed
receive payment, the judgment obligor shall deliver the aforesaid payment to A.1. To demand payment from the judgment debtor
the executing sheriff. The latter shall turn over all the amounts coming into
his possession within the same day to the clerk of court of the court that
The sheriff if to bring the writ of execution to the JD
issued the writ, or if the same is not practicable, deposit said amounts to a and show it to JD and ask him to pay the amount stated
fiduciary account in the nearest government depository bank of the Regional therein.
Trial Court of the locality.
The clerk of said court shall thereafter arrange for the remittance of the
deposit to the account of the court that issued the writ whose clerk of court 2. JD has to pay in cash or in manager’s check or any other
shall then deliver said payment to the judgment obligee in satisfaction of the payment acceptable by the JC
judgment. The excess, if any, shall be delivered to the judgment obligor
while the lawful fees shall be retained by the clerk of court for disposition as What he will collect is the principal amount in writ of
provided by law. In no case shall the executing sheriff demand that any execution, other fees and sheriff’s fee.
payment by check be made payable to him.
(b) Satisfaction by levy. — If the judgment obligor cannot pay all or part of the
3. Deliver amount to JC/ clerk of court.
obligation in cash, certified bank check or other mode of payment What will the sheriff do with the money collected?
acceptable to the judgment obligee, the officer shall levy upon the properties The principal amount will be delivered to JC. OW it will
of the judgment obligor of every kind and nature whatsoever which may be
disposed, of for value and not otherwise exempt from execution giving the
be delivered to clerk of court
latter the option to immediately choose which property or part thereof may The lawful fees will be delivered to the clerk of court.
be levied upon, sufficient to satisfy the judgment. If the judgment obligor
does not exercise the option, the officer shall first levy on the personal
properties, if any, and then on the real properties if the personal properties B.1. Levy on execution
are insufficient to answer for the judgment. If the JD does not have the money to pay despite
The sheriff shall sell only a sufficient portion of the personal or real property demands from the sheriff, you go to step 2. The sheriff
of the judgment obligor which has been levied upon.
When there is more property of the judgment obligor than is sufficient to will start to levy the property in preparation for
satisfy the judgment and lawful fees, he must sell only so much of the execution sale.
personal or real property as is sufficient to satisfy the judgment and lawful The levy is the act of setting aside the property of JD in
fees.
Real property, stocks, shares, debts, credits, and other personal property, or preparation for the execution sale.
any interest in either real or personal property, may be levied upon in like -PROPERTIES TO BE LEVIED
manner and with like effect as under a writ of attachment. What property shall be levied by the sheriff?
(c) Garnishment of debts and credits. — The officer may levy on debts due the 1. Real property
judgment obligor and other credits, including bank deposits, financial 2. Personal property
interests, royalties, commissions and other personal property not capable of The rule is that personal property must first levy the
manual delivery in the possession or control of third parties. Levy shall be
made by serving notice upon the person owing such debts or having in his personal property. But the JD may decide which of the
possession or control such credits to which the judgment obligor is entitled. properties shall be levied first.
The garnishment shall cover only such amount as will satisfy the judgment If the sheriff will decide, he must levy the personal
and all lawful fees.
The garnishee shall make a written report to the court within five (5) days properties first before the real properties
from service of the notice of garnishment stating whether or not the
judgment obligor has sufficient funds or credits to satisfy the amount of the 2. The sheriff will deposit it in court.
judgment. If not, the report shall state how much funds or credits the
garnishee holds for the judgment obligor. The garnished amount in cash, or
certified bank check issued in the name of the judgment obligee, shall be
delivered directly to the judgment obligee within ten (10) working days
from service of notice on said garnishee requiring such delivery, except the
lawful fees which shall be paid directly to the court.
In the event there are two or more garnishees holding deposits or credits
sufficient to satisfy the judgment, the judgment obligor, if available, shall
have the right to indicate the garnishee or garnishees who shall be required
to deliver the amount due, otherwise, the choice shall be made by the
judgment obligee.
The executing sheriff shall observe the same procedure under paragraph (a)
with respect to delivery of payment to the judgment obligee. (8a, 15a)
AFTER BREAK

Kwin
C.1. Garnishment of intangible properties Section 10.Execution of judgments for specific act. —
If the JD does not have sufficient real or personal (a) Conveyance, delivery of deeds, or other specific acts; vesting title. — If a judgment
directs a party to execute a conveyance of land or personal property, or to
property top satisfy the judgment, the sheriff must start deliver deeds or other documents, or to perform, any other specific act in
looking for intangible properties. connection therewith, and the party fails to comply within the time
specified, the court may direct the act to be done at the cost of the
This refers to the levy on the debts due to JD and other disobedient party by some other person appointed by the court and the act
credits including bank deposits, financial interests, when so done shall have like effect as if done by the party. If real or personal
royalties, commissions and other personal property not property is situated within the Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the title of any party and vest it
capable of manual delivery. This refers to what the JD is in others, which shall have the force and effect of a conveyance executed in
supposed to collect from other persons. This are money due form of law. (10a)
or property owing to the JD. (b) Sale of real or personal property. — If the judgment be for the sale of real or
personal property, to sell such property, describing it, and apply the
The sheriff will garnish the properties.
proceeds in conformity with the judgment. (8[c]a)
-DEPOSITS IN BANK (c) Delivery or restitution of real property. — The officer shall demand of the
TN that bank deposit belong to this category of person against whom the judgment for the delivery or restitution of real
collectibles. property is rendered and all persons claiming rights under him to peaceably
vacate the property within three (3) working days, and restore possession
And remember that when you deposit money in the thereof to the judgment obligee, otherwise, the officer shall oust all such
bank, you are not governed by the contract of deposit. It persons therefrom with the assistance, if necessary, of appropriate peace
is actually a contract of loan. Because it can only be a officers, and employing such means as may be reasonably necessary to retake
possession, and place the judgment obligee in possession of such property.
contract of deposit if the thing deposited is the very thing Any costs, damages, rents or profits awarded by the judgment shall be
you will get when you withdraw. satisfied in the same manner as a judgment for money. (13a)
So if you are the JD, the sheriff may run after the (d) Removal of improvements on property subject of execution. — When the property
subject of the execution contains improvements constructed or planted by
deposits you have in the bank. The writ of garnishment the judgment obligor or his agent, the officer shall not destroy, demolish or
will be delivered by the sheriff to the bank or to anyone remove said improvements except upon special order of the court, issued
who has in their possession money or property that is upon motion of the judgment obligee after the hearing and after the former
has failed to remove the same within a reasonable time fixed by the court.
due to JD. The bank is to divulge to the court how much (14a)
money the LD has and WON the JD has a deposit. (e) Delivery of personal property. — In judgment for the delivery of personal
This is not a violation on the Secrecy of Bank Deposit property, the officer shall take possession of the same and forthwith deliver
it to the party entitled thereto and satisfy any judgment for money as therein
Law. The bank is given only 5 days to make a report to provided. (8a)
the court. And within 10 days, they must deliver the
money of JD to satisfy the judgment obligation. EXECUTION FOR JUDGMENT OF SPECIFIC ACT
When the JD is required by the court to do a particular act.
2. Deliver to court Example reconveyance of property, delivery of deed of sale
or other document.
You have to comply with the order of the court. The sheriff
will go to you armed with the writ of execution.
This is a judgment for a specific act, you are required to do a

specific act:
1. to deliver a thing
2. to recovery a property whether real or personal
3. to deliver a document
-EFFECT OF REFUSAL TO OBEY

What if the defendant refused to obey, can he be cited in
contempt of court? Supposed the defendant is ordered by
the court to execute a deed of sale and to surrender his title
in favor of the JC, but he refused, can he be cited in
contempt of court?
NO. This is an execution of a judgment for a specific act. If
the JD refused to comply, he cannot be cited in contempt of
court because the judgment can be performed by another
person. The court may direct the other person to do it.

Kwin
Section 11.Execution of special judgments. — When a judgment requires the (j) Lettered gravestones;
performance of any act other than those mentioned in the two preceding (k) Monies, benefits, privileges, or annuities accruing or in any manner
sections, a certified copy of the judgment shall be attached to the writ of growing out of any life insurance;
execution and shall be served by the officer upon the party against whom (l) The right to receive legal support, or money or property obtained as such
the same is rendered, or upon any other person required thereby, or by law, support, or any pension or gratuity from the Government;
to obey the same, and such party or person may be punished for contempt if (m) Properties specially exempted by law.
he disobeys such judgment. (9a)
But no article or species of property mentioned in this section shall be exempt
from execution issued upon a judgment recovered for its price or upon a
EXECUTION OF SPECIAL JUDGMENT judgment of foreclosure of a mortgage thereon. (12a)
You are required by the court to do an act which only you can
do. It is an act that cannot be delegated to another person. PROPERTIES EXEMPT FROM EXECUTION
-EFFECT OF REFUSAL TO OBEY Section 14.Return of writ of execution. — The writ of execution shall be
If you will not do it, you will be cited in contempt of court. returnable to the court issuing it immediately after the judgment has been
satisfied in part or in full. If the judgment cannot be satisfied in full within
Example. A contract for your to perform in a concert. thirty (30) days after his receipt of the writ, the officer shall report to the
court and state the reason therefor. Such writ shall continue in effect during
the period within which the judgment may be enforced by motion. The
officer shall make a report to the court every thirty (30) days on the
Section 12.Effect of levy on execution as to third person. — The levy on execution
proceedings taken thereon until the judgment is satisfied in full, or its
shall create a lien in favor of the judgment obligee over the right, title and
effectivity expires. The returns or periodic reports shall set forth the whole
interest of the judgment obligor in such property at the time of the levy,
of the proceedings taken, and shall be filed with the court and copies thereof
subject to liens and encumbrances then existing. (16a)
promptly furnished the parties. (11a)
LEVY RETURN OF WRIT OF EXECUTION

Levy is the act of attaching the property of JD in preparation Enforcement of writ of execution is the responsibility or the
for the execution sale to satisfy the judgment sheriff. It must be returned to the court immediately after it
is satisfied.
EFFECT OF LEVY ON EXECUTION AS TO THIRD PERSONS If it is not satisfied, he must still return it in 30 days. And
The levy on execution made by the sheriff on the property of make a report to the court that issued it, that he was not
the JD creates a lien on the property in favor of the JC over able to satisfy the judgment or effectively enforce the writ.
the right, title and interest of the JD but subject to the liens
and encumbrances then existing. VALIDITY OF WRIT OF WRIT OF EXECUTION
Example. You have a JD. The sheriff levied his properties. The Such writ of execution shall continue to be valid until 5 years
rules provide that the act of levy creates a lien in favor of from issuance, because 5 years is the period where it may be
the JC. So that the LC acquires a lien only from the moment executed by motion.
of the levy. If it was already mortgaged to another or is Before, the writ must be satisfied with a period of 60 days
subject to encumbrance or lien, the latter will be respected. OW the writ of execution becomes functus officious. He will
The levy is inferior to the existing lien. have alias writ of execution after lapse of 60days.
But now, the life span is 5 years. But the new rules creates
more responsibility and work for sheriff. He must
Section 13.Property exempt from execution. — Except as otherwise expressly
provided by law, the following property, and no other, shall be exempt from immediately enforce it within 30 days. OW he will make a
execution: report to the court. The writ will still be valid. You will not
(a) The judgment obligor's family home as provided by law, or the homestead return to court. But he will have to make a periodic report
in which he resides, and land necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him in his trade, every 30 days.
employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden,
such as the judgment obligor may select necessarily used by him in his
ordinary occupation;
(d) His necessary clothing and articles for ordinary personal use, excluding
jewelry;
(e) Household furniture and utensils necessary for housekeeping, and used for
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;
(f) Provisions for individual or family use sufficient for four months;
(g) The professional libraries and equipment of judges, lawyers, physicians,
pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other
professionals, not exceeding three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding the total value of one
hundred thousand pesos owned by a fisherman and by the lawful use of
which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor for his
personal services within the four months preceding the levy as are necessary
for the support of his family;

Kwin
Section 15.Notice of sale of property on execution. — Before the sale of property on CONTENTS OF NOTICE
execution, notice thereof must be given as follows:
(a) In case of perishable property, by posting written notice of the time and
Notice shall specify place, date, date and exact time, not
place of the sale in three (3) public places, preferably in conspicuous areas of earlier in 9am, not later than 2pm.
the municipal or city hall, post office and public market in the municipality
or city where the sale is to take place, for such time as may be reasonable,
considering the character and condition of the property;
MANUAL DELIVERY, IF POSSIBLE
(b) In case of other personal property, by posting a similar notice in the three If the property is capable of manual delivery, it shall be
(3) public places above-mentioned for not less than five (5) days; delivered to the highest bidder
(c) In case of real property, by posting for twenty (20) days in the three (3)
public places abovementioned a similar notice particularly describing the
property and stating where the property is to be sold, and if the assessed
value of the property exceeds fifty thousand (P50,000.00) pesos, by Section 16.Proceedings where property claimed by third person. — If the property
publishing a copy of the notice once a week for two (2) consecutive weeks levied on is claimed by any person other than the judgment obligor or his
in one newspaper selected by raffle, whether in English, Filipino, or any agent, and such person makes an affidavit of his title thereto or right to the
major regional language published, edited and circulated or, in the absence possession thereof, stating the grounds of such right or title, and serves the
thereof, having general circulation in the province or city; same upon the officer making the levy and copy thereof, stating the grounds
(d) In all cases, written notice of the sale shall be given to the judgment of such right or tittle, and a serves the same upon the officer making the levy
obligor, at least three (3) days before the sale, except as provided in and a copy thereof upon the judgment obligee, the officer shall not be bound
paragraph (a) hereof where notice shall be given the same manner as to keep the property, unless such judgment obligee, on demand of the
personal service of pleadings and other papers as provided by section 6 of officer, files a bond approved by the court to indemnity the third-party
Rule 13. claimant in a sum not less than the value of the property levied on. In case of
The notice shall specify the place, date and exact time of the sale which disagreement as to such value, the same shall be determined by the court
should not be earlier than nine o'clock in the morning and not later than two issuing the writ of execution. No claim for damages for the taking or keeping
o'clock in the afternoon. The place of the sale may be agreed upon by the of the property may be enforced against the bond unless the action therefor
parties. In the absence of such agreement, the sale of the property or is filed within one hundred twenty (120) days from the date of the filing of
personal property not capable of manual delivery shall be held in the office the bond.
of the clerk of court of the Regional Trial Court or the Municipal Trial Court The officer shall not be liable for damages for the taking or keeping of the
which issued the writ of or which was designated by the appellate court. In property, to any third-party claimant if such bond is filed. Nothing herein
the case of personal property capable of manual delivery, the sale shall be contained shall prevent such claimant or any third person from vindicating
held in the place where the property is located. (18a) his claim to the property in a separate action, or prevent the judgment
obligee from claiming damages in the same or a separate action against a
third-party claimant who filed a frivolous or plainly spurious claim.
NOTICE OF SALE When the writ of execution is issued in favor of the Republic of the
After the sheriff had levied the property of JD, the next step Philippines, or any officer duly representing it, the filing of such bond shall
will be to sell these properties in public auction. Before that, not be required, and in case the sheriff or levying officer is sued for damages
as a result of the levy, he shall be represented by the Solicitor General and if
the sheriff must give notice of execution sale to all held liable therefor, the actual damages adjudged by the court shall be paid
interested parties particularly the judgment debtor. by the National Treasurer out of such funds as may be appropriated for the
1. PERISHABLE PROPERTY purpose. (17a)
-3 conspicuous places of municipality or city where
execution sale will be conducted THIRD PARTY CLAIM - TERCERIA
a. municipal building If during the execution sale, the property was claimed by a
b. public plaza third person, the third party must execute an affidavit and
c. public market establish the ownership of the property that was levied
d. hall of justice upon by the sheriff.
-specify date and time when the execution sale will be The sheriff must inform immediately the JC and tell him that
conducted there is a third party clamant and that he will not proceed
-need not be at least 3 days. Could be immediately with the execution sale, OW he will be liable.
thereafter, considering the character and condition of the But there is a way that the sheriff can proceed with the sale.
property Require the JC to put up a bond in an amount equal to the
2. OTHER PERSONAL PROPERTY value of the property levied.
-in 3 conspicuous places If JC will put up a bond, the bond will answer for the damages
-at least 5 days before execution sale adjudged against the sheriff. But the bond will only be
3. REAL PROPERTY answerable for the claim if the 3rd p filed the claim within
-at least 20 days before the sale 120 days. OW the bond is excused from any liability.
-if the value of the property is more than 50k, it is not This is what we call a TERCERIA, a third party claim. 3rd p must
enough that you post in 3 conspicuous places, it must also file a reinvindicatory claim to recover the property from the
be published in a newspaper of general circulation sheriff.
4. IN ALL OTHER CASES
-written notice shall be given to JD at least 3 days before INDEPENDENT SEPARATE ACTION
the scheduled sale The right of the third party claimant should not be decided in
rd
the action where the 3 party claims are presented. But
should be decided in an independent or separate action
which the court should direct the claimant to file.

Kwin
Section 17.Penalty for selling without notice, or removing or defacing notice. — An HOW PROPERTY IS SOLD
officer selling without the notice prescribed by section 15 of this Rule shall
be liable to pay punitive damages in the amount of five thousand
-WHO CONDUCTS
(P5,000.00) pesos to any person injured thereby, in addition to his actual 1. JD – IF PRESENT
damages, both to be recovered by motion in the same action; and a person 2. SHERIFF
willfully removing or defacing the notice posted, if done before the sale, or
before the satisfaction of the judgment if it be satisfied before the sale, shall
The sheriff is the one who will conduct the execution sale
be liable to pay five thousand (P5,000.00) pesos to any person injured by and he will direct the manner and the order of sale.
reason thereof, in addition to his actual damages, to be recovered by motion But if the JD is around, and present in the execution sale,
in the same action. (19a)
the JD will be the one to direct the manner of the sale. He
may decide which is to be executed first, real or personal
PENALTY FOR SELLING WITHOUT NOTICE
property.
The sheriff is required to post notice of the execution sale in 3
conspicuous places or to require the publication of the
-WHICH PROPERTY IS SOLD
notice in a newspaper of general circulation if the property
-AS MUCH AS WHAT IS REQUIRED
to be sold is a property worth more than 50k.
If there are several properties sold, the sheriff shall only sell
What if the sheriff proceeded with the execution sale without
as much as what is required for the judgment, OW it is
notice?
abuse of authority on the part of the sheriff.
The sheriff will be answerable to the JD. He will be ordered
-START WITH PERSONAL PROPERTY
to pay a fine or penalty for conducting execution sale
If the sheriff will levy several properties, he should start
without notice.
with the personal properties before the real properties. But
if the judgment debtor is present, he will decide.
A sale without required notice is considered null and void
Once the amount specified in the judgment is already met,
execution sale
we stop the sale.
PENALTY FOR REMOVING OR DEFACING NOTICE Section 20.Refusal of purchaser to pay. — If a purchaser refuses to pay the
If he posted the notices but were removed by someone? amount bid by him for property struck off to him at a sale under execution,
Anyone who defaced the notice of execution sale from the the officer may again sell the property to the highest bidder and shall not be
responsible for any loss occasioned thereby; but the court may order the
place it is posted will be liable for a fine of 5k. refusing purchaser to pay into the court the amount of such loss, with costs,
and may punish him for contempt if he disobeys the order. The amount of
such payment shall be for the benefit of the person entitled to the proceeds
Section 18.No sale if judgment and costs paid. — At any time before the sale of of the execution, unless the execution has been fully satisfied, in which
property on execution, the judgment obligor may prevent the sale by paying event such proceeds shall be for the benefit of the judgment obligor. The
the amount required by the execution and the costs that have been incurred officer may thereafter reject any subsequent bid of such purchaser who
therein. (20a) refuses to pay. (22a)
NO SALE IF JUDGMENT AND COSTS PAID REFUSAL OF THE PURCHASER TO PAY

How do you prevent execution sale? If during the execution sale the highest bidder will not pay
Pay the judgment debt. what he bidded?
The sheriff will conduct a second round of execution sale.
Section 19.How property sold on execution; who may direct manner and order of sale. — The difference will be paid by the bidder who refused to
All sales of property under execution must be made at public auction, to the pay.
highest bidder, to start at the exact time fixed in the notice. After sufficient
property has been sold to satisfy the execution, no more shall be sold and
any excess property or proceeds of the sale shall be promptly delivered to Section 21.Judgment obligee as purchaser. — When the purchaser is the judgment
the judgment obligor or his authorized representative, unless otherwise obligee, and no third-party claim has been filed, he need not pay the amount
directed by the judgment or order of the court. When the sale is of real of the bid if it does not exceed the amount of his judgment. If it does, he shall
property, consisting of several known lots, they must be sold separately; or, pay only the excess. (23a)
when a portion of such real property is claimed by a third person, he may
require it to be sold separately. When the sale is of personal property JC AS PURCHASER
capable of manual delivery, it must be sold within view of those attending
the same and in such parcels as are likely to bring the highest price. The Can the JC participate in the bidding?
judgment obligor, if present at the sale, may direct the order in which Yes. If he is the HB, he need not pay cash.
property, real or personal shall be sold, when such property consists of However, the JC will have to pay the amount he bid if the
several known lots or parcels which can be sold to advantage separately.
Neither the officer conducting the execution sale, nor his deputies, can property is a subject of a third party claim by another. And
become a purchaser, nor be interested directly or indirectly in any purchase JC put up a bond.
at such sale. (21a)

Kwin
Section 22.Adjournment of sale. — By written consent of the judgment obligor CONVEYANCE TO PURCHASER OF PERSONAL PROPERTY NOT
and obligee, or their duly authorized representatives, the officer may adjourn
the sale to any date and time agreed upon by them. Without such
CAPABLE OF MANUAL DELIVERY
agreement, he may adjourn the sale from day to day if it becomes necessary -CERTIFICATE OF SALE
to do so for lack of time to complete the sale on the day fixed in the notice or If the property sold is a real property, the sheriff will
the day to which it was adjourned. (24a)
execute a certificate of sale with a particular description of
land sold, price of sale and right of redemption of JD.
ADJOURNMENT OF SALE
-RIGHT OF REDEMPTION
When the execution sale will start, the sheriff must finish it
In sale of real property, the JD has the right to redeem
on the same day as much as possible.
within 1 year from the date of registration of the certificate
If not, the sheriff may adjourn from day to day.
of sale in the register of deeds. You have to have it
It cannot be transferred on another day without the mutual
annotated in the back of the title of the property
agreement of JD and JC. OW the sale is null and void
-REGISTRATION OF CERTIFICATE OF SALE
Section 23.Conveyance to purchaser of personal property capable of manual delivery. —
The HB has the duty to register the certificate of sale, not
When the purchaser of any personal property, capable of manual delivery, the sheriff. Because if you will not do that, the redemption
pays the purchase price, the officer making the sale must deliver the period will not start to run.
property to the purchaser and, if desired, execute and deliver to him a
certificate of sale. The sale conveys to the purchaser all the rights which the
judgment obligor had in such property as of the date of the levy on MOTION TO QUASH EXECUTION SALE
execution or preliminary attachment. (25a) If during the execution sale, your property was sold for a very
small amount, can you nullify the sale? Can you file a motion
CONVEYANCE TO PURCHASER OF PERSONAL PROPERTY to quash the execution sale?
CAPABLE OF MANUAL DELIVERY It depends if the property sold is a personal property or
In the execution sale, when the property sold is a personal not.
property capable of manual delivery, whoever submits the If it is a PERSONAL PROPERTY, YES.
highest bid will be awarded the property. And the property If it is a REAL PROPERTY, NO.
will be delivered immediately to you.
Because in personal property, there is no right of redemption.
-CERTIFICATE OF SALE In real property, you have right of redemption. So the lower
The execution of the certificate of sale transfers the the price, the more favorable to the JD,
ownership of the property from JD to the buyer. But the
certificate of the execution sale will be signed by he sheriff Section 26.Certificate of sale where property claimed by third person. — When a
not the JD. property sold by virtue of a writ of execution has been claimed by a third
person, the certificate of sale to be issued by the sheriff pursuant to sections
23, 24 and 25 of this Rule shall make express mention of the existence of
Section 24.Conveyance to purchaser of personal property not capable of manual delivery. such third-party claim. (28a)
— When the purchaser of any personal property, not capable of manual
delivery, pays the purchase price, the officer making the sale must execute
and deliver to the purchaser a certificate of sale. Such certificate conveys to Section 27.Who may redeem real property so sold. — Real property sold as
the purchaser all the rights which the judgment obligor had in such provided in the last preceding section, or any part thereof sold separately,
property as of the date of the levy on execution or preliminary attachment. may be redeemed in the manner hereinafter provided, by the following
(26a) persons:
(a) The judgment obligor; or his successor in interest in the whole or any part
of the property;
Section 25.Conveyance of real property; certificate thereof given to purchaser and filed (b) A creditor having a lien by virtue of an attachment, judgment or mortgage
with registry of deeds. — Upon a sale of real property, the officer must give to on the property sold, or on some part thereof, subsequent to the lien under
the purchaser a certificate of sale containing: which the property was sold. Such redeeming creditor is termed a
(a) A particular description of the real property sold; redemptioner. (29a)
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires one (1) year from the WHO MAY REDEEM REAL PROPERTY SOLD
date of the registration of the certificate of sale. Who can redeem the property from the buyer of the property
Such certificate must be registered in the registry of deeds of the place where
the property is situated. (27 a)
in the execution sale?
1. JD or successors in interests
2. Redemptioners
Who are these redemptioners?
These are the people who acquired a lien on the property
sold subsequent to the levy by virtue of attachment by the
court are considered redemptioners. They have the right to
redeem the property from the purchaser.
Levy creates a lien on the property but subject to the liens
existing therein. The buyer acquires ownership of the
property, retroacting on the time of the levy.

Kwin
Section 28.Time and manner of, and amounts payable on, successive redemptions; notice Section 29.Effect of redemption by judgment obligor, and a certificate to be delivered and
to be given and filed. — The judgment obligor, or redemptioner, may redeem recorded thereupon; to whom payments on redemption made. — If the judgment
the property from the purchaser, at any time within one (1) year from the obligor redeems he must make the same payments as are required to effect a
date of the registration of the certificate of sale, by paying the purchaser the redemption by a redemptioner, whereupon, no further redemption shall be
amount of his purchase, with the per centum per month interest thereon in allowed and he is restored to his estate. The person to whom the redemption
addition, up to the time of redemption, together with the amount of any payment is made must execute and deliver to him a certificate of redemption
assessments or taxes which the purchaser may have paid thereon after acknowledged before a notary public or other officer authorized to take
purchase, and interest on such last named amount at the same rate; and if acknowledgments of conveyances of real property. Such certificate must be
the purchaser be also a creditor having a prior lien to that of the filed and recorded in the registry of deeds of the place in which the property
redemptioner, other than the judgment under which such purchase was is situated and the registrar of deeds must note the record thereof on the
made, the amount of such other lien, with interest. margin of the record of the certificate of sale. The payments mentioned in
Property so redeemed may again be redeemed within sixty (60) days after the this and the last preceding sections may be made to the purchaser or
last redemption upon payment of the sum paid on the last redemption, with redemptioner, or for him to the officer who made the sale. (31a)
two per centum thereon in addition and the amount of any assessments or
taxes which the last redemptioner may have paid thereon after redemption Section 30.Proof required of redemptioner. — A redemptioner must produce to
by him, with interest on such last named amount, and in addition, the the officer, or person from whom he seeks to redeem, and serve with his
amount of any liens held by said last redemptioner prior to his own, with notice to the officer a copy of the judgment or final order under which he
interest. The property may be again, and as often as a redemptioner is so claims the right to redeem, certified by the clerk of the court wherein the
disposed, redeemed from any previous redemptioner within sixty (60) days judgment or final order is entered, or, if he redeems upon a mortgage or
after the last redemption, on paying the sum paid on the last previous other lien, a memorandum of the record thereof, certified by the registrar of
redemption, with two per centum thereon in addition, and the amounts of any deeds, or an original or certified copy of any assignment necessary to
assessments or taxes which the last previous redemptioner paid after the establish his claim; and an affidavit executed by him or his agent, showing
redemption thereon, with interest thereon, and the amount of any liens held the amount then actually due on the lien. (32a)
by the last redemptioner prior to his own, with interest.
Written notice of any redemption must be given to the officer who made the
sale and a duplicate filed with the registry of deeds of the place, and if any PROOF REQUIRED OF REDEMPTIONER
assessments or taxes are paid by the redemptioner or if he has or acquires When you claim to be a redemptioner, you can only redeem
any lien other than that upon which the redemption was made, notice
thereof must in like manner be given to the officer and filed with the registry
the property from the purchaser if you can prove to the
of deeds; if such notice be not filed, the property may be redeemed without sheriff the right as redemptioner.
paying such assessments, taxes, or liens. (30a) So once you are able to show to the sheriff that you have
acquired lien to property by virtue of writ of attachment or
PERIOD TO REDEEM order of the court, he will allow you to redeem the property.
Period to redeem is 1 year from the registration of certificate It stops the moment the JD exercises his right of redemption.
of sale.
Redemptioner may redeem the property from a another Section 31.Manner of using premises pending redemption; waste restrained. — Until
redemptioner within 60 days from the first redemption, the expiration of the time allowed for redemption, the court may, as in other
proper cases, restrain the commission of waste on the property by
provided it is still within the e1 year period from injunction, on the application of the purchaser or the judgment obligee, with
registration. or without notice; but it is not waste for a person in possession of the
But once the JD exercises his right of redemption from property at the time of the sale, or entitled to possession afterwards, during
the period allowed for redemption, to continue to use it in the same manner
anyone one the redemptioner, the redemption stops. IOW in which it was previously used, or to use it in the ordinary course of
the redemptioner cannot redeem the property from the JD husbandry; or to make the necessary repairs to buildings thereon while he
if the latter has exercised his right of redemption. occupies the property. (33a)
RIGHT TO REDEEM IS TRANSFERABLE

The right of the JD to redeem his property is a right that is
transferable. If he transferred the right for a consideration,
that transferee shall have the right of the JD, and if he
redeems it from any of the redemptioner, the subsequent
redemption will already stop.
AMOUNT OR REDEMPTION PRICE

Any one of the redemptioner may redeem the property from
the purchaser.
How much are they going to pay?
Whatever the amount the purchaser paid plus 1% per
month.
So if the parcel of land was sold in the execution sale for
1m plus 50k (1mX10%X5) plus cost of the sale. You have to
reimburse all the necessary expenses and cost paid by the
purchaser
The amount to be paid in the second redemption includes 2%
interest per month.

Kwin
Section 32.Rents, earnings and income of property pending redemption. — The Section 34.Recovery of price if sale not effective; revival of judgment. — If the
purchaser or a redemptioner shall not be entitled to receive the rents, purchaser of real property sold on execution, or his successor in interest,
earnings and income of the property sold on execution, or the value of the fails to recover the possession thereof, or is evicted therefrom, in
use and occupation thereof when such property is in the possession of a consequence of irregularities in the proceedings concerning the sale, or
tenant. All rents, earnings and income derived from the property pending because the judgment has been reversed or set aside, or because the property
redemption shall belong to the judgment obligor until the expiration of his sold was exempt from execution, or because a third person has vindicated
period of redemption. (34a) his claim to the property, he may on motion in the same action or in a
separate action recover from the judgment obligee the price paid, with
interest, or so much thereof as has not been delivered to the judgment
RENTS, EARNINGS AND INCOME OF PROPERTY PENDING obligor, or he may, on motion, have the original judgment revived in his
REDEMPTION name for the whole price with interest, or so much thereof as has been
During the pendency of the period to redeem, who will enjoy delivered to the judgment obligor. The judgment so revived shall have the
same force and effect as an original judgment would have as of the date of
the property to redeem? the revival and no more. (36a)
It is still the JD, not the purchaser who will enjoy the
property. Because in the mean time, before JD can exercise
Section 35.Right to contribution or reimbursement. — When property liable to an
right of redemption, he may enjoy the use and fruits of the execution against several persons is sold thereon, and more than a due
property. proportion of the judgment is satisfied out of the proceeds of the sale of the
property of one of them, or one of them pays, without a sale, more than his
proportion, he may compel a contribution from the others; and when a
HIGHEST BIDDER HAS BETTER RIGHT OVER BUYER FROM JD judgment is upon an obligation of one of them, as security for another, and
If the JD surreptitiously sold the land, who has the better the surety pays the amount, or any part thereof, either by sale of his property
right? The buyer or the highest bidder? or before sale, he may compel repayment from the principal. (37a)
The highest bidder because he becomes the owner not
from the time of execution sale, but from the moment of
Section 36.Examination of judgment obligor when judgment unsatisfied. — When the
the levy. return of a writ of execution issued against property of a judgment obligor,
or any one of several obligors in the same judgment, shows that the
HIGHEST BIDDER – RIGHT FOR PROTECTION AND judgment remains unsatisfied, in whole or in part, the judgment obligee, at
any time after such return is made, shall be entitled to an order from the
PRESERVATION OF THE PROPERTY court which rendered the said judgment, requiring such judgment obligor to
All rents and earnings shall inure to the benefit of JD. The appear and be examined concerning his property and income before such
purchaser in the mean time has the right to ask from the court or before a commissioner appointed by it at a specified time and place;
and proceedings may thereupon be had for the application of the property
court an order for protection or preservation of the and income of the judgment obligor towards the satisfaction of the
property. The purchaser has an interest of the property. judgment. But no judgment obligor shall be so required to appear before a
court or commissioner outside the province or city in which such obligor
resides or is found. (38a)
Section 33.Deed and possession to be given at expiration of redemption period; by whom
executed or given. — If no redemption be made within one (1) year from the
date of the registration of the certificate of sale, the purchaser is entitled to a
conveyance and possession of the property; or, if so redeemed whenever Section 37.Examination of obligor of judgment obligor. — When the return of a
sixty (60) days have elapsed and no other redemption has been made, and writ of execution against the property of a judgment obligor shows that the
notice thereof given, and the time for redemption has expired, the last judgment remain unsatisfied, in whole or in part, and upon proof to the
redemptioner is entitled to the conveyance and possession; but in all cases satisfaction of the court which issued the writ, that a person, corporation, or
the judgment obligor shall have the entire period of one (1) year from the other juridical entity has property of such judgment obligor or is indebted to
date of the registration of the sale to redeem the property. The deed shall be him, the court may, by an order, require such person, corporation, or other
executed by the officer making the sale or by his successor in office, and in juridical entity, or any officer, or member thereof, to appear before the court
the latter case shall have the same validity as though the officer making the or a commissioner appointed by it, at a time and place within the province
sale had continued in office and executed it. or city where such debtor resides or is found, and be examined concerning
Upon the expiration of the right of redemption, the purchaser or the same. The service of the order shall bind all credits due the judgment
redemptioner shall be substituted to and acquire all the rights, title, interest obligor and all money and property of the judgment obligor in the
and claim of the judgment obligor to the property as of the time of the levy. possession or in the control of such person corporation, or juridical entity
The possession of the property shall be given to the purchaser or last from the time of service; and the court may also require notice of such
redemptioner by the same officer unless a third party adversely to the proceedings to be given to any party to the action in such manner as it may
judgment obligor. (35a) deem proper. (39a)
Section 38.Enforcement of attendance and conduct of examination. — A party or

other person may be compelled, by an order or subpoena, to attend before
the court or commissioner to testify as provided in the two preceding
sections, and upon failure to obey such order or subpoena or to be sworn, or
to answer as a witness or to subscribe his deposition, may be punished for
contempt as in other cases. Examinations shall not be unduly prolonged, but
the proceedings may be adjourned from time to time, until they are
completed. If the examination is before a commissioner, he must take it in
writing and certify it to the court. All examinations and answers before a
court commissioner must be under oath, and when a corporation or other
juridical entity answers, it must be on the oath of an authorized officer or
agent thereof. (40a)

Kwin
Section 39.Obligor may pay execution against obligee. — After a writ of execution Section 46.When principal bound by judgment against surety. — When a judgment is
against property has been issued, a person indebted to the judgment obligor rendered against a party who stands as surety for another, the latter is also
may pay to the sheriff holding the writ of execution the amount of his debt bound from the time that he has notice of the action or proceeding, and an
or so much thereof as may be necessary to satisfy the judgment, in the opportunity at the surety's request to join in the defense. (48a)
manner prescribed in section 9 of this Rule, and the sheriff's receipt shall be
a sufficient discharge for the amount so paid or directed to be credited by
the judgment obligee on the execution. (41a)
Section 47.Effect of judgments or final orders. — The effect of a judgment or final
order rendered by a court of the Philippines, having jurisdiction to
pronounce the judgment or final order, may be as follows:
Section 40.Order for application of property and income to satisfaction of judgment. — (a) In case of a judgment or final order against a specific thing, or in respect to
The court may order any property of the judgment obligor, or money due the probate of a will, or the administration of the estate of a deceased
him, not exempt from execution, in the hands of either himself or another person, or in respect to the personal, political, or legal condition or status of
person, or of a corporation or other juridical entity, to be applied to the a particular person or his relationship to another, the judgment or final order
satisfaction of the judgment, subject to any prior rights over such property. is conclusive upon the title to the thing, the will or administration or the
If, upon investigation of his current income and expenses, it appears that the condition, status or relationship of the person, however, the probate of a will
earnings of the judgment obligor for his personal services are more than or granting of letters of administration shall only be prima facie evidence of
necessary for the support of his family, the court may order that he pay the the death of the testator or intestate;
judgment in fixed monthly installments, and upon his failure to pay any (b) In other cases, the judgment or final order is, with respect to the matter
such installment when due without good excuse, may punish him for directly adjudged or as to any other matter that could have been missed in
indirect contempt. (42a) relation thereto, conclusive between the parties and their successors in
interest, by title subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the same title and in the
Section 41.Appointment of receiver. — The court may appoint a receiver of the same capacity; and
property of the judgment obligor; and it may also forbid a transfer or other (c) In any other litigation between the same parties or their successors in
disposition of, or any interference with, the property of the judgment obligor interest, that only is deemed to have been adjudged in a former judgment or
not exempt from execution. (43a) final order which appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary thereto. (49a)
Section 42.Sale of ascertainable interest of judgment obligor in real estate. — If it

appears that the judgment obligor has an interest in real estate in the place Section 48.Effect of foreign judgments or final orders. — The effect of a judgment or
in which proceedings are had, as mortgagor or mortgagee or otherwise, and final order of a tribunal of a foreign country, having jurisdiction to render
his interest therein can be ascertained without controversy the receiver may the judgment or final order is as follows:
be ordered to sell and convey such real estate or the interest of the obligor (a) In case of a judgment or final order upon a specific thing, the judgment or
therein; and such sale shall be conducted in all respects in the same manner final order, is conclusive upon the title to the thing, and
as is provided for the sale of real state upon execution, and the proceedings (b) In case of a judgment or final order against a person, the judgment or final
thereon shall be approved by the court before the execution of the deed. order is presumptive evidence of a right as between the parties and their
(34a) successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a
want of jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact. (50a)
Section 43.Proceedings when indebtedness denied or another person claims the property.
— If it appears that a person or corporation, alleged to have property of the
judgment obligor or to be indebted to him, claims an interest in the property
adverse to him or denied the debt, the court may authorize, by an order
made to that effect, the judgment obligee to institute an action against such
person or corporation for the recovery of such interest or debt, forbid a
transfer or other disposition of such interest or debt within one hundred
twenty (120) days from notice of the order, and may punish disobedience of
such order as for contempt. Such order may be modified or vacated at any
time by the court which issued it, or by the court in which the action is
brought, upon such terms as may be just. (45a)
Section 44.Entry of satisfaction of judgment by clerk of court. — Satisfaction of a

judgment shall be entered by the clerk of court in the court docket, and in
the execution book, upon the return of a writ of execution showing the full
satisfaction of the judgment, or upon the filing of an admission to the
satisfaction of the judgment executed and acknowledged in the same
manner as a conveyance of real property by the judgment obligee or by his
counsel unless a revocation of his authority is filed, or upon the endorsement
of such admission by the judgment obligee or his counsel, on the face of the
record of the judgment. (46a)
Section 45.Entry of satisfaction with or without admission. — Whenever a

judgment is satisfied in fact, or otherwise than upon an execution on
demand of the judgment obligor, the judgment obligee or his counsel must
execute and acknowledge, or indorse an admission of the satisfaction as
provided in the last preceding section, and after notice and upon motion the
court may order either the judgment obligee or his counsel to do so, or may
order the entry of satisfaction to be made without such admission. (47a)

Kwin
December 14, 2011 2. APPEAL BY RECORDS ON APPEAL
The second mode is appeal by records on appeal. This is
RULE 40 APPEALS required only in special proceedings cases and those that
Appeals involve multiple and separate appeals. Example of special
RULE 40
proceedings case is settlement of the estate of eh deceased
Appeal From Municipal Trial Courts to the Regional Trial Courts person
Section 1.Where to appeal. — An appeal from a judgment or final order of a -NOTICE OF APPEAL PLUS RECORDS ON APPEAL
Municipal Trial Court may be taken to the Regional Trial Court exercising
jurisdiction over the area to which the former pertains. The title of the case
This also involves notice of appeal. You file notice of appeal
shall remain as it was in the court of origin, but the party appealing the case plus records on appeal.
shall be further referred to as the appellant and the adverse party as the Here you have to compile the entire records of the case
appellee. (a)
and present all the pleadings, motions, orders and judgment
from the court of origin in chronological order. That is why it
Section 2.When to appeal. — An appeal may be taken within fifteen (15) days
after notice to the appellant of the judgment or final order appealed from. will take some time to do it. That is why the period is longer.
Where a record on appeal is required, the appellant shall file a notice of
appeal and a record on appeal within thirty (30) days after notice of the
judgment or final order.
-PERIOD TO APPEAL
The period of appeal shall be interrupted by a timely motion for new trial or The mode of appeal is by records on appeal and the period
reconsideration. No motion for extension of time to file a motion for new to appeal is 30 days.
trial or reconsideration shall be allowed. (n)
Can you extend the period to appeal?
In the case of an ordinary appeal which is appeal by notice
Section 3.How to appeal. — The appeal is taken by filing a notice of appeal with
the court that rendered the judgment or final order appealed from. The of appeal, there is no extension of time.
notice of appeal shall indicate the parties to the appeal, the judgment or final In appeal by records on appeal you may ask for extension
order or part thereof appealed from, and state the material dates showing
the timeliness of the appeal.
of another 30 days. Provided that you pay for the docket
A record on appeal shall be required only in special proceedings and in other fee.
cases of multiple or separate appeals.
The form and contents of the record on appeal shall be as provided in section
6, Rule 41.
PERIODS OF APPEAL
Copies of the notice of appeal, and the record on appeal where required, shall 1. 15 days if appeal is by mere notice of appeal
be served on the adverse party. (n) 3. 30 days if appeal is by records on appeal
MODES OF APPEAL FROM MTC TO RTC Section 4.Perfection of appeal; effect thereof. — The perfection of the appeal and
1. MERE NOTICE OF APPEAL the effect thereof shall be governed by the provisions of section 9, Rule 41.
(n)
2. RECORDS ON APPEAL
Section 5.Appellate court docket and other lawful fees. — Within the period for
1. APPEAL BY NOTICE OF APPEAL taking an appeal, the appellant shall pay to the clerk of the court which
There are two modes of appeal from MTR to RTC. The first rendered the judgment or final order appealed from the full amount of the
appellate court docket and other lawful fees. Proof of payment thereof shall
mode is notice of appeal, which we use in ordinary civil be transmitted to the appellate court together with the original record or
action. You simply file a one page of notice. You file it in the record on appeal, as the case may be. (n)
MTC, which has rendered the decision. DOCKET FEE
When you file an appeal you have to pay the docket fee.
-MATERIAL DATA RULE -WHERE TO PAY: COURT OF ORIGIN
It is very important for you to state the material dates. It shall be paid in the court of origin or the court that
When you appeal the ruling from lower court to higher rendered the judgment that you are appealing. This is a
court, you have to state the material dates departure from the old rule where the docket fee is to be
a. Date when you received the decision paid in the appellate court. Before, you wait for the records
b. Date when you appealed the decision to be received in the RTC from MTC, then RTC will order the
It will determine whether you have filed the appeal on appellant to pay the docket fee.
time. Remember, you are given only a certain period of time In the new rules, when you file the notice of appeal, you
to file an appeal. In the case of decisions of MTC, the period have to pay at the same time the docket fee.
to appeal is 15 days, which is for ordinary appeal, which is -WHEN TO PAY: WITHIN 15 DAY OPERIOD TO APPEAL
done by mere notice of appeal. So from the moment you have received the decision that is
adverse to you, you have 15 days to appeal by notice of
-PERIOD TO APPEAL appeal. If on the 5th day, you have filed your notice of
15 days, non extendable. appeal, can you still pay the docket fee after you have filed
the notice of appeal? YES. Because the 15 day period has not
yet expired.

Kwin
Section 6.Duty of the clerk of court. — Within fifteen (15) days from the -PLEADINGS FILED: APPELLANT’S MEMORANDUM,
perfection of the appeal, the clerk of court or the branch clerk of court of the
lower court shall transmit the original record or the record on appeal,
APPELLEE’S MEMORANDUM
together with the transcripts and exhibits, which he shall certify as The pleadings you file on an appeal from RTC to CA are called
complete, to the proper Regional Trial Court. A copy of his letter of appellant’s brief and defendant’s brief.
transmittal of the records to the appellate court shall be furnished the
parties. (n)
APPELLANT’S MEMORANDUM
While pleadings filed for the decisions from MTC to RTC is
DUTY OF CLERK OF COURT OF MTC ON APPEAL FROM MTC called appellant’s memorandum. He has 15 days to file it.
TO RTC It contains specific assignment of errors.
-FORWARD THE RECORDS OF THE CASE TO RTC APPELLEE’S MEMORANDUM
Once you have filed and paid the docket fee, the clerk of Once the appellant files appellant’s memorandum, he must
court of the MTC shall immediately complete the records of also give a copy to the appellee. The appellee must also file
the case and forward it with the RTC. appellee’s memorandum in 15 days.
-WHICH RTC TO APPEAL So again the procedure is that one the records of the case
Which RTC? are complete in the RTC, the clerk of court in the RTC will
Example. if the decision was the decision of MTC Daan notify all the parties that the records are already there. And
Banatyan Cebu? Will you appeal it to RTC in Capitol? in the same notification, the court will order the appellant to
No. the rules provides that you appeal in the RTC exercising file his appellant’s memorandum within 15 days, copy
jurisdiction over the area where the MTC belongs. furnished to the appellee.
The MTC of Daan Bantayan belongs in RTC Bogo; all towns Upon receipt of the appellant’s memorandum, the appellee
in the 4th congressional district of Cebu. RTC Cebu has is given 15 days also to file his appellee’s memorandum.
jurisdiction of MTC of the entire Cebu, Talisay, Naga and San
Fernando. EFFECT OF FAILURE TO FILE APPELLANT’S MEMORANDUM:
If it is the decision of the MTC Mandaue, you appeal it to DISMISSAL OF THE CASE
RTC Mandaue. What is thee effect of the failure to file appellant’s
RTC’s have specific area of jurisdiction. Once notice of memorandum?
appeal is filed and docket fee is paid, then MTC has to That is a ground for the dismissal of appeal. This is
forward the entire records of the case of RTC mandatory.
Section 7.Procedure in the Regional Trial Court. — EFFECT OF FAILURE TO FILE APPELLEE’S MEMORANDUM:
(a) Upon receipt of the complete record or the record on appeal, the clerk of DISMISSAL OF THE CASE
court of the Regional Trial Court shall notify the parties of such fact.
(b) Within fifteen (15) days from such notice, it shall be the duty of the
If there is failure of filing appellee’s memorandum, it does
appellant to submit a memorandum which shall briefly discuss the errors not have any effect at all. The filing of appellee’s
imputed to the lower court, a copy of which shall be furnished by him to the memorandum is not mandatory.
adverse party. Within fifteen (15) days from receipt of the appellant's
memorandum, the appellee may file his memorandum. Failure of the
So the filing of appellee’s memorandum is optional.
appellant to file a memorandum shall be a ground for dismissal of the appeal.
(c) Upon the filing of the memorandum of the appellee, or the expiration of
the period to do so, the case shall be considered submitted for decision. The
Regional Trial Court shall decide the case on the basis of the entire record of
the proceedings had in the court of original and such memoranda as are
filed. (n)
PROCEDURE IN RTC
-DUTY OF CLERK OF COURT OF RTC ON APPEAL FROM MTC
TO RTC
Upon the receipt of the records, the clerk of court of RTC
should check the records if they are complete.
If some records are missing, he should communicate with the
clerk of court of MTC to complete the records of the case.
Once complete, he should inform the parties that the records
re in the possession of RTC. That means the appellant should
file his memorandum on appeal.

Kwin
Section 8.Appeal from orders dismissing case without trial; lack of jurisdiction. — If an RULE 41 APPEAL FROM RTC
appeal is taken from an order of the lower court dismissing the case without RULE 41
a trial on the merits, the Regional Trial Court may affirm or reverse it, as the Appeal From The Regional Trial Courts
case may be. In case of affirmance and the ground of dismissal is lack of Section 1.Subject of appeal. — An appeal may be taken from a judgment or final
jurisdiction over the subject matter, the Regional Trial Court, if it has order that completely disposes of the case, or of a particular matter therein
jurisdiction thereover, shall try the case on the merits as if the case was when declared by these Rules to be appealable.
originally filed with it. In case of reversal, the case shall be remanded for No appeal may be taken from:
further proceedings. (a) An order denying a motion for new trial or reconsideration;
If the case was tried on the merits by the lower court without jurisdiction (b) An order denying a petition for relief or any similar motion seeking relief
over the subject matter, the Regional Trial Court on appeal shall not dismiss from judgment;
the case if it has original jurisdiction thereof, but shall decide the case in (c) An interlocutory order;
accordance with the preceding section, without prejudice to the admission (d) An order disallowing or dismissing an appeal;
of amended pleadings and additional evidence in the interest of justice. (n) (e) An order denying a motion to set aside a judgment by consent, confession
or compromise on the ground of fraud, mistake or duress, or any other
APPEAL FROM ORDERS DISMISSING CASE WITHOUT TRIAL ground vitiating consent;
(f) An order of execution;
-ORDER OF DISMISSL: FINAL AND APPEALABLE ORDER (g) A judgment or final order for or against one or more of several parties or in
If the decision of the MTC that was appealed to RTC was a separate claims, counterclaims, cross-claims and third-party complaints,
decision that dismisses the case without hearing? Example, while the main case is pending, unless the court allows an appeal therefrom;
and
lack of jurisdiction. (h) An order dismissing an action without prejudice.
You appeal the order of dismissal by MTC to RTC. In all the above instances where the judgment or final order is not appealable,
Remember, an order of dismissal is a final and appealable the aggrieved party may file an appropriate special civil action under Rule
65. (n)
order. It is tantamount to a judgment on the merits.
APPEALABLE ORDERS OR DECISIONS OF RTC
-HOW RTC WILL RESOLVE THE APPEAL
What are the orders or decision of RTC that are appealable to
How will RTC resolve that appeal?
CA?
It depends.
Only final orders or decisions of the RTC that finally
a. CORRECT DISMISSAL – ASSUME JURISDICTION
disposes of the case are appealable to CA. OW if it did not
If RTC finds that the MTC is correct in dismissing the case
dispose of the case, it is merely an interlocutory order; and
because it has no jurisdiction and it is clear that the
that order or decision is not yet appealable.
jurisdiction belongs to the RTC, the RTC should assume
Sec 1 of rule 41 enumerates the orders or decisions of RTC
jurisdiction as if the case was filed before him.
that cannot be appealed to CA.
-NEED NOT PAY DOCKET FEE AGAIN.
1. An order denying a MNT or MR
This will save you from paying the docket fee.
Your only remedy is to wait for the judgment, then you
When the RTC assumes jurisdiction, you need not pay
appeal the judgment itself, and not from the order denying
again the docket fee. It is as if the case was filed directly
it. here, you file a notice of appeal
with RTC
2. An order denying a petition for relief from judgment
b. WRONG DISMISSAL – REMAND CASE BACK TO MTC
3. An interlocutory order
If the RTC finds that the MTC is wrong in dismissing the
4. An order disallowing or dismissing an appeal
case because it has jurisdiction to try the case, RTC will
5. An order denying a motion to set aside a judgment by
remand the case to the MTC with a directive that the MTC
consent, confession or compromise on the ground of fraud,
should conduct a hearing because it committed an error in
mistake or duress, or any other ground vitiating consent
dismissing the case.
6. An order of execution
7. A judgment or final order for or against one or more of
Section 9.Applicability of Rule 41. — The other provisions of Rule 41 shall apply
to appeals provided for herein insofar as they are not inconsistent with or several parties or in separate claims, counterclaims, cross-
may serve to supplement the provisions of this Rule. (n) claims and third-party complaints, while the main case is
pending, unless the court allows an appeal therefrom
8. An order dismissing an action without prejudice.
REMEDY ON NON APPEALABLE ORDERS OR DECISION:

CERTIORARI; GRAVE ABUSE OF DISCRETION
If you cannot appeal these decisions, what is your remedy?
Since they are not appealable, you avail of the special civil
action of CERTIORARI UNDER RULE 65 ON THE GROUND OF
GRAVE ABUSE OF DISCRETION amounting to lack or in excess
of jurisdiction.

Kwin
Section 2.Modes of appeal. — Section 3.Period of ordinary appeal. — The appeal shall be taken within fifteen
(a) Ordinary appeal. — The appeal to the Court of Appeals in cases decided by (15) days from notice of the judgment or final order appealed from. Where a
the Regional Trial Court in the exercise of its original jurisdiction shall be record on appeal is required, the appellant shall file a notice of appeal and a
taken by filing a notice of appeal with the court which rendered the record on appeal within thirty (30) days from notice of the judgment or final
judgment or final order appealed from and serving a copy thereof upon the order.
adverse party. No record on appeal shall be required except in special The period of appeal shall be interrupted by a timely motion for new trial or
proceedings and other cases of multiple or separate appeals where law on reconsideration. No motion for extension of time to file a motion for new
these Rules so require. In such cases, the record on appeal shall be filed and trial or reconsideration shall be allowed. (n)
served in like manner.
(b) Petition for review. — The appeal to the Court of Appeals in cases decided PERIOD OF ORDINARY APPEAL
by the Regional Trial Court in the exercise of its appellate jurisdiction shall
be by petition for review in accordance with Rule 42. Appeal from the decision in RTC to CA may be done by mere
(c) Appeal by certiorari. — In all cases where only questions of law are raised or notice of appeal or by records on appeal.
involved, the appeal shall be to the Supreme Court by petition for review A. 15 DAYS IF APPEAL BY MERE NOTICE OF APPEAL
on certiorari in accordance with the Rule 45. (n)
If it is an ordinary civil action, you appeal the decision of
the RTC to CA by mere notice of appeal within 15 days from
MODES OF APPEAL FROM RTC TO CA
receipt of the decision of adverse decision.
1. ORDINARY APPEAL
A. MERE NOTICEOF APPEAL
B. 30 DAYS IF APPEAL BY NOTICE OF APPEAL AND RECORDS
B. NOTICE OF APPEAL PLUS RECORDS ON APPEAL
ON APPEAL
1. SPECIAL PROCEEDINGSA
If the case is special proceedings or multiple or separate
2. MULTIPLE APPEALS
appeals, you do it by notice of appeal and records on appeal.
3. SEPARATE APPEALS
2. PETITION FOR REVIEW
C. 48 HOURS IF APPEL ON HABES CORPUS CASES
3. APPEAL BY CERTIORARI
In cases of appeal from habeas corpus cases, appeal is 48
hours only. That is 2 days from receipt of the order that is
1. ORDINARY APPEAL (RUEL 41)
adverse to you.
-NOTICE OF APPEAL PLUS RECORDS
This is done by filing a notice of appeal or an appeal by
EFFECT ON PERIOD TO APPEAL ON THE FILING OF MR/MNT:
notice of appeal plus records on appeal. The latter applies
NO SUSPENSION
on special proceedings or multiple appeal or separate
The filing of MR or MNT shall suspend the running of the
appeal.
period to appeal. In the case of Neypes vs CA, SC said that
This refers to an appeal of the decision of the RTC in the
when the MR or MNT is denied by the court, you have a
exercise of its original jurisdiction.
fresh period of 15 days to appeal, and not just the balance.
So the use of the term “suspension” is no longer correct.
2. PETITION FOR REVIEW (RULE 42)
-FRESH PERIOD RULE
This is covered by the next rule. This refers to the appeal
IOW he 15 day fresh period rule is of jurisprudential origin,
from the decision of the RTC in the exercise of its appellate
not under rules of court.
jurisdiction
Section 4.Appellate court docket and other lawful fees. — Within the period for
3. PETITION FOR CERTIORARI UNDER RULE 45 taking an appeal, the appellant shall pay to the clerk of the court which
This is directly to SC but what you can raise there is pure rendered the judgment or final order appealed from, the full amount of the
appellate court docket and other lawful fees. Proof of payment of said fees
question of law shall be transmitted to the appellate court together with the original record
When RTC decides a case and it is in the exercise of the or the record on appeal. (n)
original jurisdiction, and you are not contended with the
decision and what you are questioning is not the factual DOCKET FEE
finding of RTC but the conclusion of law, where will you -WHERE TO PAY: COURT OF ORIGIN
appeal the decision of RTC? When you appeal the decision to CA, you have to pay the
Go directly to SC. If it s a pure question of law and no docket fee in the court of origin. (same as rule 40)
question of fact involved, you can appeal directly to SC by
way of petition of certiorari under rule 45, not rule 65.

Kwin
Section 5.Notice of appeal. — The notice of appeal shall indicate the parties to Section 7.Approval of record on appeal. — Upon the filing of the record on appeal
the appeal, specify the judgment or final order or part thereof appealed from, for approval and if no objection is filed by the appellee within five (5) days
specify the court to which the appeal is being taken, and state the material from receipt of a copy thereof, the trial court may approve it as presented or
dates showing the timeliness of the appeal. (4a) 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
essential to the determination of the issue of law or fact involved in the
NOTICE OF APPEAL appeal. If the trial court orders the amendment of the record, the appellant,
-MATERIAL DATA RULE within the time limited in the order, or such extension thereof as may be
If you appeal by notice of appeal, you must observe the granted, or if no time is fixed by the order within ten (10) days from receipt
thereof, shall redraft the record by including therein, in their proper
material data rule, just like in MTC. chronological sequence, such additional matters as the court may have
It requires that when you appeal the decision of the courts, directed him to incorporate, and shall thereupon submit the redrafted
you must specify the material dates necessary to determine record for approval, upon notice to the appellee, in like manner as the
original draft. (7a)
if the appeal was filed on time:
1. When did you receive the decision?
APPROVAL OF RECORD ON APPEAL
2. When did you file your appeal?
When you prepare the records on appeal, you submit it to
the court for approval of the court which renders the
Section 6.Record on appeal; form and contents thereof. — The full names of all the
parties to the proceedings shall be stated in the caption of the record on judgment. You furnish a copy to opposing party. And the
appeal and it shall include the judgment or final order from which the latter is given 10 days to comment on the completeness and
appeal is taken and, in chronological order, copies of only such pleadings,
petitions, motions and all interlocutory orders as are related to the appealed
accuracy of the documents.
judgment or final order for the proper understanding of the issue involved, If there are such inaccuracies, the court will order the
together with such data as will show that the appeal was perfected on time. appellant to amend the records on appeal. The appellant will
If an issue of fact is to be raised on appeal, the record on appeal shall include
by reference all the evidence, testimonial and documentary, taken upon the
be given 10 days to make an amendment.
issue involved. The reference shall specify the documentary evidence by the After the amendment, the court will approve the records on
exhibit numbers or letters by which it was identified when admitted or appeal.
offered at the hearing, and the testimonial evidence by the names of the
corresponding witnesses. If the whole testimonial and documentary
evidence in the case is to be included, a statement to that effect will be -APPROVAL OF RECORDS ON APPEAL DETERMINES WHEN
sufficient without mentioning the names of the witnesses or the numbers or APPEAL IS PERFECTED
letters of exhibits. Every record on appeal exceeding twenty (20) pages
must contain a subject index. (6a)
It is important to know when the court approves the record
on appeal because it determines when the appeal is
RECORDS ON APPEAL perfected.
-WHEN REQUIRED
Records on appeal is required when you appeal a decision of So an appeal by records on appeal is subject to the approval
RTC in special proceedings cases or cases involving mutiplke of the court whose decision is being appealed.
and separate appeal.
Section 8.Joint record on appeal. — Where both parties are appellants, they may
file a joint record on appeal within the time fixed by section 3 of this Rule, or
-CONTENTS that fixed by the court. (8a)
It is a compilation of the entire records in the court of origin
prepared by YOU. JOINT RECORD ON APPEAL
You make a statement of facts. You make reference of the It is possible that both parties may file an appeal. They may
pleadings filed. file a JOINT APPEAL BY RECORDS ON APPEAL, although they
This must be presented in chronological order. will have separate arguments.
-IF RESORDS EXCEED MORE THAN 20 PAGES, MAKE SUBJECT Section 9. Perfection of appeal; effect thereof. — A party's appeal by notice of
appeal is deemed perfected as to him upon the filing of the notice of appeal
INDEX in due time.
If the records on appeal will exceed more than 20 pages, then A party's appeal by record on appeal is deemed perfected as to him with
you have to have a subject index. You make reference to the respect to the subject matter thereof upon the approval of the record on
appeal filed in due time.
pleadings. This will guide the appellate court in In appeals by notice of appeal, the court loses jurisdiction over the case upon
understanding the case. the perfection of the appeals filed in due time and the expiration of the time
to appeal of the other parties.
In appeals by record on appeal, the court loses jurisdiction only over the
subject matter thereof upon the approval of the records on appeal filed in
due time and the expiration of the appeal of the other parties.
In either case, prior to the transmittal of the original record or the record on
appeal, the court may issue orders for the protection and preservation of the
rights of the parties which do not involve any matter litigated by the appeal,
approve compromises, permit appeals of indigent litigants, order execution
pending appeal in accordance with 2 of Rule 39, and allow withdrawal of
the appeal. (9a)

Kwin
WHEN APPEAL IS DEEMED PERFECTED Section 10.Duty of clerk of court of the lower court upon perfection of appeal. — Within
thirty (30) days after perfection of all the appeals in accordance with the
When s appeal deemed perfected? preceding section, it shall be the duty of the clerk of court of the lower
A. APPEAL BY MERE NOTICE OF APPEAL: AFTER LAPSE OF 15 court:
DAY PERIOD (a) To verify the correctness of the original record or the record on appeal, as
the case may be aid to make certification of its correctness;
As to the appellant, from the time he files a notice of (b) To verify the completeness of the records that will be, transmitted to the
appeal. appellate court;
As to the appellee, it may not be perfected, because he (c) If found to be incomplete, to take such measures as may be required to
complete the records, availing of the authority that he or the court may
may also file a notice of appeal. exercise for this purpose; and
As to both parties, as of the lapse of 15 day period to (d) To transmit the records to the appellate court.
appeal and the appellee has not filed a notice of appeal. If the efforts to complete the records fail, he shall indicate in his letter of
transmittal the exhibits or transcripts not included in the records being
transmitted to the appellate court, the reasons for their non-transmittal, and
So in n ordinary appeal where the law requires a mere the steps taken or that could be taken to have them available.
notice of appeal, the appeal is deemed perfected as to the The clerk of court shall furnish the parties with copies of his letter of
transmittal of the records to the appellate court. (10a)
appellant from the moment he files notice of appeal.
But it becomes perfected as to both parties after the lapse
of the 15 day period to appeal and the appellee did not Section 11.Transcript. — Upon the perfection of the appeal, the clerk shall
appeal. IOW it is only deemed perfected after the lapse of immediately direct the stenographers concerned to attach to the record of
15 day period to appeal. the case five (5) copies of the transcripts of the testimonial evidence referred
to in the record on appeal. The stenographers concerned shall transcribe
such testimonial evidence and shall prepare and affix to their transcripts an
Example. they both received the decision of the court in index containing the names of the witnesses and the pages wherein their
Dec 15. The plaintiff filed it in 8th day. It is perfected as to testimonies are found, and a list of the exhibits and the pages wherein each
of them appears to have been offered and admitted or rejected by the trial
him, but not as to the defendant. After the lapse of 15 day court. The transcripts shall be transmitted to the clerk of the trial court who
period, it is perfected as to both of them. shall thereupon arrange the same in the order in which the witnesses
testified at the trial, and shall cause the pages to be numbered consecutively.
(12a)
B. APPEAL BY RECORDS ON APPEAL: AFTER APPROVAL OF
COURT
In appeal by records on appeal, the approval of the court is Section 12.Transmittal. — The clerk of the trial court shall transmit to the
appellate court the original record or the approved record on appeal within
necessary. thirty (30) days from the perfection of the appeal, together with the proof of
As to appellant, from the time of the approval of the court. payment of the appellate court docket and other lawful fees, a certified true
As to appellee, as of the lapse of 15 day period to appeal. copy of the minutes of the proceedings, the order of approval, the certificate
of correctness, the original documentary evidence referred to therein, and
the original and three (3) copies of the transcripts. Copies of the transcripts
AFTER BREAK … and certified true copies of the documentary evidence shall remain in the
lower court for the examination of the parties. (11a)
DISMISSAL OF APPEAL: MAY BE FILED IN RTC OR CA
In an ordinary appeal, the court may dismiss outrightly if Section 13.Dismissal of appeal. — Prior to the transmittal of the original record
the court finds that it was not filed on time or that the or the record on appeal to the appellate court, the trial court
may motupropio or on motion dismiss the appeal for having been taken out of
docket fee was not paid by the appellant time. (14a)
It does not preclude you from asking the dismissal of the
appeal in the appellate court. So you may ask for the
dismissal in RTC or in CA.
-RESIDUAL JURISDICTION OF RTC
Residual jurisdiction of the RTC. This means that before the
RTC will forward the records of the case to CA, the RTC may
still exercise some jurisdiction by issuing ORDERS FOR
PRESERVATION OF THE RIGHTS OF THE PARTIES like
EXECUTION PENDING APPEAL, even if the appeal has already
been perfected but before the RTC still have the records of
the case because it still has jurisdiction insofar as
preservation of right of parties

Kwin
RULE 42 PETITION FOR REVIEW FROM THE REGIONAL TRIAL -WHEN TO FILE: 15 DAYS, ONE 15 DAY EXTENSION OF TIME
COURTS TO THE COURT OF APPEALS TO FILE
You have 15 days to file petition of review from receipt of
RULE 42
Petition for Review From the Regional Trial Courts to the Court of
adverse decision of RTC
Appeals -EXTENSION OF TIME TO FILE: 15 DAYS
Can you ask for an extension of time to file a petition for
Section 1.How appeal taken; time for filing. — A party desiring to appeal from a
decision of the Regional Trial Court rendered in the exercise of its appellate
review?
jurisdiction may file a verified petition for review with the Court of Appeals, Since it takes time where you need to present argument,
paying at the same time to the clerk of said court the corresponding docket you may ask for an extension for another 15 days. But only
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 the
one extension, unless there are valid reasons to extend
petition. The petition shall be filed and served within fifteen (15) days from again.
notice of the decision sought to be reviewed or of the denial of petitioner's What is the condition before the grant of motion for
motion for new trial or reconsideration filed in due time after judgment.
Upon proper motion and the payment of the full amount of the docket and extension of time?
other lawful fees and the deposit for costs before the expiration of the You have to pay first the docket fee and other lawful fees.
reglementary period, the Court of Appeals may grant an additional period of
fifteen (15) days only within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and in no
case to exceed fifteen (15) days. (n)
APPEAL OF RTC’S DECISION ON THE EXERCISE OF APPELLATE Section 2.Form and contents. — The petition shall be filed in seven (7) legible
copies, with the original copy intended for the court being indicated as such
JURISDICTION by the petitioner, and shall (a) state the full names of the parties to the case,
This is the mode of appeal on the decisions if RTC in the without impleading the lower courts or judges thereof either as petitioners
exercise of its appellate jurisdiction. Meaning, the case or respondents; (b) indicate the specific material dates showing that it was
filed on time; (c) set forth concisely a statement of the matters involved, the
originated in the MTC. issues raised, the specification of errors of fact or law, or both, allegedly
Example. You file a case in MTC. You lost. RTC affirmed the committed by the Regional Trial Court, and the reasons or arguments relied
decision of MTC. You will have to appeal the decision of RTC upon for the allowance of the appeal; (d) be accompanied by clearly legible
duplicate originals or true copies of the judgments or final orders of both
under rule 42, not 41. lower courts, certified correct by the clerk of court of the Regional Trial
Court, the requisite number of plain copies thereof and of the pleadings and
RULE 41 VS RULE 42 other material portions of the record as would support the allegations of the
petition.
41: appeal from decision of RTC in exercise of original The petitioner shall also submit together with the petition a certification
jurisdiction under oath that he has not theretofore commenced any other action
42: appeal from decision of RTC in exercise of appellate involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency; if there is such
jurisdiction other action or proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has been filed or is
41: file in RTC pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly
42: file in CA inform the aforesaid courts and other tribunal or agency thereof within five
(5) days therefrom. (n)
41: pay docket fee in RTC
42: pay docket fee in CA NUMBER OF COPIES: 7
How many copies do you have to prepare?
HOW TO APPEAL When you file a petition in CA, you have to prepare 7
-WHAT TO FILE: VERIFIED PETITION FOR REVIEW copies. Basta CA gani, 7 copies jud na.
By filing a verified petition for review
FORMS AND CONTENTS
-WHERE TO FILE: IN CA 1. FULL NAMES OF THE PARTIES WITHOUT IMPLEADING THE
Where will you file petition for review? TRIAL COURT JUDGE AS A RESPONDENT
In CA. Unlike in certiorari under rule 45 where you are accusing
41: file in RTC the judge of committing grave abuse of discretion
42: file in CA amounting to lack or in excess of jurisdiction.
2. MATERIAL DATES
-WHERE TO PAY THE DOCKET FEE, AND OTHER COSTS Material data rule must be observed.
Where will you pay the docket fee? 3. STATEMENT OF THE MATTERS INVOLVED
In the CA, not court of origin. 4. CERTIFIED TRUE COPY OF THE DECISION
41: pay docket fee in RTC 5. CERTIFICATION OF NON FORUM SHOPPING
42: pay docket fee in CA
Aside from docket fee you pay lawful fee, deposit for cost
and P500.00

Kwin
Section 3.Effect of failure to comply with requirements. — The failure of the Section 6.Due course. — If upon the filing of the comment or such other
petitioner to comply with any of the foregoing requirements regarding the pleadings as the court may allow or require, or after the expiration of the
payment of the docket and other lawful fees, the deposit for costs, proof of period for the filing thereof without such comment or pleading having been
service of the petition, and the contents of and the documents which should submitted, the Court of Appeals finds prima facie that the lower court has
accompany the petition shall be sufficient ground for the dismissal thereof. committed an error of fact or law that will warrant a reversal or
(n) modification of the appealed decision, it may accordingly give due course to
the petition. (n)
EFFECT OF FAILURE TO COMPLY WITH REQUIREMENETS: GIVING DUE COURSE TO THE PETITION
DISMISSAL After the comment is filed, CA will decide whether the
Petition will be dismissed by the courts petition is sufficient in form and substance. If there is, the
If you fail to comply with the form and contents and other court will give due course to the petition.
requirements like furnishing a copy to the other party and When the court gives due course to the petition, it does not
non payment of docket and lawful fees, these are grounds mean that the petition is granted. Remember that the CA
for the dismissal of your appeal. may dismiss the case outrightly.
Giving due course only means that the RTC will have to
Section 4.Action on the petition. — The Court of Appeals may require the elevate the records to CA. This time the CA will study your
respondent to file a comment on the petition, not a motion to dismiss, petition carefully.
within ten (10) days from notice, or dismiss the petition if it finds the same
to be patently without merit, prosecuted manifestly for delay, or that the Because when you file the petition for review, the RTC need
questions raised therein are too insubstantial to require consideration. (n) not forward the records the CA. because for all you know,
the CA will outrightly dismiss the case. Only when the CA
ACTION ON PETITION decided to give the petition due course, when the RTC will
Once you filed and paid for the docket fee, what will be the forward the records of the case.
action of CA on the petition?
A. To allow the other party to file comment in petition ISSUES THAT MAY BE RAISED
B. To dismiss the petition outrightly on the grounds: Issues that you may raise may involve
1. patently without merit 1. questions of facts
2. prosecuted manifestly for delay 2. questions of law
3. that the questions raised therein are too insubstantial to 3. mixed questions of facts and law
warrant consideration
Remember that a petition for review is not a matter of -PURE QUESTION OF LAW
right, it is a matter of sound judicial discretion. So when So even if it is a pure question of law, you need not go
you file your petition for review that it is a matter of course directly to SC. Going directly to SC happens when RTC is in
that CA will entertain it. CA may outrightly dismiss it. exercise of original jurisdiction. But in this case, the RTC is in
the exercise of its appellate jurisdiction; so we go through
PRTIES IN PETITION FOR REVIEW CA first.
BTW in petition for review, the appellant here is called
petitioner and the other party is respondent because the Section 7.Elevation of record. — Whenever the Court of Appeals deems it
necessary, it may order the clerk of court of the Regional Trial Court to
action is petition for review. elevate the original record of the case including the oral and documentary
evidence within fifteen (15) days from notice. (n)
Section 5.Contents of comment. — The comment of the respondent shall be filed
in seven (7) legible copies, accompanied by certified true copies of such
Section 8.Perfection of appeal; effect thereof. — (a) Upon the timely filing of a
material portions of the record referred to therein together with other petition for review and the payment of the corresponding docket and other
supporting papers and shall (a) state whether or not he accepts the lawful fees, the appeal is deemed perfected as to the petitioner.
statement of matters involved in the petition; (b) point out such The Regional Trial Court loses jurisdiction over the case upon the perfection
insufficiencies or inaccuracies as he believes exist in petitioner's statement of the appeals filed in due time and the expiration of the time to appeal of
of matters involved but without repetition; and (c) state the reasons why
the other parties.
the petition should not be given due course. A copy thereof shall be served
However, before the Court of Appeals gives due course to the petition, the
on the petitioner. (a) Regional Trial Court may issue orders for the protection and preservation of
the rights of the parties which do not involve any matter litigated by the
CONTENTS OF COMMENT appeal, approve compromises, permit appeals of indigent litigants, order
execution pending appeal in accordance with section 2 of Rule 39, and allow
Contents of the comment of petition will state whether he: withdrawal of the appeal. (9a, R41)
1. agree with the petitioner on the statement of the facts (b) Except in civil cases decided under the Rule on Summary Procedure, the
2. present argument in support of the RTC, which are appeal shall stay the judgment or final order unless the Court of Appeals, the
law, or these Rules shall provide otherwise. (a)
favorable to you
PERFECTION OF APPEAL
It is deemed perfected upon filing of petition for review in CA.
RTC’S RESIDUAL POWER

The RTC exercises RESIDUAL POWER over the case until the
records are forwarded to CA, just like in rule 41

Kwin
Section 9.Submission for decision. — If the petition is given due course, the RULE 43 APPEALS FROM THE CTA OR QJ AGENCIES TO CA
Court of Appeals may set the case for oral argument or require the parties to RULE 43
submit memoranda within a period of fifteen (15) days from notice. The case Appeals From the Court of Tax Appeals and Quasi-Judicial Agencies to
shall be deemed submitted for decision upon the filing of the last pleading or the Court of Appeals
memorandum required by these Rules or by the court itself. (n)
Section 1.Scope. — This Rule shall apply to appeals from judgments or final
EFFECT OF PETITION FOR REVIEW INSOFR AS TO EXECUTION orders of the Court of Tax Appeals and from awards, judgments, final orders
OF JUDGMENT or resolutions of or authorized by any quasi-judicial agency in the exercise of
its quasi-judicial functions. Among these agencies are the Civil Service
GR: STAY JUDGMENT Commission, Central Board of Assessment Appeals, Securities and
EXPT: RULE OF SUMMARY PROCEDURE Exchange Commission, Office of the President, Land Registration Authority,
EXPT2: CA ISSUES TRO OT PRELIMINARY INJUNCTION Social Security Commission, Civil Aeronautics Board, Bureau of Patents,
Trademarks and Technology Transfer, National Electrification
In rule 42, the appeal stays the judgment except the rule of Administration, Energy Regulatory Board, National Telecommunications
summary procedure. Commission, Department of Agrarian Reform under Republic Act No. 6657,
In cases of summary procedure, like in the case of ejectment, Government Service Insurance System, Employees Compensation
Commission, Agricultural Invention Board, Insurance Commission,
the judgment of RTC is immediately executory. So even if Philippine Atomic Energy Commission, Board of Investments, Construction
you filed a petition for review, the judgment can be Industry Arbitration Commission, and voluntary arbitrators authorized by
executed unless CA issued a TRO or preliminary injunction law. (n)
Section 2.Cases not covered. — This Rule shall not apply to judgments or final
orders issued under the Labor Code of the Philippines. (n)
APPEALS FROM THE QJ AGENCIES TO CA

-WHERE TO APPEAL
Where do you appeal the decision of QJ bodies?
In CA.
APPEALS FROM THE CTA TO SC (RA 9282)

What about decision of CTA?
Now appealable in SC because the CTA is almost equal in
rank with CA.
If you read rule 43, decisions of CTA are appealable to CA.
But this was already changed by RA 9282 which provides
that appeal may now be done directly to SC
APPEAL FROM NLRC AND SECRETARY OF LABOR TO CA

Decisions from NLRC and Secretary of Labor are no longer
directly appealable to SC.
-Case: St Martins Funeral Home vs NLRC
Decisions must be appeal to CA first by certiorari under rule
65, before going to SC in observance with hierarchy of
courts.
If you still lost in CA, you my now appeal to SC by rule 45.
SEC JURISDICTION – NOW TRANSFERRED TO RTC – APPEAL

TO CA
Among the administrative agencies that exercised QJ
functions was the SEC. SEC used to exercise exclusive
jurisdiction over intracorporate disputes. But it has now
been transferred to RTC.
Where do you appeal the RTC’s decision as a corporate
court?
To CA under rule 43, not under rule 41.

Kwin
Section 3.Where to appeal. — An appeal under this Rule may be taken to the Section 7.Effect of failure to comply with requirements. — The failure of the
Court of Appeals within the period and in the manner herein provided, petitioner to comply with any of the foregoing requirements regarding the
whether the appeal involves questions of fact, of law, or mixed questions of payment of the docket and other lawful fees, the deposit for costs, proof of
fact and law. (n) service of the petition, and the contents of and the documents which should
accompany the petition shall be sufficient ground for the dismissal thereof.
(n)
APPEALABLE ISSUES
1. Questions of fact Section 8.Action on the petition. — The Court of Appeals may require the
2. Questions of law respondent to file a comment on the petition not a motion to dismiss, within
3. Mixed question of fact and law ten (10) days from notice, or dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for delay, or that the
IOW even pure question of law may be elevated to CA. questions raised therein are too unsubstantial to require consideration. (6a)
Section 4.Period of appeal. — The appeal shall be taken within fifteen (15) days
from notice of the award, judgment, final order or resolution, or from the
ACTION ON PETITION
date of its last publication, if publication is required by law for its What will be the actions of the court?
effectivity, or of the denial of petitioner's motion for new trial or Same as under rule 42.
reconsideration duly filed in accordance with the governing law of the court
or agency a quo. Only one (1) motion for reconsideration shall be allowed.
A. OUTRIGHTLY DISMISS THE CASE
Upon proper motion and the payment of the full amount of the docket fee The court may outrghtly dismiss the petition if the court
before the expiration of the reglementary period, the Court of Appeals may finds:
grant an additional period of fifteen (15) days only within which to file the
petition for review. No further extension shall be granted except for the
1. patently without merit
most compelling reason and in no case to exceed fifteen (15) days. (n) 2. prosecuted manifestly for delay
3. arguments are too unsubstantial to warrant consideration
PERIOD TO APPEAL: 15 DAYS B. REQUIRE OTHER PARTY TO FILE COMMENT
You have 15 days to appeal from receipt of the adverse Or the court may require the other party to file their
decision comment.
EXTENSION
Can you ask for an extension of another 15 days? Section 9.Contents of comment. — The comment shall be filed within ten (10)
days from notice in seven (7) legible copies and accompanied by clearly
Yes. Like rule 42, provided that you file docket fee and legible certified true copies of such material portions of the record referred
other lawful fees to therein together with other supporting papers. The comment shall (a)
point out insufficiencies or inaccuracies in petitioner's statement of facts
and issues; and (b) state the reasons why the petition should be denied or
Section 5.How appeal taken. — Appeal shall be taken by filing a verified
dismissed. A copy thereof shall be served on the petitioner, and proof of such
petition for review in seven (7) legible copies with the Court of Appeals,
service shall be filed with the Court of Appeals. (9a)
with proof of service of a copy thereof on the adverse party and on the court
or agency a quo. The original copy of the petition intended for the Court of
Appeals shall be indicated as such by the petitioner. COMMENT: WHEN FILED
Upon the filing of the petition, the petitioner shall pay to the clerk of court of
the Court of Appeals the docketing and other lawful fees and deposit the
He is given 10 days to file comment unless the court gives a
sum of P500.00 for costs. Exemption from payment of docketing and other longer period.
lawful fees and the deposit for costs may be granted by the Court of Appeals
upon a verified motion setting forth valid grounds therefor. If the Court of Section 10.Due course. — If upon the filing of the comment or such other
Appeals denies the motion, the petitioner shall pay the docketing and other pleadings or documents as may be required or allowed by the Court of
lawful fees and deposit for costs within fifteen (15) days from notice of the Appeals or upon the expiration of the period for the filing thereof, and on
denial. (n) the records the Court of Appeals finds prima facie that the court or agency
concerned has committed errors of fact or law that would warrant reversal
HOW APPEAL IS TAKEN or modification of the award, judgment, final order or resolution sought to
be reviewed, it may give due course to the petition; otherwise, it shall
By verified petition for review dismiss the same. The findings of fact of the court or agency concerned,
when supported by substantial evidence, shall be binding on the Court of
Section 6.Contents of the petition. — The petition for review shall (a) state the Appeals. (n)
full names of the parties to the case, without impleading the court or
agencies either as petitioners or respondents; (b) contain a concise
statement of the facts and issues involved and the grounds relied upon for
DUE COURSE
the review; (c) be accompanied by a clearly legible duplicate original or a After the comment is filed, then the court will give due course
certified true copy of the award, judgment, final order or resolution appealed to the petition is sufficient in form and substance. And
from, together with certified true copies of such material portions of the
record referred to therein and other supporting papers; and (d) contain a
whether there is merit to the petition. And if there is so,
sworn certification against forum shopping as provided in the last then the court will give due course to the petition.
paragraph of section 2, Rule 42. The petition shall state the specific material
dates showing that it was filed within the period fixed herein. (2a)
ORDERED TO FILE MEMORANDUM
When the petition is given due course, the respondent may
CONTENTS OF PETITION
file a memorandum in support of his contention.
Same as under rule 42

Kwin
DOCTRINE OF PRIMARY JURISDICTION RULE 44 ORDINARY APPEALED CASES
In rules 42 and 43, the findings of fact of the lower court has Procedure in the Court of Appeals
RULE 44
to be respected by the appellate court. This is true with Ordinary Appealed Cases
more reasons in rule 43. The findings of facts is binding on Rule 44 applies to ordinary appealed cases. This is in relation
the appellate court. to Rule 41.
Because these administrative bodies are considered experts
by the court. This is known as the doctrine of primary Section 1.Title of cases. — In all cases appealed to the Court of Appeals under
jurisdiction. It means that the administrative bodies and Rule 41, the title of the case shall remain as it was in the court of origin, but
the party appealing the case shall be further referred to as the appellant and
agencies know better in their fields. Unless it is clear and the adverse party as the appellee. (1a, R46)
glaring that they committed error
TITLE OF THE CASE
The original Title will be the same, then you add the words:
Section 11.Transmittal of record. — Within fifteen (15) days from notice that the
petition has been given due course, the Court of Appeals may require the appellant and appellee. (deviation from the old rules)
court or agency concerned to transmit the original or a legible certified true
copy of the entire record of the proceeding under review. The record to be Section 2.Counsel and guardians. — The counsel and guardians ad litem of the
transmitted may be abridged by agreement of all parties to the proceeding. parties in the court of origin shall be respectively considered as their counsel
The Court of Appeals may require or permit subsequent correction of or and guardians ad litem in the Court of Appeals. When others appear or are
addition to the record. (8a) appointed, notice thereof shall be served immediately on the adverse party
and filed with the court. (2a, R46)
TRANSMITTAL OF RECORDS
Once court gives due course, the records will be transmitted COUNSEL AND GUARDIANS
Whoever is the counsel on record in the lower court shall be
Section 12.Effect of appeal. — The appeal shall not stay the award, judgment, presumed counsel of record on appeal, unless there is
final order or resolution sought to be reviewed unless the Court of Appeals proper notice given to the court.
shall direct otherwise upon such terms as it may deem just. (10a)
The appellate court may send notice to the counsel in the
court of origin if the prior is not notified of the change of
EFFECT OF APPEAL ON THE JUDGMENT
counsel.
Appeal shall not stay the judgment of the QJ body unless the
CA directs OW
Section 3.Order of transmittal of record. — If the original record or the record on
appeal is not transmitted to the Court of Appeals within thirty (30) days
Section 13.Submission for decision. — If the petition is given due course, the after the perfection of the appeal, either party may file a motion with the
Court of Appeals may set the case for oral argument or require the parties to trial court, with notice to the other, for the transmittal of such record or
submit memoranda within a period of fifteen (15) days from notice. The case record on appeal. (3a, R46)
shall be deemed submitted for decision upon the filing of the last pleading or
memorandum required by these Rules or by the court of Appeals. (n)
TRANSMITTAL OF RECORDS OF THE CASE
When the appeal is perfected, then the court of origin has the
SUBMISSION OF MEMORANDUM OR ORAL ARGUMENTS
duty to transmit the records of the case to the appellate
Here, CA may require parties to submit memorandum or
submit to oral arguments before deciding the case court.

Kwin
Section 4.Docketing of case. — Upon receiving the original record or the record Section 8. Appellee's brief. — Within forty-five (45) days from receipt of the
on appeal and the accompanying documents and exhibits transmitted by the appellant's brief, the appellee shall file with the court seven (7) copies of his
lower court, as well as the proof of payment of the docket and other lawful legibly typewritten, mimeographed or printed brief, with proof of service of
fees, the clerk of court of the Court of Appeals shall docket the case and two (2) copies thereof upon the appellant. (11a, R46)
notify the parties thereof. (4a, R46)
Within ten (10) days from receipt of said notice, the appellant, in appeals by
record on appeal, shall file with the clerk of court seven (7) clearly legible APPELLEE’S BRIEF
copies of the approved record on appeal, together with the proof of service Other party will also file appellee’s brief with 45 days from
of two (2) copies thereof upon the appellee. receipt of copy of appellant’s brief.
Any unauthorized alteration, omission or addition in the approved record on
appeal shall be a ground for dismissal of the appeal. (n)
EFFECT OF NOT FILING THE BRIEF
APPROVED RECORDS ON APPEAL 1. APPELANT’S BRIEF – ground for dismissal of appeal
Approved records on appeal should be filed within 10 days 2. APPELLEE’S BRIEF – no effect; not mandatory
from notice.
Section 9.Appellant's reply brief. — Within twenty (20) days from receipt of the
When the appeal is by records on appeal, you have to have appellee's brief, the appellant may file a reply brief answering points in the
the records on appeal approved by the court of origin first. appellee's brief not covered in his main brief. (12a, R46)
once it is approved, the appeal is deemed perfected as to
you. Later on, after the lapse of the of the 15 day period for APPELLENT’S REPLY BRIEF
the other party to appeal has expired, the appeal is deemed The appellant may file a reply brief within 20 days
perfected s to both of you. In special cases, the parties may be requested to fle a
Then the records of the case will be elevated to the higher memoranda within 30 days.
court.
The court will issue an order to file appellant’s brief. Section 10.Time of filing memoranda in special cases. — In certiorari, prohibition,
mandamus, quo warranto and habeas corpus cases, the parties shall file in lieu of
briefs, their respective memoranda within a non-extendible period of thirty
In appeal by records on appeal, you have 10 days to submit (30) days from receipt of the notice issued by the clerk that all the evidence,
approved records on appeal to the appellate court. oral and documentary, is already attached to the record. (13a, R46)
The failure of the appellant to file his memorandum within the period
therefor may be a ground for dismissal of the appeal. (n)
Section 5.Completion of record. — Where the record of the docketed case is
incomplete, the clerk of court of the Court of Appeals shall so inform said
court and recommend to it measures necessary to complete the record. It MEMORANDA IN SPECIAL CASES
shall be the duty of said court to take appropriate action towards the
In special cases such as certiorari, prohibition and mandamus,
completion of the record within the shortest possible time. (n)
them memoranda will be required.
Section 6.Dispensing with complete record. — Where the completion of the record
could not be accomplished within a sufficient period allotted for said Section 11.Several appellants or appellees or several counsel for each party. — Where
purpose due to insuperable or extremely difficult causes, the court, on its there are several appellants or appellees, each counsel representing one or
own motion or on motion of any of the parties, may declare that the record more but not all of them shall be served with only one copy of the briefs.
and its accompanying transcripts and exhibits so far available are sufficient When several counsel represent one appellant or appellee, copies of the brief
to decide the issues raised in the appeal, and shall issue an order explaining may be served upon any of them. (14a, R46)
the reasons for such declaration. (n)
Section 12.Extension of time for filing briefs. — Extension of time for the filing of
Section 7.Appellant's brief. — It shall be the duty of the appellant to file with briefs will not be allowed, except for good and sufficient cause, and only if
the court, within forty-five (45) days from receipt of the notice of the clerk the motion for extension is filed before the expiration of the time sought to
that all the evidence, oral and documentary, are attached to the record, seven be extended. (15, R46)
(7) copies of his legibly typewritten, mimeographed or printed brief, with
proof of service of two (2) copies thereof upon the appellee. (10a, R46)
APPELLANT’S BRIEF
In an ordinary appeal, the appellant is required to file an
appellant’s brief.
In an ordinary appeal, you just file a notice of appeal and at
the same time, you pay the docket fee in the court of origin.
-WHEN TO FILE
Then the RTC will forward the records of the case to the
CA. once the CA has received the records of the case, the
RTC will now notify you to file the appellant’s brief within 45
days from receipt of the order.
-EXTENSION OF TIME TO FILE
Can you ask for extension of time?
Yes. 45 to 90 days, PVDD you have paid the docket and
other lawful fees.

Kwin
Section 13.Contents of appellant's brief. — The appellant's brief shall contain, in the case…”
the order herein indicated, the following:
(a) A subject index of the matter in the brief with a digest of the arguments
-COUNTER REFUTATION OF THE ASSIGNED ERRORS
and page references, and a table of cases alphabetically arranged, textbooks One of the most important part of the appellant’s brief is
and statutes cited with references to the pages where they are cited; the assignment of errors. The appellee must make a
(b) An assignment of errors intended to be urged, which errors shall be
separately, distinctly and concisely stated without repetition and numbered
refutation of the assigned errors.
consecutively;
(c) Under the heading "Statement of the Case," a clear and concise statement Section 15.Questions that may be raised on appeal. — Whether or not the appellant
of the nature of the action, a summary of the proceedings, the appealed has filed a motion for new trial in the court below he may include in his
rulings and orders of the court, the nature of the judgment and any other assignment of errors any question of law or fact that has been raised in the
matters necessary to an understanding of the nature of the controversy with court below and which is within the issues framed by the parties. (18, R46)
page references to the record;
(d) Under the heading "Statement of Facts," a clear and concise statement in a
narrative form of the facts admitted by both parties and of those in QUESTIONS THAT MAY BE RAISED ON APPEAL
controversy, together with the substance of the proof relating thereto in 1. QUESTIONS OF FACTS OR MIXED QUESTIONS OF FACTS
sufficient detail to make it clearly intelligible, with page references to the AND LAW
record;
(e) A clear and concise statement of the issues of fact or law to be submitted, Only questions of facts or mixed questions of facts and law.
to the court for its judgment; You do not raise pure questions of law.
(f) Under the heading "Argument," the appellant's arguments on each 2. ASSIGNED ERRORS
assignment of error with page references to the record. The authorities
relied upon shall be cited by the page of the report at which the case begins You cannot discuss those errors not assigned in the
and the page of the report on which the citation is found; appellant’s brief.
(g) Under the heading "Relief," a specification of the order or judgment which EXPT: CLOSELY RELATED ISSUES
the appellant seeks; and
(h) In cases not brought up by record on appeal, the appellant's brief shall However, the court may pass upon issues not specifically
contain, as an appendix, a copy of the judgment or final order appealed from. assigned as an error if they are closely related to the issues
(16a, R46)
assigned as errors in the case, the court may entertain them.
CONTENTS OF APPELLANT’S BRIEF
What are the contents of appellants brief?
1. subject index
2. statement of the case
3. statement of facts
4. statement of the matters involved
5. issues
6. arguments in support of the issues raised
7. relief prayed for
Section 14.Contents of appellee's brief. — The appellee's brief shall contain, in the
order herein indicated the following:
(a) A subject index of the matter in the brief with a digest of the arguments
and page references, and a table of cases alphabetically arranged, textbooks
and statutes cited with references to the pages where they are cited;
(b) Under the heading "Statement of Facts," the appellee shall state that he
accepts the statement of facts in the appellant's brief, or under the heading
"Counter-Statement of Facts," he shall point out such insufficiencies or
inaccuracies as he believes exist in the appellant's statement of facts with
references to the pages of the record in support thereof, but without
repetition of matters in the appellant's statement of facts; and
(c) Under the heading "Argument," the appellee shall set forth his arguments
in the case on each assignment of error with page references to the record.
The authorities relied on shall be cited by the page of the report at which the
case begins and the page of the report on which the citation is found. (17a,
R46)
CONTENTS OF APPELLEE’S BRIEF

In the case of the appellee’s brief, it’s the same.
You need not state the statement of facts because the
plaintiff already did that for you.
-IF AGREE
If you agree with his facts, you make such manifestation.
-IF NOT AGREE
If not, the appellee may file a COUNTER STATEMENT OF
FACTS; “due to the inaccuracies of the facts in the
appellant’s brief, appellee hereto presents the true facts of

Kwin
RULE 45 APPEAL BY CERTIORARI TO SC CERTIORARI UNDER RULE 45 VS CERTIORARI UNDER RULE 65
RULE 45 45: is mode of appeal
Appeal by Certiorari to the Supreme Court
Section 1.Filing of petition with Supreme Court. — A party desiring to appeal
65: is not an appeal but an original action
by certiorari from a judgment or final order or resolution of the Court of -because when the RTC decides an interlocutory issue,
Appeals, the Sandiganbayan, the Regional Trial Court or other courts you may question it under certiorari under rule 65. This is
whenever authorized by law, may file with the Supreme Court a verified
treated as an original action because you are asking it to
petition for review on certiorari. The petition shall raise only questions of law
which must be distinctly set forth. (1a, 2a exercise supervisory powers of the lower court, and
WHERE TO FILE correct the error of the latter.
You file it with SC. -there is no elevation of the records of the case. The
court will decide whether the court committed grave
MODE OF APPEAL FROM CA TO SC abuse of discretion amounting to lack or in excess of
GR: CERTIORARI UNDER RULE 45 discretion.
It is the only mode of appeal from decision of CA to SC.
Meaning if you appeal a decision of CA to SC, you only do it 45: nee not implead the judge as a respondent
through a petition for certiorari under rule 45. 65: must implead the judge as a respondent
EXPT:
1. DEATH PENALTY – AUTOMATIC REVIEW 45: MR is not required
Exception to this is in criminal cases where the court 65: requirement: file MR first
renders a penalty of death where there is an AUTOMATIC
REVIEW. 45: 15 days - period to appeal the decision of CA to SC
2. RECLUSION PERPETUA/LIFE IMPROSONMENT – ORDINARY 65: 60 days - period to file petition
APPEAL
In cases where trial court renders a penalty of reclusion Section 2.Time for filing; extension. — The petition shall be filed within fifteen
(15) days from notice of the judgment or final order or resolution appealed
perpetua or life imprisonment, you may APPEAL TO SC BY from, or of the denial of the petitioner's motion for new trial or
ORDINARY APPEAL not by petition for review. reconsideration filed in due time after notice of the judgment. On motion
duly filed and served, with full payment of the docket and other lawful fees
and the deposit for costs before the expiration of the reglementary period,
QUESTION THAT MAY BE RAISED the Supreme Court may for justifiable reasons grant an extension of thirty
GR: PURE QUESTIONS OF LAW (30) days only within which to file the petition. (1a, 5a)
Only question of law from RTC, CTA and Ca are appealable
by way of petition for certiorari. TIME FOR FILING; EXTENSION
-QUESTION OF FACT You may ask for extension for filing the petition, court may
When the question involves a calibration of the evidences give you until 30 days.
presented by the parties to determine the truth, that is a
question of fact. Section 3.Docket and other lawful fees; proof of service of petition. — Unless he has
theretofore done so, the petitioner shall pay the corresponding docket and
-QUESTION OF LAW other lawful fees to the clerk of court of the Supreme Court and deposit the
A question of law involves the: amount of P500.00 for costs at the time of the filing of the petition. Proof of
a. correct application of law service of a copy, thereof on the lower court concerned and on the adverse
party shall be submitted together with the petition. (1a)
b. how the law is to be interpreted of construed
These are the only questions you can elevate to SC DOCKET FEE
EXPT: EXCEPTIONS BY SC Pay docket fee in SC.
However in some cases, the SC have made exceptions.
Findings of facts of the CA may be reviewed by SC under
the following cases:
1. When it finds that the conclusion of the CA is grounded
entirely on speculations
2. When inference made is manifestly mistaken
3. Grave abuse of discretion in the appreciation of facts
4. Judgment is based on misapprehension of facts
5. When the findings of facts of CA are conflicting
6. When CA went beyond the issues of the case and is
contrary to the admissions of the parties
7. When the CA manifestly overlooks relevant facts not
disputed by the parties
8. When the findings of facts by the CA is contrary to those
of the trial court.

Kwin
Section 4.Contents of petition. — The petition shall be filed in eighteen (18) Section 7.Pleadings and documents that may be required; sanctions. — For purposes
copies, with the original copy intended for the court being indicated as such of determining whether the petition should be dismissed or denied pursuant
by the petitioner and shall (a) state the full name of the appealing party as to section 5 of this Rule, or where the petition is given due course under
the petitioner and the adverse party as respondent, without impleading the section 8 hereof, the Supreme Court may require or allow the filing of such
lower courts or judges thereof either as petitioners or respondents; (b) pleadings, briefs, memoranda or documents as it may deem necessary within
indicate the material dates showing when notice of the judgment or final such periods and under such conditions as it may consider appropriate, and
order or resolution subject thereof was received, when a motion for new trial impose the corresponding sanctions in case of non-filing or unauthorized
or reconsideration, if any, was filed and when notice of the denial thereof filing of such pleadings and documents or non-compliance with the
was received; (c) set forth concisely a statement of the matters involved, and conditions therefor. (n)
the reasons or arguments relied on for the allowance of the petition; (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 court of the PLEADINGS AND DOCUMENTS THAT MAY BE REQUIRED
court a quo and the requisite number of plain copies thereof, and such 1. COMMENT
material portions of the record as would support the petition; and (e) If the court gives due course to the petition, the court will
contain a sworn certification against forum shopping as provided in the last
paragraph of section 2, Rule 42. (2a)
require the respondent to file a comment.
2. REPLY
CONTENTS OF THE PETITION After the respondent files his comment, the court may
1. Full name of parties require the petitioner to file a reply.
2. Material dates We all know that the reply is not mandatory. But in the SC,
3. Statement of matters involved when you are required to file a reply, you must follow it. OW
4. Duplicate original copy of decision your petition may be dismissed on the ground of non
5. Certification of non forum sopping compliance of the order of the court.
3. MEMORANDA
Section 5.Dismissal or denial of petition. — The failure of the petitioner to The court may also require parties to submit their
comply with any of the foregoing requirements regarding the payment of the memorandum in support of their respective arguments.
docket and other lawful fees, deposit for costs, proof of service of the
petition, and the contents of and the documents which should accompany
the petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground Section 8.Due course; elevation of records. — If the petition is given due course,
that the appeal is without merit, or is prosecuted manifestly for delay, or the Supreme Court may require the elevation of the complete record of the
that the questions raised therein are too unsubstantial to require case or specified parts thereof within fifteen (15) days from notice. (2a)
consideration. (3a)
DUE COURSE; ELEVATION OF RECORDS
DISMISSAL OR DENIAL OF PETITION When the court gives doe course to your petition, it may
-OUTRIGHT DENIAL require the elevation of the records to SC.
In certiorari under rule 45, the Court may outrightly dismiss
the case Section 9.Rule applicable to both civil and criminal cases. — The mode of appeal
prescribed in this Rule shall be applicable to both civil and criminal cases,
Remember, it is not a matter of right but a matter of
except in criminal cases where the penalty imposed is death, reclusion
discretion of the case. Review of the case is discretionary on perpetua or life imprisonment. (n)
SC.
That is why it justifies the dismissal of the case in minute
resolution. SC need not follow the constitution that every
decision must contain statement of facts and statement of
case.
Section 6.Review discretionary. — A review is not a matter of right, but of sound

judicial discretion, and will be granted only when there are special and
important reasons thereof. The following, while neither controlling nor fully
measuring the court's discretion, indicate the character of the reasons which
will be considered:
(a) When the court a quo has decided a question of substance, not theretofore
determined by the Supreme Court, or has decided it in a way probably not in
accord with law or with the applicable decisions of the Supreme Court; or
(b) When the court a quo has so far departed from the accepted and usual
course of judicial proceedings, or so far sanctioned such departure by a
lower court, as to call for an exercise of the power of supervision. (4a)

Kwin
Rule 40-45: different modes of appeal PARTIES
Rule 46-54: procedures to be observed in CA The person who files is called the petitioner and the other
party is the respondent
RULE 46 ORIGINAL CASES
RULE 46 VERIFIED PEITION
Original Cases
You have to file a verified petition in CA
ORIGINAL ACTION IN CA
1. Petitions for certiorari, prohibition, mandamus and quo
CONTENTS OF VERIFIED PETITION
warranto
1. full name of the parties
2. Annulment of judgment or RTC (RULE 47)
2. statement of the matters involved
3. grounds relied upon by the petitioner
PETITION FOR HABEAS CORPUS
4. material dates
Habeas corpus is already excluded from the original action in
If the petition is a petition of certiorari, you must also
CA. Although they can be filed in the original action, they are
state the material dates.
excluded in the enumeration in rule 46 because habeas
Although it is not considered an appeal but an original
corpus falls under the different rules; rule on special
action in CA, observance of material data rule is still
proceedings.
important.
Section 1.Title of cases. — In all cases originally filed in the Court of Appeals,
So you include:
the party instituting the action shall be called the petitioner and the a. date of receipt of order of the court when you allege
opposing party the respondent. (1a) grave abuse of discretion
b. discretion when filed a petition for certiorari
Section 2.To what actions applicable. — This Rule shall apply to original actions
for certiorari, prohibition, mandamus and quo warranto. Section 4.Jurisdiction over person of respondent, how acquired. — The court shall
Except as otherwise provided, the actions for annulment of judgment shall be acquire jurisdiction over the person of the respondent by the service on him
governed by Rule 47, for certiorari, prohibition and mandamus by Rule 65, of its order or resolution indicating its initial action on the petition or by his
and for quo warranto by Rule 66. (n) voluntary submission to such jurisdiction. (n)
Section 3.Contents and filing of petition; effect of noncompliance with requirements. — JURISDICTION OVER THE PERSPN OF RESPONDENT
The petition shall contain the full names and actual addresses of all the When you file a petition, when does the court acquire
petitioners and respondents, a concise statement of the matters involved,
the factual background of the case, and the grounds relied upon for the relief
jurisdiction over the respondent?
prayed for. 1. SERVICE OF INITIAL ORDER OR INITIAL ACTION
In actions filed under Rule 65, the petition shall further indicate the material 2. VOLUNTARY SUBMISSION TO JURISDICTION
dates showing when notice of the judgment or final order or resolution
subject thereof was received, when a motion for new trial or From the moment the respondent receives a copy of the
reconsideration, if any, was filed and when notice of the denial thereof was courts initial order or initial action on the petition or by his
received. voluntary submission to jurisdiction
It shall be filed in seven (7) clearly legible copies together with proof of
service thereof on the respondent with the original copy intended for the Because when you file the petition, the CA may outrigtly
court indicated as such by the petitioner, and shall be accompanied by a dismiss the petition. Remember, it is not a matter of right.
clearly legible duplicate original or certified true copy of the judgment, When it finds it in form and substance, then the court will
order, resolution, or ruling subject thereof, such material portions of the
record as are referred to therein, and other documents relevant or pertinent issue a corresponding order to give due course to your
thereto. The certification shall be accomplished by the proper clerk of court petition. The respondent is required to file an answer or
or by his duly authorized representative, or by the proper officer of the comment. That is now the initial action of the CA.
court, tribunal, agency or office involved or by his duly authorized
representative. The other requisite number of copies of the petition shall be The moment you receive the order requiring you to
accompanied by clearly legible plain copies of all documents attached to the comment, that is the moment the CA acquires jurisdiction
original. over your person as a respondent.
The petitioner shall also submit together with the petition a sworn
certification that he has not theretofore commenced any other action In petitions filed before the CA as an original action, you
involving the same issues in the Supreme Court, the Court of Appeals or are given a copy. When the petitioner files a petition, he
different divisions thereof, or any other tribunal or agency; if there is such must furnish a copy to the respondent. But the respondent
other action or proceeding, he must state the status of the same; and if he
should thereafter learn that a similar action or proceeding has been filed or is should not file a reply right away. You wait if it will be
pending before the Supreme Court, the Court of Appeals, or different accepted by the court and is given due course. For all you
divisions thereof, or any other tribunal or agency, he undertakes to promptly know, the court will not give due course to the petition.
inform the aforesaid courts and other tribunal or agency thereof within five
(5) days therefrom.
The petitioner shall pay the corresponding docket and other lawful fees to the
clerk of court and deposit the amount of P500.00 for costs at the time of the
filing of the petition.
The failure of the petitioner to comply any of the requirements shall be
sufficient ground for the dismissal of the petition. (n; Bar Matter No. 803, 21
July 1998)

Kwin
Section 5.Action by the court. — The court may dismiss the petition outright RULE 47 ANNULMENT OF JUDGMENTS OF FINAL ORDERS
with specific reasons for such dismissal or require the respondent to file a
comment on the same within ten (10) days from notice. Only pleadings
AND RESOLUTIONS
required by the court shall be allowed. All other pleadings and papers, may RULE 47
be filed only with leave of court. (n) Annulment of Judgments of Final Orders and Resolutions
Section 1.Coverage. — This Rule shall govern the annulment by the Court of
Appeals of judgments or final orders and resolutions in civil actions of
ACTION BY THE COURT Regional Trial Courts for which the ordinary remedies of new trial, appeal,
1. DISMISS OUTRIGHT petition for relief or other appropriate remedies are no longer available
through no fault of the petitioner. (n)
2. REQUIRE COMMENT IN 10 DAYS
The court may dismiss the decision outright with specific
ORIGINAL AND EXCLUSIVE JURISDICTION OF CA
reasons for the dismissal or require the respondent to file
The annulment of judgment is one of the cases which falls
his comment to the same within 10 days.
under the original and exclusive jurisdiction of the CA.
3. CONDUCT/DELEGATE TO CONDUCT A HEARING
When CA need s to determine factual issues, it may
WHEN APPLICABLE
conduct a hearing or delegate the conduct of the hearing to
This rule applies to the annulment by CA of the final
an RTC judge in the place where the parties resides.
judgment or orders of RTC where other relief are no longer
Section 6.Determination of factual issues. — Whenever necessary to resolve
available, like appeal, petition for relief of judgment, and
factual issues, the court itself may conduct hearings thereon or delegate the other ordinary remedies.
reception of the evidence on such issue to any of its members or to an When can you file a petition for annulment of judgment of
appropriate court, agency or office. (n)
RTC?
When the judgment is final and executory and the period
Section 7.Effect of failure to file comment. — When no comment is filed by any of to file for relief of judgment is expired (>6 months).
the respondents, the case may be decided on the basis of the record, without
prejudice to any disciplinary action which the court may take against the
disobedient party. (n) Looking back, when the RTC decides a case, what are your
remedies?
EFFECT OF FAILURE TO FILE COMMENT Within 15 days you may appeal or file MR or MNT.
What is the effect of the respondent failed to file a comment? If the judgment has become final and executory, you may
The case may be decided on the basis of the records file petition for relief of judgment within 60 days from
without prejudice to any disciplinary action which the court knowledge of judgment but not exceeding 6 months from
may take against the disobedient party. entry of judgment.
In original actions filed in the CA, if you are required by CA If the 6th month has already expired, the last remedy is
to make an answer or comment, you are not compelled to annulment of the judgment
do it. But you may be cited in contempt of court.
The court may not declare you in default. The court may REQUIREMENT: NO FAULT OF YOUR OWN
proceed in deciding the case. But you may be declared in In your petition for the annulment of judgment of RTC must
contempt in court. state that you were not able to avail the remedies through
no fault of your own.

Kwin
Section 2.Grounds for annulment. — The annulment may be based only on the Section 4.Filing and contents of petition. — The action shall be commenced by
grounds of extrinsic fraud and lack of jurisdiction. filing a verified petition alleging therein with particularity the facts and the
Extrinsic fraud shall not be a valid ground if it was availed of, or could have law relied upon for annulment, as well as those supporting the petitioner's
been availed of, in a motion for new trial or petition for relief. (n) good and substantial cause of action or defense, as the case may be.
The petition shall be filed in seven (7) clearly legible copies, together with
sufficient copies corresponding to the number of respondents. A certified
GROUNDS FOR ANNULMENT true copy of the judgment or final order or resolution shall be attached to the
1. Extrinsic fraud original copy of the petition intended for the court and indicated as such by
2. Lack of jurisdiction the petitioner.
The petitioner shall also submit together with the petition affidavits of
witnesses or documents supporting the cause of action or defense and a
EXTRINSIC FRAUD – ALLEGED IN THE PETITION sworn certification that he has not theretofore commenced any other action
IOW you were not able to participate in the trial. You were involving the same issues in the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency if there is such
not able to appeal because of extrinsic fraud. other action or proceeding, he must state the status of the same, and if he
In several cases, SC said that if the ground is extrinsic fraud, should thereafter learn that a similar action or proceeding has been filed or is
you must allege in the petition that you were not able to pending before the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, he undertakes to promptly
avail of the remedies of new trial or appeal or petition for inform the aforesaid courts and other tribunal or agency thereof within five
relief from judgment through no fault of your own and it (5) days therefrom. (n)
was because of extrinsic fraud, CONTENTS OF PETITION
1. facts and law relied upon for the annulment
REQUIREMENT: STATE NO FAULT OF YOUR OWN 2. those supporting the petitioner’s good and substantial case
In your petition for the annulment of judgment of RTC must of action or defense
state that you were not able to avail the remedies through
no fault of your own. NUMBER OF COPIES FILED
EXPT: GROUND IS LACK OF JURISDICTION CA: 7
-Case: Ancheta vs Ancheta SC: 18
Husband filed a case to declare the marriage null and void
on the ground of psychological incapacity of his wife. Section 5.Action by the court. — Should the court find no substantial merit in
the petition, the same may be dismissed outright with specific reasons for
He filed a case against the wife under art 36 of FC. But he such dismissal.
intentionally placed the wrong address of the wife. The Should prima facie merit be found in the petition, the same shall be given due
summons was sent to the residence of the son. The son course and summons shall be served on the respondent. (n)
connived with the father. The court granted the declaration ACTION BY THE COURT
of nullity of marriage under psychologically incapacity. 1. OUTRIGHT DISMISSAL
It was only in 1 year that the wife knew that the marriage The court may outrightly dismiss the petition if it find no
was declared void. The lawyer filed for petition for merit on the decision, with specific reason for dismissal.
annulment of judgment on the ground of extrinsic fraud and 2. SERVE SUMMONS ON RESPONDENT
lack of jurisdiction of the court because of the improper Should prima facie merit be found in the petition, the same
service of summons. shall be given due course and summons shall be served on
The husband said it should be dismissed as it was defective the respondent.
because there was no allegation of the wife that she was not
Section 6.Procedure. — The procedure in ordinary civil cases shall be
able to avail of the remedy “through no fault of her own.” observed. Should trial be necessary, the reception of the evidence may be
SC said that that is true if the ground is extrinsic fraud. referred to a member of the court or a judge of a Regional Trial Court. (n)
But in petition for annulment of judgment, if the ground is PROCEDURE
lack of jurisdiction, it need not be explained. The non After summons is served, procedure in and ordinary civl
explanation is immaterial. action will be observed
Cases that are filed in CA as a n original action; petitions here
are not treated as a matter of right because CA can
Section 3.Period for filing action. — If based on extrinsic fraud, the action must outrightly dismiss the case it without even giving the other
be filed within four (4) years from its discovery; and if based on lack of
jurisdiction, before it is barred by laches or estoppel. (n) party/respondent the opportunity to say something, not like
in an ordinary civil action.
PERIOD OF FILING ACTION In an ordinary civil right, it is a matter of right that once the
When can you file the petition for annulment of judgment of complaint is filed, the court will have to issue summons and
RTC? the defendant will have to file his answer.
It depends on the ground: But in the original action in CA: petition for certiorari,
1. extrinsic fraud: 4 years from discovery prohibition, mandamus, quo warranto and petition for
2. lack of jurisdiction: anytime before it is barred by annulment of judgment, the court may outrightly dismiss
laches and estoppel the case, or give due course to the petition, then issue
summons.

Kwin
Once summons is issued, then the procedures in an ordinary RULE 48 PRELIMINARY CONFERENCE
civil action will be observed. RULE 48
Preliminary Conference
Section 7.Effect of judgment. — A judgment of annulment shall set aside the
questioned judgment or final order or resolution and render the same null Section 1.Preliminary conference. — At any time during the pendency of a case,
and void, without prejudice to the original action being refiled in the proper the court may call the parties and their counsel to a preliminary conference.
court. However, where the judgment or final order or resolution is set aside (a) To consider the possibility of an amicable settlement, except when the
on the ground of extrinsic fraud, the court may on motion order the trial case is not allowed by law to be compromised
court to try the case as if a timely motion for new trial had been granted (b) To define, simplify and clarify the issues for determination;
therein. (n) (c) To formulate stipulations of facts and admissions of documentary
exhibits, limit the number of witnesses to be presented in cases falling
within the original jurisdiction of the court, or those within its appellate
EFFECT OF JUDGMENT jurisdiction where a motion for new trial is granted on the ground of newly
-ORDER OR RESOLUTIONIS VOID discovered evidence; and
(d) To take up such other matters which may aid the court in the prompt
A judgment of annulment shall set aside the questioned disposition of the case. (Rule 7, CA Internal Rules) (n)
judgment or final order or resolution and render the same
null and void PRELIMINARY CONFERENCE
-CASE MAY BE REFILED -SIMILAR TO PRETRIAL
When the CA grants the annulment of the judgment, of This similar to pre trial in the trial courts. In the CA, we
RTC, the case can be refilled PVDD that the prescriptive have preliminary conference.
period has not yet prescribed. And the purpose of preliminary conference is the same as
that of the pretrial in trial court.
GR: TIME TO RENDER JUDGMENT ANNULLING THE DECISION
TOLLS THE RUNNING OF THE PRESCRIPTIVE PERIOD Section 2.Record of the conference. — The proceedings at such conference shall
The period from the time the original action is filed up to be recorded and, upon the conclusion thereof, a resolution shall be issued
embodying all the actions taken therein, the stipulations and admissions
the time the CA renders judgment annulling the decision made and the issues defined. (n)
shall be excluded in the computation of the prescriptive
period. Section 3.Binding effect of the results of the conference. — Subject to such
EXPT: PLAINTIFF IS GUILTY OF EXTRINSIC FRAUD modifications which may be made to prevent manifest injustice, the
resolution in the preceding section shall control the subsequent proceedings
Except it was the plaintiff who filed the complaint and is in the case unless, within five (5) days from notice thereof, any party shall
guilty of extrinsic fraud. satisfactorily show valid cause why the same should not be followed. (n)
IOW the period that the case was pending in court shall not
be counted in favor of the plaintiff if he is the one guilty of RULE 49 ORAL ARGUMENT
extrinsic fraud. RULE 49
Oral Argument
Section 8.Suspension prescriptive period. — The prescriptive period for the
refiling of the aforesaid original action shall be deemed suspended from the Section 1.When allowed. — At its own instance or upon motion of a party, the
filing of such original action until the finality of the judgment of annulment. court may hear the parties in oral argument on the merits of a case, or on any
However, the prescriptive period shall not be suspended where the material incident in connection therewith. (n)
extrinsic-fraud is attributable to the plaintiff in the original action. (n) The oral argument shall be limited to such matters as the court may specify in
its order or resolution. (1a, R48)
Section 9.Relief available. — The judgment of annulment may include the Section 2.Conduct of oral argument. — Unless authorized by the court, only one
award of damages, attorney's fees and other relief. counsel may argue for a party. The duration allowed for each party, the
If the questioned judgment or final order or resolution had already been sequence of the argumentation, and all other related matters shall be as
executed the court may issue such orders of restitution or other relief as directed by the court. (n)
justice and equity may warrant under the circumstances. (n)
Section 3.No hearing or oral argument for motions. — Motions shall not be set for
Section 10.Annulment of judgments or final orders of Municipal Trial Courts. — An hearing and, unless the court otherwise directs, no hearing or oral argument
action to annul a judgment or final order of a Municipal Trial Court shall be shall be allowed in support thereof. The adverse party may file objections to
filed in the Regional Trial Court having jurisdiction over the former. It shall the motion within five (5) days from service, upon the expiration of which
be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this such motion shall be deemed submitted for resolution. (29, R49)
Rule shall be applicable thereto. (n)
ORAL ARGUMENT
ANNULMENT OF DECISIONS OF MTC Court may require the parties to orally argue their case. But
Can the decisions of MTC also be annulled? this seldom happens.
YES. Annulment of the decisions of MTC may be annulled Mostly, the CA will decide right away on the basis of the
by RTC, applying by analogy these provisions. records and pleadings you file.

Kwin
RULE 50 DISMISSAL OF APPEAL RULE 51 JUDGMENT
RULE 50
Dismissal of Appeal RULE 51
Section 1.Grounds for dismissal of appeal. — An appeal may be dismissed by the Judgment
Court of Appeals, on its own motion or on that of the appellee, on the Section 1.When case deemed submitted for judgment. — A case shall be deemed
following grounds: submitted for judgment:
(a) Failure of the record on appeal to show on its face that the appeal was A. In ordinary appeals. —
taken within the period fixed by these Rules; 1) Where no hearing on the merits of the main case is held, upon the filing of
(b) Failure to file the notice of appeal or the record on appeal within the the last pleading, brief, or memorandum required by the Rules or by the
period prescribed by these Rules; court itself, or the expiration of the period for its filing.
(c) Failure of the appellant to pay the docket and other lawful fees as 2) Where such a hearing is held, upon its termination or upon the filing of the
provided in section 5, Rule 40 and section 4 of Rule 41; (Bar Matter No. 803, last pleading or memorandum as may be required or permitted to be filed by
17 February 1998) the court, or the expiration of the period for its filing.
(d) Unauthorized alterations, omissions or additions in the approved record B. In original actions and petitions for review. —
on appeal as provided in section 4 of Rule 44; 1) Where no comment is filed, upon the expiration of the period to comment.
(e) Failure of the appellant to serve and file the required number of copies of 2) Where no hearing is held, upon the filing of the last pleading required or
his brief or memorandum within the time provided by these Rules; permitted to be filed by the court, or the expiration of the period for its
(f) Absence of specific assignment of errors in the appellant's brief, or of page filing.
references to the record as required in section 13, paragraphs (a), (c), (d) and 3) Where a hearing on the merits of the main case is held, upon its
(f) of Rule 44; termination or upon the filing of the last pleading or memorandum as may
(g) Failure of the appellant to take the necessary steps for the correction or be required or permitted to be filed by the court, or the expiration of the
completion of the record within the time limited by the court in its order; period for its filing. (n)
(h) Failure of the appellant to appear at the preliminary conference under
Rule 48 or to comply with orders, circulars, or directives of the court WHEN CASE IS DEEMED SUBMITTED FOR JUDGMENT
without justifiable cause; and
(i) The fact that the order or judgment appealed from is not appealable. (1a) When after all the pleadings are submitted, then the case is
deemed submitted in a decision in CA.
GROUNDS FOR THE DISMISSAL OF AN APPEAL ARE Whether it is an original action or an appealed case.
DIRECTORY AND NOT MANDATORY
The CA may dismiss the appeal on the grounds stated above
Section 2.By whom rendered. — The judgment shall be rendered by the
Remember that the foregoing grounds for the dismissal of an members of the court who participated in the deliberation on the merits of
appeal are directory and not mandatory. the case before its assignment to a member for the writing of the decision.
(n)
So CA may give an exception.
Example. One of the grounds for the dismissal of appeal is
non payment of correct amount of docket fee. CA may be Section 3.Quorum and voting in the court. — The participation of all three
lenient on this and may just require the parties to add an Justices of a division shall be necessary at the deliberation and the
amount to complete the payment of the docket fee. unanimous vote of the three Justices shall be required for the
pronouncement of a judgment or final resolution. If the three justices do not
Example. Another one is that when you file an appellant’s reach a unanimous vote, the clerk shall enter the votes of the dissenting
brief, you make discussion of errors. In the discussion of the Justices in the record. Thereafter, the Chairman of the division shall refer the
case, together with the minutes of the deliberation, to the Presiding Justice
assignment of errors, you make reference to the records of who shall designate two Justices chosen by raffle from among all the other
the case in order to guide the justices of CA in deciding the members of the court to sit temporarily with them, forming a special
case. division of five Justices. The participation of all the five members of the
special division shall be necessary for the deliberation required in section 2
EXPT: PERFECTION OF APPEAL ON TIME of this Rule and the concurrence of a majority of such division shall be
These grounds are not mandatory but directly except required for the pronouncement of a judgment or final resolution. (2a)
perfection of appeal on time.
HOW TO RENDER JUDGMENT
Section 2.Dismissal of improper appeal to the Court of Appeals. — An appeal under -UNANIMOUS VOTES OF 3 IN THE DIVISION
Rule 41 taken from the Regional Trial Court to the Court of Appeals raising
only questions of law shall be dismissed, issues purely of law not being Normally, it is decided by the division composed of 3
reviewable by said court. Similarly, an appeal by notice of appeal instead of justices. There must be a unanimous vote.
by petition for review from the appellate judgment of a Regional Trial Court If one of the 3 justices will disagree and make a dissenting
shall be dismissed. (n)
An appeal erroneously taken to the Court of Appeals shall not be transferred opinion then there is no decision. The chairman of that
to the appropriate court but shall be dismissed outright. (3a) division will refer the matter to the presiding justice and the
presiding justice will appoint by raffle two additional
DISMISSAL OF IMPROPER APPEAL TO CA justices belonging in another decision to join the 3 others.
The rules have been simplified now. When you make and -MAJORITY VOTE OF 5 IN THE SPECIAL DIVISION
improper appeal, the CA may no longer refer it to the proper So they will now be considered a special division of 5, and
court. Your appeal will have to be dismissed outrightly if you majority vote is required, no longer unanimous.
make an improper or the wrong mode of appeal. -NO EN BANC DECISION
There is no decision en banc.
Section 3.Withdrawal of appeal. — An appeal may be withdrawn as of right at
They only do that in internal matters like rules and
any time before the filing of the appellee's brief. Thereafter, the withdrawal procedures for CA
may be allowed in the discretion of the court. (4a)

Kwin
Section 4.Disposition of a case. — The Court of Appeals, in the exercise of its RULE 52 MOTION FOR RECONSIDERATION
appellate jurisdiction, may affirm, reverse, or modify the judgment or final
order appealed from, and may direct a new trial or further proceedings to be RULE 52
had. (3a) Motion for Reconsideration
Section 1.Period for filing. — A party may file a motion for reconsideration of a
judgment or final resolution within fifteen (15) days from notice thereof,
Section 5.Form of decision. — Every decision or final resolution of the court in with proof of service on the adverse party. (n)
appealed cases shall clearly and distinctly state the findings of fact and the
conclusions of law on which it is based, which may be contained in the Section 2.Second motion for reconsideration. — No second motion for
decision or final resolution itself, or adopted from those set forth in the reconsideration of a judgment or final resolution by the same party shall be
decision, order, or resolution appealed from. (Sec. 40, BP Blg. 129) (n) entertained. (n)
Section 3.Resolution of motion. — In the Court of Appeals, a motion for

reconsideration shall be resolved within ninety (90) days from the date
Section 6.Harmless error. — No error in either the admission or the exclusion when the court declares it submitted for resolution. (n)
of evidence and no error or defect in any ruling or order or in anything done
or omitted by the trial court or by any of the parties is ground for granting a Section 4.Stay of execution. — The pendency of a motion for reconsideration
new trial or for setting aside, modifying, or otherwise disturbing a judgment filed on time and by the proper party shall stay the execution of the
or order, unless refusal to take such action appears to the court inconsistent judgment or final resolution sought to be reconsidered unless the court, for
with substantial justice. The court at every stage of the proceeding must good reasons, shall otherwise direct. (n)
disregard any error or defect which does not affect the substantial rights of
the parties. (5a) RULE 53 NEW TRIAL
RULE 53
New Trial
Section 7.Judgment where there are several parties. — In all actions or proceedings, Section 1.Period for filing; ground. — At any time after the appeal from the lower
an appealed judgment may be affirmed as to some of the appellants, and court has been perfected and before the Court of Appeals loses jurisdiction
reversed as to others, and the case shall thereafter be proceeded with, so far over the case, a party may file a motion for a new trial on the ground of
as necessary, as if separate actions had been begun and prosecuted, and newly discovered evidence which could not have been discovered prior to
execution of the judgment of affirmance may be had accordingly, and costs the trial in the court below by the exercise of due diligence and which is of
may be adjudged in such cases, as the court shall deem proper. (6) such a character as would probably change the result. The motion shall be
accompanied by affidavits showing the facts constituting the grounds
therefor and the newly discovered evidence. (1a)
Section 2.Hearing and order. — The Court of Appeals shall consider the new
Section 8.Questions that may be decided. — No error which does not affect the evidence together with that adduced at the trial below, and may grant or
jurisdiction over the subject matter or the validity of the judgment appealed refuse a new trial, or may make such order, with notice to both parties, as to
from or the proceedings therein will be considered unless stated in the the taking of further testimony, either orally in court, or by depositions, or
assignment of errors, or closely related to or dependent on an assigned error render such other judgment as ought to be rendered upon such terms as it
and properly argued in the brief, save as the court may pass upon plain may deem just. (2a)
errors and clerical errors. (7a) Section 3.Resolution of motion. — In the Court of Appeals, a motion for new
trial shall be resolved within ninety (90) days from the date when the court
declares it submitted for resolution. (n)
Section 9.Promulgation and notice of judgment. — After the judgment or final Section 4.Procedure in new trial. — Unless the court otherwise directs, the
resolution and dissenting or separate opinions, if any, are signed by the procedure in the new trial shall be the same as that granted by a Regional
Justices taking part, they shall be delivered for filing to the clerk who shall Trial Court. (3a)
indicate thereon the date of promulgation and cause true copies thereof to
be served upon the parties or their counsel. (n)
WHEN MAY FILE MR/MNT
Section 10.Entry of judgments and final resolutions. — If no appeal or motion for
new trial or reconsideration is filed within the time provided in these Rules, MR will also apply in CA. You can file MR/MNT before the CA
the judgment or final resolution shall forthwith be entered by the clerk in would render a decision.
the book of entries of judgments. The date when the judgment or final
resolution becomes executory shall be deemed as the date of its entry. The RULE 54 INTERNAL BUSINESS
record shall contain the dispositive part of the judgment or final resolution
RULE 54
and shall be signed by the clerk, with a certificate that such judgment or
Internal Business
final resolution has become final and executory. (2a, R36)
Section 1.Distribution of cases among divisions. — All the cases of the Court of
Section 11.Execution of judgment. — Except where the judgment or final order or
Appeals shall be allotted among the different divisions thereof for hearing
resolution, or a portion thereof, is ordered to be immediately executory, the
motion for its execution may only be filed in the proper court after its entry. and decision. The Court of Appeals, sitting en banc, shall make proper orders
In original actions in the Court of Appeals, its writ of execution shall be or rules to govern the allotment of cases among the different divisions, the
constitution of such divisions, the regular rotation of Justices among them,
accompanied by a certified true copy of the entry of judgment or final
the filing of vacancies occurring therein, and other matters relating to the
resolution and addressed to any appropriate officer for its enforcement.
business of the court; and such rules shall continue in force until repealed or
In appealed cases, where the motion for execution pending appeal is filed in
altered by the Supreme Court. (1a)
the Court of Appeals at a time that it is in possession of the original record
or the record on appeal, the resolution granting such motion shall be
transmitted to the lower court from which the case originated, together Section 2.Quorum of the court. — A majority of the actual members of the court
with a certified true copy of the judgment or final order to be executed, with shall constitute a quorum for its sessions en banc. Three members shall
a directive for such court of origin to issue the proper writ for its constitute a quorum for the sessions of a division. The affirmative votes of the
enforcement. (n) majority of the members present shall be necessary to pass a resolution of
the court en banc. The affirmative votes of three members of a division shall
be necessary for the pronouncement of a judgment or final resolution, which
shall be reached in consultation before the writing of the opinion by any
member of the division. (Sec. 11, first par. of BP Blg. 129, as amended by Sec. 6
of EO 33). (3a)

Kwin
RULE 55 PUBLICATIONS OF JUDGMENTS AND FINAL PROCEDURE IN THE SUPREME COURT
RESOLUTIONS RULE 56 A. ORIGINAL CASES
RULE 55
Publications of Judgments and Final Resolutions Procedure In The Supreme Court
RULE 56
Section 1.Publication. — The judgments and final resolutions of the court shall A. Original Cases
be published in the Official Gazette and in the Reports officially authorized
by the court in the language in which they have been originally written, Section 1.Original cases cognizable. — Only petitions for certiorari,
together with the syllabi therefor prepared by the reporter in consultation prohibition, mandamus, quo warranto, habeas corpus, disciplinary proceedings
with the writers thereof. Memoranda of all other judgments and final against members of the judiciary and attorneys, and cases affecting
resolutions not so published shall be made by the reporter and published in ambassadors, other public ministers and consuls may be filed originally in
the Official Gazette and the authorized reports. (1a) the Supreme Court. (n)
Section 2.Preparation of opinions for publication. — The reporter shall prepare ORIGINAL CASES
and publish with each reported judgment and final resolution a concise
synopsis of the facts necessary for a clear understanding of the case, the 1. petitions for certiorari, prohibition, mandamus, quo
names of counsel, the material and controverted points involved, the warranto, habeas corpus
authorities cited therein, and a syllabus which shall be confined to points of 2. disciplinary proceedings against members of the judiciary
law. (Sec. 22a, R.A. No. 296) (n)
and attorneys
Section 3.General make-up of volumes. — The published decisions and final 3. cases affecting ambassadors, other public ministers and
resolutions of the Supreme Court shall be called "Philippine Reports," while consuls
those of the Court of Appeals shall be known as the "Court of Appeals
Reports." Each volume thereof shall contain a table of the cases reported and
the cases cited in the opinions, with a complete alphabetical index of the
subject matters of the volume. It shall consist of not less than seven hundred Section 2.Rules applicable. — The procedure in original cases for certiorari,
pages printed upon good paper, well bound and numbered consecutively in prohibition, mandamus, quo warranto and habeas corpus shall be in accordance
the order of the volumes published. (Sec. 23a, R.A. No. 296) (n) with the applicable provisions of the Constitution, laws, and Rules 46, 48,
49, 51, 52 and this Rule, subject to the following provisions:
a) All references in said Rules to the Court of Appeals shall be understood to
also apply to the Supreme Court;
b) The portions of said Rules dealing strictly with and specifically intended
for appealed cases in the Court of Appeals shall not be applicable; and
c) Eighteen (18) clearly legible copies of the petition shall be filed, together
with proof of service on all adverse parties.
The proceedings for disciplinary action against members of the judiciary shall
be governed by the laws and Rules prescribed therefor, and those against
attorneys by Rules 139-B, as amended. (n)
PROCEDURE
The procedure shall be in accordance with the provision of
the constitution, laws, and Rules 46, 48, 49, 51, 52

Kwin
RULE 56 B. APPEALED CASES Section 7.Procedure if opinion is equally divided. — Where the court en banc is
equally divided in opinion, or the necessary majority cannot be had, the case
B. Appealed Cases shall again be deliberated on, and if after such deliberation no decision is
Section 3.Mode of appeal. — An appeal to the Supreme Court may be taken reached, the original action commenced in the court shall be dismissed, in
only by a petition for review on certiorari, except in criminal cases appealed cases, the judgment or order appealed from shall stand affirmed;
where the penalty imposed is death, reclusion perpetua or life and on all incidental matters, the petition or motion shall be denied.
imprisonment. (n)
PROCEDURE IF OPINION IS EQUALLY DIVIDED
MODE OF APPEAL – PETITION FOR REVIEW ON CERTIORAI – What is the effect if the justices of SC is equally divided?
RULE 45 There are 15 justices of SC and the justices en banc will have
EXPT: CRIMINAL CASES equal voting since one abstained
DECISION IS: They will redeliberate. If in the redeliberation, they will still
1. DEATH PENALTY – AUTOMATIC APPEAL have equal votes, then; if it is an original action filed in the
2. RECLUSION PERPETUA/LIFE IMPRISONMENT- ORDINARY SC, then the petition is deemed dismissed.
APPEAL If it is an appealed case, then the appealed decision coming
You appeal to SC by mere notice of appeal (ordinary from CA is deemed affirmed. The judgment or order
appeal) and then later on you file your appellant’s brief. appealed from stand affirmed. And on all incidental matters,
the petition or motion shall be denied.
Section 4.Procedure. — The appeal shall be governed by and disposed of in
accordance with the applicable provisions of the Constitution, laws, Rules
45, 48, sections 1, 2, and 5 to 11 of Rule 51, 52 and this Rule. (n)
Section 5.Grounds for dismissal of appeal. — The appeal may be

dismissed motuproprio or on motion of the respondent on the following
grounds:
(a) Failure to take the appeal within the reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other lawful fees or to make a
deposit for costs;
(d) Failure to comply with the requirements regarding proof of service and
contents of and the documents which should accompany the petition;
(e) Failure to comply with any circular, directive or order of the Supreme
Court without justifiable cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the Supreme Court. (n)
GROUNDS FOR DISMISSAL OF APPEAL

You read the grounds enumerated in this section.
Section 6.Disposition of improper appeal. — Except as provided in section 3, Rule
122 regarding appeals in criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment, an appeal taken to the Supreme
Court by notice of appeal shall be dismissed.
An appeal by certiorari taken to the Supreme Court from the Regional Trial
Court submitting issues of fact may be referred to the Court of Appeals for
decision or appropriate action. The determination of the Supreme Court on
whether or not issues of fact are involved shall be final. (n)
DISPOSITION OF IMPROPER APPEAL

The same with CA that if the appeal is improper, the Sc will
not anymore refer it to the proper court but may dismiss it
outright.


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REMEDIAL LAW – CIVIL PROCEDURES

-RULE MAKING POWER OF SC -WHAT COURT EXERCISES JUDICIAL POWER

SUBJECTS OF REMEDIAL LAW

2. SPECIAL PROCEEDINGS (72-109)

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4. CONSTITUTIONAL COURT and STATUTORY COURT

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Jurisdiction is derived from 2 Latin terms 2. ORIGINAL and APPELLATE

-ERROR OF JURISDICTION 4. DELEGATED JURISICTION

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2. JURISDICTION OVER THE PARTIES

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However TN that the ruling in Sibonghanoy is not the GR. It

3. JURISIDCTION OVER THE ISSUE OF THE CASE

4. JURISDICTION OVER THE RES

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-GR: QUESTION OF LAW II. ADMINISTRATIVE POWERS OF SC

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-COURT OF APPEALS: 69 MEMBERS (RA 8246)

II. EXCLUSIVE AND ORIGINAL JURISDICTION OF CA

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II. DELEGATED JURISDICTION

III. SPECIAL JURISDICTION

-RULE ON APPEAL ON DELEGATED OR SPECIAL

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MTC and MCTC – TOWN AND MUNIPAL COURTS

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An action can be an action in personal but also a real

-ORDINARY CIVIL ACTION VS SPECIAL PROCEEDINGS

OCA: 2 parties; plaintiff defendant

OCA: 15 days to appeal

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-RULES ON DETERMINING SINGLESS OF A CAUSE OF ACTION

2. A contract which provides for several stipulation to be

3. However all obligation which must have matured at the

4. If the failure to comply with one the several stipulations in a

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REPRESENTATIVE AS A PARTY PERMISSIVE JOINDER OF PARTIES

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RULE ON NON JOINDER OF A NECESSARY PARTY

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-EFFECT OF NON COMPLIANCE OF DUTY OF LAWYER

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This is the rule regarding the effect of death on the defendant

Section 17.Death or separation of a party who is a public officer. — When a public

DEATH OF PARTY TO CASE WHO IS A PUBLIC OFFICIAL

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-Case: Suitelines vs Teves

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When the civil case is filed, it is always commenced by a

PLEADINGS ALLOWED IN THE COURT

Section 3.Complaint. — The complaint is the pleading alleging the plaintiff's

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2. ANSWER Section 7.Compulsory counterclaim. — A compulsory counterclaim is one which,

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COMPULSORY CC vs PERMISSIVE CC A third party complaint is a claim of the defendant against