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ATTY. BRONDIAL NOTES ON REMEDIAL LAW REVIEW I 2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as
Civil Procedure the law or the Rules of Court may provide, final judgments and orders of
lower courts in:
a. All cases in which the constitutionality or validity of any treaty,
How do you distinguish residual jurisdiction from residual prerogative? international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.
What is residual jurisdiction? Jurisdiction of a court in spite losing its (Note: this is the exclusive original jurisdiction of the Supreme Court.)
jurisdiction because of the perfection of an appeal still retains it for
purposes of preserving the rights of the parties. b. All cases involving the legality of any tax, impost, assessment, or toll,
or any penalty imposed in relation thereto. (Note: This refers to SC‘s
A is the plaintiff and B is the defendant. Trial court ruled in favor B. A appellate jurisdiction. So this power to Review, Reverse, Revise, Modify
appeals. Before the records are transferred to the appellate court, the and Affirm is within the appellate powers of the jurisdiction of the
trial court retains jurisdiction. Supreme Court.)

How can that particular trial court exercise such jurisdiction? Can an c. All cases in which the jurisdiction of any lower court is in issue.
execution be granted ex parte? No. On what action can the trial court act
upon? Motion for execution pending appeal. Once appeal is perfected, d. All criminal cases in which the penalty imposed is reclusion perpetua
and the records of the case have been transmitted to the appellate court, or higher. (Note: The ―or higher‖ clause no longer applies because the
there is no more exercise of residual jurisdiction. But in case of death penalty is suspended)
execution as a matter of right, once jurisdiction is lost, it can never be
regained. Nonetheless, under Rule 39, the writ of execution can be e. All cases in which only an error or question of law is involved.
granted by the trial court only.
3. Assign temporarily judges of lower courts to other stations as public
How can the trial court, if it has already lost its jurisdiction, still exercise interest may require. Such temporary assignment shall not exceed six
the same? In the exercise of residual jurisdiction. months without the consent of the judge concerned.

What is residual prerogative? 4. Order a change of venue or place of trial to avoid a miscarriage of
There are 3 principles involved in concurrent jurisdiction:
5. Promulgate rules concerning the protection and enforcement of
1. Hierarchy of Courts; constitutional rights, pleading, practice, and procedure in all courts, the
2. Supreme Court is not a trier of facts; and admission to the practice of law, the integrated bar, and legal assistance
3. Transcendental Importance to the under-privileged. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be
General rule: Jurisdiction is conferred by law. uniform for all courts of the same grade, and shall not diminish, increase,
or modify substantive rights. Rules of procedure of special courts and
Exception: The jurisdiction of Supreme Court is conferred by the quasi-judicial bodies shall remain effective unless disapproved by the
Constitution. Supreme Court.

1987 Constitution, Article VIII, Section 5. The Supreme Court shall 6. Appoint all officials and employees of the Judiciary in accordance with
have the following powers: xxx the Civil Service Law.

Remedial Law Review I – Civil Procedure

―Review‖, ―Reverse‖, ―Revise‖, ―Modify‖ or ―Affirm‖ must be be a special civil action because it is appellate jurisdiction of the
defined separately and distinctly: Supreme Court.

1. Review – consists of Reverse, Revise, Modify or Affirm. The term In civil actions, you do not go to the Supreme Court by ordinary appeal.
review is a catch-all provision. Review means to take cognizance of In criminal actions, there is notice by appeal to the Supreme Court.
the decision, but does not cover resolution of the lower body. There is no more automatic appeal because of the removal of the death
Review means to look into. penalty, but it does not mean you can no longer appeal to the Supreme
Court. You can still do so by notice of appeal and when you speak of the
2. Reverse – overturn a favorable judgment to an unfavorable one or Constitution, it applies to both civil and criminal cases.
vice versa
Lourdes L. Eristingcol vs CA: Petitioner is an owner of a residential lot
3. Revise – revision, not a simple amendment in Urdaneta Village, Makati City. On the other hand, [respondent
Randolph] Limjoco, [Lorenzo] Tan and [June] Vilvestre were the former
4. Modify – modification or amendment president and chairman of the board of governors, construction
committee chairman and village manager of [Urdaneta Village
5. Affirm – accept the decision of the lower body Association Inc.] UVAI, respectively. UVAI is an association of
homeowners at Urdaneta Village.
―on appeal or certiorari‖ – to what kind of appeal is it referring to?
Petitioners action against UVAI, Limjoco, Tan and Vilvestre is founded
The word ―appeal‖ is by ordinary appeal. The word ―certiorari‖ is on the allegations that in compliance with the National Building Code
―appeal by certiorari‖ as a mode of appeal under Rule 45 because when and after UVAI‘s approval of her building plans and acceptance of the
you speak of ―review, revise, reverse, modify, or affirm‖ it is in the construction bond and architect‘s fee, Eristingcol started constructing a
exercise of appellate jurisdiction of the SC; it must have come from a house on her lot with ―concrete canopy directly above the main door and
lower court and not an original action under Rule 65 which is a special highway‖; that for alleged violation of its Construction Rules and
civil action and not a mode of appeal. Regulations (or ―CRR‖) on ―Set Back Line‖ vis-a-vis the canopy
easement, UVAI imposed on her a penalty of P400,000 and barred her
The modes of appeal under Rule 41 section 2 are: workers and contractors from entering the village and working on her
property; that the CRR, particularly on ―Set Back Line,‖ is contrary to
1. Ordinary Appeal; law; and that the penalty is unwarranted and excessive.
2. Petition for review; and
3. Appeal by certiorari The parties reached a temporary settlement whereby UVAI, Limjoco,
Tan and Vilvestre executed an undertaking which allowed Eristingcol‘s
But the kind of certiorari mentioned is a mode of appeal because when workers, contractors and suppliers to leave and enter the village, subject
you speak of Review, Reverse, Revise, Modify and Affirm, it is the only to normal security regulations of UVAI.
exercise of appellate jurisdiction.
UVAI, Limjoco, Tan and Vilvestre filed a motion to dismiss on ground of
How could it be an original action when it is certiorari? Certiorari there lack of jurisdiction over the subject matter of the action. They argued that
refers to Rule 65 because Rule 65 is a special civil action, it is not a it is the Home Insurance Guaranty Corporation (HIGC) which has
mode of appeal. jurisdiction over intra-corporate disputes involving homeowners
associations, pursuant to Exec. Order No. 535, Series of 1979, as
What is a mode of Appeal by certiorari? Rule 45. So the statement there amended by Exec. Order No. 90, Series of 1986.
on appeal—ordinary appeal or certiorari---appeal by certiorari---it cannot

Remedial Law Review I – Civil Procedure

Petitioner alleged, among others, that UVAI, Limjoco, Tan and Vilvestre its case for a final adjudication on the merits. Consequently, it was
did not comply with the mandatory provisions of Secs. 4 and 6, Rule 15 barred by laches from invoking the CFI‘s lack of jurisdiction.
of the 1997 Rules of Civil Procedure and are estopped from questioning
the jurisdiction of the RTC after they voluntarily appeared therein ―and To further highlight the distinction in this case, the TRO hearing was held
embraced its authority by agreeing to sign an Undertaking.‖ on February 9, 1999, a day after the filing of the complaint. On even
date, the parties reached a temporary settlement reflected in the
RTC denied the MTD holding that its jurisdiction may not be assailed Undertaking. 15 days thereafter, defendants, including Limjoco, filed a
―after they voluntarily entered their appearance, sought reliefs therein, MTD. Certainly, this successive and continuous chain of events cannot
and embraced its authority by agreeing to sign an undertaking to desist be characterized as laches as would bar defendants from questioning
from prohibiting (Eristingcol‘s) workers from entering the village.‖ It the RTC‘s jurisdiction.
applied the doctrine enunciated in Tijam v. Sibonghanoy. CA dismissed
the complaint for lack of jurisdiction. Duero vs CA: According to Duero, private respondent Bernardo Eradel
occupied Gabriel Duero‘s land in Surigao del Sur. As shown in the tax
Issue: declaration, the land had an assessed value of P5,240. Despite
Whether it is RTC or Housing and Land Use Regulatory Board (HLURB) repeated demands, Eradel refused to leave. Duero filed before the RTC
having jurisdiction over the subject matter of the complaint. a complaint for Recovery of Possession and Ownership against Eradel
and Apolinario and Inocencio Ruena. Duero and Ruenas executed a
Ruling: compromise agreement, stating that the Ruenas bound themselves to
HLURB. As regards the defendants‘ supposed embrace of the RTC‘s respect the ownership of Duero. Eradel was not a party to the
jurisdiction by appearing thereat and undertaking to desist from agreement, and he was declared in default for failure to file his answer to
prohibiting Eristingcol‘s workers from entering the village, suffice it to the complaint. Duero presented his evidence ex parte. RTC ruled in his
state that the invocation of the doctrine in Tijam, et al. v. Sibonghanoy, favor.
et al. is quite a long stretch.
Eradel filed a Motion for New Trial, alleging that he has been occupying
The factual milieu obtaining in Tijam and in this case are worlds apart. the land as a tenant of Artemio Laurente, Sr. He explained that he
As found by the CA, defendants‘ appearance before the RTC was turned over the complaint and summons to Laurente in the honest belief
pursuant to, and in compliance with, a subpoena issued by that court in that as landlord, the latter had a better right to the land and was
connection with petitioner‘s application for a TRO. On defendants‘ responsible to defend any adverse claim on it. However, RTC denied the
supposed agreement to sign the Undertaking allowing petitioner‘s motion for new trial.
workers, contractors, and suppliers to enter and exit the village, this
temporary settlement cannot be equated with full acceptance of the A RED Conflict Case, an administrative case between Duero and
RTC‘s authority, as what actually transpired in Tijam. applicant-contestants Romeo, Artemio and Jury Laurente, remained
pending with the Office of the Regional Director of the DENR in Davao
The landmark case of Tijam is, in fact, only an exception to the general City. It was forwarded to the DENR in Agusan del Sur. Duero filed before
rule that an objection to the court‘s jurisdiction over a case may be the RTC a Petition for Relief from Judgment, reiterating the same
raised at any stage of the proceedings, as the lack of jurisdiction affects allegation in his Motion for New Trial. He averred that unless there is a
the very authority of the court to take cognizance of a case. In that case, determination on who owned the land, he could not be made to vacate
the Surety filed a Motion to Dismiss before the CA, raising the question the land. Also, the judgment of the RTC was void inasmuch as the heirs
of lack of jurisdiction for the first time—15 years after the action was of Artemio, who are indispensable parties, were not impleaded. The
commenced in the CFI of Cebu. Indeed, in several stages of the grandchildren of Artemio who were claiming ownership of the land, filed
proceedings in the CFI, as well as in the CA, the Surety invoked the a Motion for Intervention. RTC denied the motion. RTC denied the
jurisdiction of said courts to obtain affirmative relief, and even submitted Petition for Relief from Judgment. In an MR, Duero alleged that the RTC
had no jurisdiction over the case, since the value of the land was only
Remedial Law Review I – Civil Procedure
P5,240 and therefore it was under the jurisdiction of the MTC. RTC Even if Eradel actively participated in the proceedings before said court,
denied the MR. the doctrine of estoppel cannot still be properly invoked against him
because the question of lack of jurisdiction may be raised at anytime and
Duero filed a Motion for Execution, which the RTC granted. Entry of at any stage of the action. As a general rule, the jurisdiction of a court is
Judgment was made of record and a writ of execution was issued by the not a question of acquiescence as a matter of fact, but an issue of
RTC. Duero filed his petition for certiorari before the CA. CA gave due conferment as a matter of law. Also, neither waiver nor estoppel shall
course to the petition, maintaining that Eradel is not estopped from apply to confer jurisdiction upon a court, barring highly meritorious and
assailing the jurisdiction of the RTC when Eradel filed with said court his exceptional circumstances.
MR And/Or Annulment of Judgment.
Estoppel must be applied only in exceptional cases, as its misapplication
Issue: could result in a miscarriage of justice. Duero filed his complaint before a
Whether private respondent was estopped from assailing the jurisdiction court without appropriate jurisdiction. Eradel, a farmer whose tenancy
of the RTC after he had filed several motions before it. status is still pending before the administrative agency, could have
moved for dismissal of the case on jurisdictional grounds. But the farmer
Ruling: could not be expected to know the nuances of jurisdiction and related
No. It was Duero who filed the complaint before the RTC, believing that issues. This farmer ought not to be penalized when he claims that he
the RTC had jurisdiction. RA 769117 amending BP 129 had already made an honest mistake when he initially submitted his motions before
become effective, such that jurisdiction already belongs not to the RTC the RTC, before he realized that the controversy was outside the RTC's
but to the MTC. Eradel, an unschooled farmer, in the mistaken belief that cognizance. To hold him in estoppel as the RTC did would amount to
since he was merely a tenant of the Artemio, his landlord, gave the foreclosing his avenue to obtain a proper resolution of his case. He
summons to a Hipolito Laurente, one of the heirs of Artemio, who did not would be evicted from the land prematurely, while RED Conflict Case
do anything about the summons. For failure to answer the complaint, would remain unresolved. Such eviction on a technicality if allowed could
Eradel was declared in default. He then filed a Motion for New Trial in result in an injustice, if it is later found that he has a legal right to till the
the RTC and explained that he defaulted because of his belief that the land he now occupies as tenant-lessee.
suit ought to be answered by his landlord. He stated that he had
evidence to prove that he had a better right than Duero because of his Gonzaga vs CA: Facts: In 1970, petitioners purchased a parcel of land
long, continuous and uninterrupted possession as bona-fide tenant- from private respondent Lucky Homes, Inc. The lot was specifically
lessee. But his motion was denied. He tried an alternative recourse. He denominated as Lot No. 19 and was mortgaged to SSS as security for
filed before the RTC a Motion for Relief from Judgment. RTC denied his their housing loan. Petitioners started the construction of their house on
motion, hence he moved for reconsideration of the denial. In his MR, he Lot No. 18, as private respondent mistakenly identified Lot No. 18 as Lot
raised for the first time the RTC's lack of jurisdiction. This motion was No. 19. Private respondent informed petitioners of such mistake but the
denied. Eradel raised the issue of lack of jurisdiction, not when the case latter offered to buy Lot No. 18 to widen their premises. Thus, petitioners
was already on appeal, but when the case, was still before the RTC that continued with the construction of their house. However, petitioners
ruled him in default, denied his motion for new trial and for relief from defaulted in the payment of their housing loan from SSS. Lot No. 19 was
judgment, and denied his 2 MRs. After RTC still refused to reconsider foreclosed by SSS and petitioners‘ certificate of title was cancelled and a
the denial of Eradel's motion for relief from judgment, it went on to issue new one was issued in the name of SSS. After Lot No. 19 was
the order for entry of judgment and a writ of execution. foreclosed, petitioners offered to swap Lot Nos. 18 and 19 and
demanded from private respondent that their contract of sale be
The lack of jurisdiction of the court over an action cannot be waived by reformed and another deed of sale be executed with respect to Lot No.
the parties, or even cured by their silence, acquiescence or even by their 18, considering that their house was built therein. However, private
express consent. Further, a party may assail the jurisdiction of the court respondent refused. Thus, petitioners filed, on June 13, 1996, an action
over the action at any stage of the proceedings and even on appeal. for reformation of contract and damages with the RTC.
RTC should have declared itself barren of jurisdiction over the action.
Remedial Law Review I – Civil Procedure
On January 15, 1998, RTC dismissed the complaint for lack of merit. jurisdiction either of the subject matter of the action or of the parties was
RTC held that the reformation of instruments or the swapping of Lot 18 not important in such cases because the party is barred from such
and Lot 19 is no longer feasible considering that plaintiff is no longer the conduct not because the judgment or order of the court is valid and
owner of Lot 19, otherwise, defendant will be losing Lot 18 without any conclusive as an adjudication, but for the reason that such a practice
substitute therefore. Upon the other hand, plaintiff will be unjustly can not be tolerated –– obviously for reasons of public policy.‖
enriching himself having in its favor both Lot 19 which was earlier
mortgaged by him and subsequently foreclosed by SSS, as well as Lot A party‘s active participation in all stages of the case before the trial
18 where his house is presently standing. What plaintiff had bought from court, which includes invoking the court‘s authority to grant affirmative
the defendant is Lot 19 which parcel of land has been properly indicated relief, effectively estops such party from later challenging that same
in the instruments and not Lot 18 as claimed by the plaintiff. The court‘s jurisdiction.
contracts being clear and unmistakable, they reflect the true intention of
the parties, besides the plaintiff failed to assail the contracts on mutual It was petitioners themselves who invoked the jurisdiction of the RTC by
mistake, hence the same need no longer be reformed. instituting an action for reformation of contract against private
respondents. It appears that, in the proceedings before the trial court,
On June 22, 1998, a writ of execution was issued by the trial court. petitioners vigorously asserted their cause from start to finish. Not even
Thus, on September 17, 1998, petitioners filed an urgent motion to recall once did petitioners ever raise the issue of the court‘s jurisdiction during
writ of execution, alleging that RTC had no jurisdiction to try the case as the entire proceedings which lasted for 2 years. It was only after RTC
it was vested in the Housing and Land Use Regulatory Board (HLURB) rendered its decision and issued a writ of execution against them in
pursuant to PD 957 (The Subdivision and Condominium Buyers 1998 did petitioners first raise the issue of jurisdiction ─ and it was only
Protective Decree). Conformably, petitioners filed a new complaint because said decision was unfavorable to them. Petitioners thus
against private respondent with the HLURB. Likewise, on June 30, effectively waived their right to question the courts jurisdiction over the
1999, petitioner-spouses filed before the CA a petition for annulment of case they themselves filed.
judgment, on the ground that RTC had no jurisdiction to try and decide
the Civil Case. Petitioners should bear the consequence of their act. They cannot be
allowed to profit from their omission to the damage and prejudice of the
CA denied the petition for annulment of judgment, relying mainly on the private respondent. This Court frowns upon the undesirable practice of a
jurisprudential doctrine of estoppel as laid down in the case of Tijam vs. party submitting his case for decision and then accepting the judgment
Sibonghanoy. but only if favorable, and attacking it for lack of jurisdiction if not.

Issue: Whether or not the principle of estoppel may be applied even Public policy dictates that this Court must strongly condemn any double-
though RTC had no jurisdiction to decide the Civil Case. dealing by parties who are disposed to trifle with the courts by
deliberately taking inconsistent positions, in utter disregard of the
Ruling: Yes. While an order or decision rendered without jurisdiction is a elementary principles of justice and good faith. There is no denying that,
total nullity and may be assailed at any stage, active participation in the in this case, petitioners never raised the issue of jurisdiction throughout
proceedings in the court which rendered the order or decision will bar the entire proceedings in the trial court. Instead, they voluntarily and
such party from attacking its jurisdiction. As we held in the leading case willingly submitted themselves to the jurisdiction of said court. It is now
of Tijam vs. Sibonghanoy: ―A party may be estopped or barred from too late in the day for them to repudiate the jurisdiction they were
raising a question in different ways and for different reasons. Thus we invoking all along.
speak of estoppel in pais, or estoppel by deed or by record, and of
estoppel by laches. Xxx It has been held that a party cannot invoke the Escobal vs Garchitorena: Petitioner was conducting surveillance
jurisdiction of a court to secure affirmative relief against his opponent operations on drug trafficking at a beerhouse. He got involved in a
and, after obtaining or failing to obtain such relief, repudiate, or question shooting incident, resulting in the death of Rodney Nueca. An amended
that same jurisdiction x x x x [T]he question whether the court had Information was filed with the RTC charging petitioner with murder. RTC
Remedial Law Review I – Civil Procedure
preventively suspended petitioner from the service under PD No. 971, as petitioner‘s evidence, he was on official mission when the shooting
amended by PD 1847. General Headquarters of the PNP preventively occurred. RTC ordered the public prosecutor to file a Re-Amended
suspended the petitioner from the service until the case was terminated. Information and to allege that the offense charged was committed by the
Petitioner was arrested by virtue of a warrant issued by the RTC but he petitioner in the performance of his duties/functions or in relation to his
posted bail and was granted temporary liberty. Petitioner pleaded not office; and, conformably to R.A. No. 7975, to thereafter transmit the
guilty to the offense charged. Petitioner filed a Motion to Quash the same, as well as the complete records with the stenographic notes, to
Information alleging that as mandated by CA No. 408, in relation to the Sandiganbayan.
Section 1, PD No. 1822 and Section 95 of RA No. 6975, the court
martial, not the RTC, had jurisdiction over criminal cases involving PNP The Presiding Justice of the Sandiganbayan ordered the Executive Clerk
members and officers. of Court to return the records of Criminal Case to the court of origin.
Under P.D. No. 1606, as amended by R.A. No. 7975, the RTC retained
Pending the resolution of the motion, petitioner requested the Chief of jurisdiction over the case, considering that the petitioner had a salary
the PNP for his reinstatement. Under RA No. 6975, his suspension grade of ―23.‖ Furthermore, the prosecution had already rested its case
should last for only 90 days, and, having served the same, he should and the petitioner had commenced presenting his evidence in the RTC;
now be reinstated. Petitioner filed a motion in the RTC for the lifting of following the rule on continuity of jurisdiction, the latter court should
the order of suspension. RTC denied the motion. Trial proceeded, and continue with the case and render judgment therein after trial.
the prosecution rested its case. Petitioner presented his evidence. He
filed an MTC. Citing Republic v. Asuncion, he argued that since he Issue:
committed the crime in the performance of his duties, the Whether or not the Presiding Justice of the Sandiganbayan properly
Sandiganbayan had exclusive jurisdiction over the case. remanded the case to the RTC.

RTC denied the MTD. It, however, ordered the conduct of a preliminary Ruling:
hearing to determine whether or not the crime charged was committed Yes. The petitioner contends that when the amended information was
by the petitioner in relation to his office as a member of the PNP. The filed with the RTC on February 6, 1991, P.D. No. 1606 was still in effect.
prosecution manifested that it was no longer presenting any evidence in Under Section 4(a) of the decree, the Sandiganbayan had exclusive
connection with the petitioner‘s motion. Its evidence showed that the jurisdiction over the case against him as he was charged with homicide
petitioner did not commit the offense charged in connection with the with the imposable penalty of reclusion temporal, and the crime was
performance of his duties as a member of the Philippine Constabulary. committed while in the performance of his duties. He further asserts that
although P.D. No. 1606, as amended by P.D. No. 1861 and by R.A. No.
RTC declared that the petitioner committed the crime charged while not 7975 provides that crimes committed by members and officers of the
in the performance of his official function. RTC added that upon the PNP with a salary grade below ―27‖ committed in relation to office are
enactment of R.A. No. 7975, the issue had become moot and academic. within the exclusive jurisdiction of the proper RTC, the amendment thus
The amendatory law transferred the jurisdiction over the offense charged introduced by R.A. No. 7975 should not be applied retroactively. This is
from the Sandiganbayan to the RTC since the petitioner did not have a so, the petitioner asserts, because under Section 7 of R.A. No. 7975,
salary grade of ―27‖ as provided for in or by Section 4(a)(1), (3) thereof. only those cases where trial has not begun in the Sandiganbayan upon
RTC nevertheless ordered the prosecution to amend the Information the effectivity of the law should be referred to the proper trial court.
pursuant to the ruling in Republic v. Asuncion and R.A. No. 7975. The
amendment consisted in the inclusion of an allegation that the offense The private complainant agrees with the contention of the petitioner. In
charged was not committed by the petitioner in the performance of his contrast, the Office of the Special Prosecutor contends that the
duties/functions, nor in relation to his office. Presiding Justice of the Sandiganbayan acted in accordance with law
when he ordered the remand of the case to the RTC. It asserts that R.A.
The petitioner filed a MR of the order. He asserted that R.A. No. 7975 No. 7975 should be applied retroactively. Although the Sandiganbayan
could not be applied retroactively. RTC declared that based on the had jurisdiction over the crime committed by the petitioner when the
Remedial Law Review I – Civil Procedure
amended information was filed with the RTC, by the time it resolved In cases where none of the principal accused are occupying positions
petitioner‘s motion to dismiss on July 31, 1995, R.A. No. 7975 had corresponding to salary grade ―27‖ or higher, as prescribed in the said
already taken effect. Thus, the law should be given retroactive effect. RA No. 6758, or PNP officers occupying the rank of superintendent or
higher, or their equivalent, exclusive jurisdiction thereof shall be vested
The jurisdiction of the court over criminal cases is determined by the in the proper RTC, MeTC, MTC, and MCTC, as the case may be,
allegations in the Information or the Complaint and the statute in effect at pursuant to their respective jurisdiction as provided in BP Blg. 129.
the time of the commencement of the action, unless such statute
provides for a retroactive application thereof. The jurisdictional Under the law, even if the offender committed the crime charged in
requirements must be alleged in the Information. Such jurisdiction of the relation to his office but occupies a position corresponding to a salary
court acquired at the inception of the case continues until the case is grade below ―27,‖ the proper RTC or MTC, as the case may be, shall
terminated. have exclusive jurisdiction over the case. In this case, the petitioner was
a Police Senior Inspector, with salary grade ―23.‖ He was charged with
Under Section 4(a) of P.D. No. 1606 as amended by P.D. No. 1861, the homicide punishable by reclusion temporal. Hence, the RTC had
Sandiganbayan had exclusive jurisdiction in all cases involving the exclusive jurisdiction over the crime charged conformably to Sections 20
following: and 32 of BP Blg. 129, as amended by Section 2 of R.A. No. 7691.

(1) Violations of Republic Act No. 3019, as amended, otherwise The petitioner‘s contention that R.A. No. 7975 should not be applied
known as the Anti-Graft and Corrupt Practices Act, Republic Act No. retroactively has no legal basis. It bears stressing that R.A. No. 7975 is
1379, and Chapter II, Section 2, Title VII of the Revised Penal Code; a substantive procedural law which may be applied retroactively.

(2) Other offenses or felonies committed by public officers and Asia’s Emerging Dragon vs DOTC: Doctrines: There is no question as
employees in relation to their office, including those employed in to the jurisdiction of the RTC of Pasig City over the subject matter and
government-owned or controlled corporations, whether simple or parties in Civil Case No. 66213. The RTC can exercise original
complexed with other crimes, where the penalty prescribed by law is jurisdiction over cases involving the issuance of writs of certiorari,
higher than prision correccional or imprisonment for six (6) years, or a prohibition,mandamus, quo warranto, habeas corpus and
fine of P6,000.00 …. injunction. To recall, the Petition of AEDC before the RTC of Pasig City
was for the declaration of nullity of proceedings, mandamus and
However, for the Sandiganbayan to have exclusive jurisdiction injunction. The RTC of Pasig City likewise had jurisdiction over the
under the said law over crimes committed by public officers in parties, with the voluntary submission by AEDC and proper service of
relation to their office, it is essential that the facts showing the summons on the DOTC Secretary and the PBAC Chairman and
intimate relation between the office of the offender and the members.
discharge of official duties must be alleged in the Information. It is
not enough to merely allege in the Information that the crime charged Special rights granted to original proponent in public biddings.
was committed by the offender in relation to his office because that The special rights or privileges of an original proponent come into play
would be a conclusion of law.[22] The amended Information filed with only when there are other proposals submitted during the public bidding
the RTC against the petitioner does not contain any allegation showing of the infrastructure project. As can be gleaned from the plain language
the intimate relation between his office and the discharge of his duties. of the statutes and the IRR. The original proponent has: (1) the right to
Hence, the RTC had jurisdiction over the offense charged when on match the lowest or most advantageous proposal within 30 working days
November 24, 1995, it ordered the re-amendment of the Information to from note thereof, and (2) in the event that the original proponent is able
include therein an allegation that the petitioner committed the crime in to match the lowest or most advantageous proposal submitted, then it
relation to office. R.A. No. 7975 amending P.D. No. 1606 was already in has the right to be awarded the project. The second right or privilege is
effect and under Section 2 of the law: contingent upon the actual exercise by the original proponent of the first
right or privilege. Before the project could be awarded to the Original
Remedial Law Review I – Civil Procedure
proponent, he must have been able to match the lowest or most Because of these rulings, AEDC claims that, being the recognized and
advantageous proposal within the prescribed period. Hence, when the unchallenged original proponent of the NAIA IPT III Project, it has the
original proponent is able to timely matched the lowest or most exclusive, clear, and vested statutory right to the award thereof.
advantageous propos. With all things being equal, it shall enjoy
preference in the awarding of the infrastracture project. A petition for mandamus was filed by AEDC.

It is without question that in a situation where there’s no other Substantial Issue: AEDC is not entitled to a writ of mandamus, there
competitive bid submitted for the BOT project that the project would be being no specific, certain, and clear legal right to be enforced, nor duty
awarded to the original proponent thereof. However, when there are to be performed that is clearly and peremptorily enjoined by law or by
competitive bids submitted, the original proponent must be able to match reason of official station. While the Court may concede that AEDC, as
the most advantageous or lowest bid; only when it is able to do so will the original proponent, already expended resources in its preparation
the original proponent enjoy the preferential right to the award of the and negotiation of its unsolicited proposal, the mere fact thereof does
project over the other bidder. not entitle it to the instant award of the NAIA IPT III Project. AEDC was
It is already an established fact in AGAN V. PIATCO (2004) that aware that the said project would have to undergo public bidding, and
AC failed to match the more advantageous proposal submitted by there existed the possibility that another proponent may submit a more
PIATCO by the lime the 30-day working period expired on 28 November advantageous bid which it cannot match; in which case, the project shall
1996.8 and since it did not exercise its right to match the most be awarded to the other proponent and AEDC would then have no
advantageous proposal within the prescribed period, it cannot assert its means to recover the costs and expenses it already incurred on its
right to be awarded the project. unsolicited proposal. It was a given business risk that AEDC knowingly
Facts: AEDC submitted an unsolicited proposal (original proponent) to
the Government through the DOTC/[Manila International Airport Procedural Issues:
Authority (MIAA)] for the development of NAIA International Passenger Late filing
Terminal III (NAIA IPT III) under a build-operate-and-transfer The present claim of AEDC is rooted in the Decision of this Court
arrangement pursuant to RA 6957 as amended by RA 7718 (BOT Law). in Agan. However, AEDC filed the Petition at bar only 20 months after
the promulgation of the Decision in Agan on 5 May 2003. As the revised
The consortium composed of People's Air Cargo and Warehousing Co., Rules now stand, a petition for certiorari may be filed within 60 days from
Inc. (Paircargo), Phil. Air and Grounds Services, Inc. (PAGS) and notice of the judgment, order or resolution sought to be
Security Bank Corp. (Security Bank) (collectively, Paircargo Consortium) assailed. Reasonable time for filing a petition for mandamus should
also submitted their competitive proposal to the PBAC. PBAC awarded likewise be for the same period. The filing by the AEDC of its petition
the project to Paircargo. AEDC objected. for mandamus 20 months after its supposed right to the project arose is
evidently beyond reasonable time and negates any claim that the said
In Agan Case, SC rules that in view of the absence of the requisite petition for the extraordinary writ was the most expeditious and speedy
financial capacity of the Paircargo Consortium, predecessor of remedy available to AEDC.
respondent PIATCO, the award by the PBAC of the contract for the
construction, operation and maintenance of the NAIA IPT III is null and Res judicata
void. AEDC's Petition is that it is already barred by res judicata. AEDC
entered into a compromise agreement with the Government.
In Gingoyon Case, Government filed an expropriation case as regards
NAIA IPT III, which the Court granted. Because of the compromise agreement among the parties, there was
accordingly a judicial settlement of the controversy, and the Order, dated
30 April 1999, of the RTC of Pasig City was no less a judgment on the
merits which may be annulled only upon the ground of extrinsic
Remedial Law Review I – Civil Procedure
fraud. Thus, the RTC of Pasig City, in the same Order, correctly granted
the dismissal of Civil Case No. 66213 with prejudice. AEDC, however, b. The contracts further provide that upon the commencement of
invokes the purported pressure exerted upon it by then President operations at the NAIA IPT III, the Government shall cause the
Joseph E. Estrada, the alleged fraud committed by the DOTC, and closure of Ninoy Aquino International Airport Passenger Terminals I
paragraph 2 in the afore-quoted Joint Motion to Dismiss to justify the and II as international passenger terminals.
non-application of the doctrine of res judicata to its present Petition.
c. With respect to existing concession agreements between MIAA and
There is res judicata because: international airport service providers regarding certain services or
operations, the 1997 Concession Agreement and the ARCA
First, the Order of the RTC of Pasig City, dismissing Civil Case No. uniformly provide that such services or operations will not be carried
66213, was issued on 30 April 1999. The Joint Motion to Dismiss, over to the NAIA IPT III and PIATCO is under no obligation to
deemed a compromise agreement, once approved by the court is permit such carry over except through a separate agreement duly
immediately executory and not appealable. entered into with PIATCO.

Second, the Order of the RTC of Pasig City dismissing Civil Case No. d. With respect to the petitioning service providers and their
66213 pursuant to the Joint Motion to Dismiss filed by the parties employees, upon the commencement of operations of the NAIA IPT
constitutes a judgment on the merits. III, they allege that they will be effectively barred from providing
international airline airport services at the NAIA Terminals I and II
Third, there is no question as to the jurisdiction of the RTC of Pasig as all international airlines and passengers will be diverted to the
City over the subject matter and parties in Civil Case No. 66213. NAIA IPT III. The petitioning service providers will thus be
The RTC can exercise original jurisdiction over cases involving the compelled to contract with PIATCO alone for such services, with no
issuance of writs of certiorari, prohibition,mandamus, quo assurance that subsisting contracts with MIAA and other
warranto, habeas corpus and injunction. To recall, the Petition of international airlines will be respected.
AEDC before the RTC of Pasig City was for the declaration of nullity
of proceedings, mandamus and injunction. The RTC of Pasig City Respondent PIATCO further alleges that this Court is without jurisdiction
likewise had jurisdiction over the parties, with the voluntary to review the instant cases as factual issues are involved which this
submission by AEDC and proper service of summons on the DOTC Court is ill-equipped to resolve.
Secretary and the PBAC Chairman and members.
Moreover, PIATCO alleges that submission of this controversy to this
Lastly, there is, between Civil Case No. 66213 before the RTC of Pasig Court at the first instance is a violation of the rule on hierarchy of courts.
City and the Petition now pending before this Court, an identity of They contend that trial courts have concurrent jurisdiction with this Court
parties, of subject matter, and of causes of action. with respect to a special civil action for prohibition and hence, following
the rule on hierarchy of courts, resort must first be had before the trial
Agan vs PIATCO: The contract for the construction and operation for courts. Further, arbitration proceedings filed by PIATCO have already
the NAIA IPT III was awarded to PIATCO. Petitioners, who are commenced.
employees of service providers at the MIAA and NAIA Terminal I and II,
and service providers themselves, assail: Issue: Whether direct resort to the Supreme Court was a proper
a. the provisions in the 1997 Concession Agreement and the ARCA
which grant PIATCO the exclusive right to operate a commercial Ruling:
international passenger terminal within the Island of Luzon, except YES. The rule on hierarchy of courts will not also prevent this Court
those international airports already existing at the time of the from assuming jurisdiction over the cases at bar. The said rule may
execution of the agreement. be relaxed when the redress desired cannot be obtained in the
Remedial Law Review I – Civil Procedure
appropriate courts or where exceptional and compelling ambit of the powers of the City Council. Mayor signed and approved the
circumstances justify availment of a remedy within and calling for city ordinance.
the exercise of this Court’s primary jurisdiction. It is easy to discern
that exceptional circumstances exist in the cases at bar that call for the Issue:
relaxation of the rule. Both petitioners and respondents agree that these Whether or not the Liga properly filed the case directly with the Supreme
cases are of transcendental importance as they involve the construction Court.
and operation of the country‘s premier international airport. Moreover,
the crucial issues submitted for resolution are of first impression and Ruling:
they entail the proper legal interpretation of key provisions of the No. Although the instant petition is styled as a petition for certiorari, in
Constitution, the BOT Law and its Implementing Rules and Regulations. essence, it seeks the declaration by this Court of the unconstitutionality
Thus, considering the nature of the controversy before the Court, or illegality of the questioned ordinance and executive order. It, thus,
procedural bars may be lowered to give way for the speedy disposition partakes of the nature of a petition for declaratory relief over which this
of the instant cases. Court has only appellate, not original, jurisdiction. As such, this petition
must necessary fail, as this Court does not have original jurisdiction over
Liga ng mga Barangay vs Atienza: Liga is the national organization of a petition for declaratory relief even if only questions of law are involved.
all the barangays in the Philippines, which pursuant to Section 492 of RA
No. 7160 (LGC), constitutes the duly elected presidents of highly- Even granting arguendo that the present petition is ripe for the
urbanized cities, provincial chapters, the metropolitan Manila Chapter, extraordinary writ of certiorari, there is here a clear disregard of the
and metropolitan political subdivision chapters. hierarchy of courts. No special and important reason or exceptional and
compelling circumstance has been adduced by the petitioner or the
Section 493 of that law provides that ―the liga at the municipal, city, intervenor why direct recourse to this Court should be allowed.
provincial, metropolitan political subdivision, and national levels directly
elect a president, a vice-president, and 5 members of the board of This Court‘s original jurisdiction to issue a writ of certiorari (as well as of
directors.‖ All other matters not provided for in the law affecting the prohibition, mandamus, quo warranto, habeas corpus and injunction) is
internal organization of the leagues of LGUs shall be governed by their not exclusive, but is concurrent with the RTC and CA in certain cases.
respective constitution and by-laws, which must always conform to the
provisions of the Constitution and existing laws. Liga adopted and People v. Cuaresma: This concurrence of jurisdiction is not to be taken
ratified its own Constitution and By-laws to govern its internal as according to parties seeking any of the writs an absolute,
organization. Liga adopted and ratified its own Election Code. Liga came unrestrained freedom of choice of the court to which application therefor
out with its Calendar of Activities and Guidelines in the Implementation will be directed. There is after all a hierarchy of courts. That hierarchy is
of the Liga Election Code of 2002, setting the synchronized elections for determinative of the venue of appeals, and also serves as a general
highly urbanized city chapters, such as the Liga Chapter of Manila, determinant of the appropriate forum for petitions for the extraordinary
together with independent component city, provincial, and metropolitan writs. A becoming regard of that judicial hierarchy most certainly
chapters. indicates that petitions for the issuance of extraordinary writs against first
level (―inferior‖) courts should be filed with the RTC, and those against
Respondent City Council of Manila enacted Ordinance No. 8039, Series the latter, with the CA. A direct invocation of the SC‘s original jurisdiction
of 2002, providing for the election of representatives of the District to issue these writs should be allowed only when there are special and
Chapters in the City Chapter of Manila and setting the elections for both important reasons therefor, clearly and specifically set out in the petition.
chapters 30 days after the barangay elections. Liga sent respondent This is a policy necessary to prevent inordinate demands upon SC‘s
Mayor of Manila a letter requesting him that said ordinance be vetoed time and attention which are better devoted to those matters within its
considering that it encroached upon, or even assumed, the functions of exclusive jurisdiction, and to prevent further over-crowding of the Court‘s
the Liga through legislation, a function which was clearly beyond the docket.

Remedial Law Review I – Civil Procedure

Santiago v. Vasquez: the propensity of litigants and lawyers to disregard Sandiganbayan denied petitioner‘s motion for lack of merit. Accused-
the hierarchy of courts in our judicial system by seeking relief directly movant‘s claim that being merely a member in representation of the
from this Court must be put to a halt for two reasons: (1) it would be an student body, she was never a public officer since she never received
imposition upon the precious time of this Court; and (2) it would cause any compensation nor does she fall under Salary Grade 27, is of no
an inevitable and resultant delay, intended or otherwise, in the moment, in view of the express provision of Section 4 of RA No. 8249
adjudication of cases, which in some instances had to be remanded or which provides:
referred to the lower court as the proper forum under the rules of
procedure, or as better equipped to resolve the issues because this Sec. 4. Jurisdiction – The Sandiganbayan shall exercise exclusive
Court is not a trier of facts. original jurisdiction in all cases involving:

SC will not entertain direct resort to it unless the redress desired cannot (A) x x x (1) Officials of the executive branch occupying the positions of
be obtained in the appropriate courts, and exceptional and compelling regional director and higher, otherwise classified as Grade "27" and
circumstances justify the availment of the extraordinary remedy of writ of higher, of the Compensation and Position Classification Act of 1989
certiorari, calling for the exercise of its primary jurisdiction. Petitioner‘s (Republic Act No. 6758), specifically including:
reliance on Pimentel v. Aguirre is misplaced because the non-
observance of the hierarchy-of-courts rule was not an issue therein. x x x x (g) Presidents, directors or trustees, or managers of government-
Besides, what was sought to be nullified in the petition for certiorari and owned or controlled corporations, state universities or educational
prohibition therein was an act of the President, which would have greatly institutions or foundations.
affected all LGUs. When an act of the legislative department is seriously
alleged to have infringed the Constitution, settling the controversy Thus, Sandiganbayan has original exclusive jurisdiction over all offenses
becomes the duty of this Court. The same is true when what is seriously involving the officials enumerated in subsection (g), irrespective of their
alleged to be unconstitutional is an act of the President, who in our salary grades, because the primordial consideration in the inclusion of
constitutional scheme is coequal with Congress. these officials is the nature of their responsibilities and functions.

Hannah Serrana vs Sandiganbayan: Petitioner was a student of the Issue

UP-Cebu (government scholar) appointed by President Joseph Estrada Whether or not the Sandiganbayan may try a government scholaran**
as a student regent of UP, to serve a one-year term. Petitioner, with her accused, along with her brother, of swindling government funds.
siblings and relatives, registered with the SEC the Office of the Student
Regent Foundation, Inc. (OSRFI). One of the projects of the OSRFI was Ruling:
the renovation of the Vinzons Hall Annex. Estrada gave P15,000,000 to Yes. The jurisdiction of the Sandiganbayan is set by P.D. No. 1606, as
the OSRFI as financial assistance for the proposed renovation. The amended, not by R.A. No. 3019, as amended. R.A. No. 3019 is a penal
source of the funds was the Office of the President. The renovation of statute approved on August 17, 1960. The said law represses certain
Vinzons Hall Annex failed to materialize. The succeeding student regent acts of public officers and private persons alike which constitute graft or
filed a complaint for Malversation of Public Funds and Property with the corrupt practices or which may lead thereto. Pursuant to Section 10 of
Office of the Ombudsman. Ombudsman found probable cause to indict R.A. No. 3019, all prosecutions for violation of the said law should be
petitioner and her brother Jade Ian Serana for estafa. filed with the Sandiganbayan. R.A. No. 3019 does not contain an
enumeration of the cases over which the Sandiganbayan has
Petitioner moved to quash the information: (a) the Sandiganbayan has jurisdiction. In fact, Section 4 of R.A. No. 3019 erroneously cited by
no jurisdiction over estafa; (b) petitioner is not a public officer with Salary petitioner, deals not with the jurisdiction of the Sandiganbayan but with
Grade 27 and she paid her tuition fees; (c) the offense charged was not prohibition on private individuals. P.D. No. 1606, as amended, defines
committed in relation to her office; (d) the funds in question personally the jurisdiction of the Sandiganbayan while R.A. No. 3019, as
came from President Estrada, not from the government. amended, defines graft and corrupt practices and provides for their
Remedial Law Review I – Civil Procedure
the theories set up by defendant or respondent in an answer, a motion to
Petitioner UP student regent is a public officer. Petitioner claims that she dismiss, or a motion to quash. Otherwise, jurisdiction would become
is not a public officer with Salary Grade 27; she is, in fact, a regular dependent almost entirely upon the whims of defendant or respondent.
tuition fee-paying student. This is bereft of merit. It is not only the salary
grade that determines the jurisdiction of the Sandiganbayan. The The information alleged, in no uncertain terms that petitioner, being then
Sandiganbayan also has jurisdiction over other officers enumerated in a student regent of U.P., "while in the performance of her official
P.D. No. 1606. While the first part of Section 4(A) covers only officials functions, committing the offense in relation to her office and taking
with Salary Grade 27 and higher, its second part specifically includes advantage of her position, with intent to gain, conspiring with her brother,
other executive officials whose positions may not be of Salary Grade 27 JADE IAN D. SERANA, a private individual, did then and there wilfully,
and higher but who are by express provision of law placed under the unlawfully and feloniously defraud the government x x x."
jurisdiction of the said court. Petitioner falls under the jurisdiction of the
Sandiganbayan as she is placed there by express provision of law. Clarit Garcia vs Sandiganbayan: To recover unlawfully acquired funds
and properties in the amount of P143,052,015.29 that retired Maj. Gen.
Section 4(A)(1)(g) of P.D. No. 1606 explictly vested the Sandiganbayan Carlos F. Garcia, his wife, petitioner Clarita, children Ian Carl, Juan
with jurisdiction over Presidents, directors or trustees, or managers of Paulo and Timothy Mark had allegedly amassed and acquired, the
government-owned or controlled corporations, state universities or Republic, through the Office of the Ombudsman (OMB), pursuant to RA
educational institutions or foundations. Petitioner falls under this 1379, filed with the Sandiganbayan (SB) on October 29, 2004 a petition
category. As the Sandiganbayan pointed out, the BOR performs for the forfeiture of those properties. Civil Case No. 0193 was followed
functions similar to those of a board of trustees of a non-stock by the filing of another forfeiture case, docketed as Civil Case No. 0196,
corporation. By express mandate of law, petitioner is, indeed, a public this time to recover funds and properties amounting to P202,005,980.55.
officer as contemplated by P.D. No. 1606. Moreover, it is well Civil Case No. 0196 would eventually be raffled also to the Fourth
established that compensation is not an essential element of public Division of the SB. Civil Case No. 0193 shall be referred to as Forfeiture
office. At most, it is merely incidental to the public office. The I and Civil Case No. 0196 as Forfeiture II.
administration of the UP is a sovereign function in line with Article XIV of
the Constitution. UP performs a legitimate governmental function by Prior to the filing of Forfeiture II, but subsequent to the filing of Forfeiture
providing advanced instruction in literature, philosophy, the sciences, I, the OMB charged the Garcias and 3 others with violation of RA 7080
and arts, and giving professional and technical training. Moreover, UP is (plunder) under an Information dated April 5, 2005 which placed the
maintained by the Government and it declares no dividends and is not a value of the property and funds plundered at P303,272,005.99.
corporation created for profit. Docketed as Crim. Case No. 28107, the Information was raffled off to
the Second Division of the SB. The plunder charge, as the parties‘
The offense charged was committed in relation to public office, pleadings seem to indicate, covered substantially the same properties
according to the Information. Petitioner argues that even assuming that identified in both forfeiture cases.
she is a public officer, the Sandiganbayan would still not have
jurisdiction over the offense because it was not committed in relation to Issue 1:
her office. According to petitioner, she had no power or authority to act Whether or not SB 4 Division has jurisdiction over the subject matter of
without the approval of the BOR. She adds there was no Board Forfeitures I and II as both cases are covered or included in the plunder
Resolution issued by the BOR authorizing her to contract with then case against the Garcias.
Estrada; and that her acts were not ratified by the governing body of the
state university. Resultantly, her act was done in a private capacity and Ruling:
not in relation to public office. Yes, the plunder case did not absorb the forfeiture cases. Petitioner
claims that the filing of the main plunder case, with its automatic
It is axiomatic that jurisdiction is determined by the averments in the forfeiture mechanism in the event of conviction, ousted the SB 4th
information. More than that, jurisdiction is not affected by the pleas or Division of its jurisdiction over the subject matter of the forfeiture cases.
Remedial Law Review I – Civil Procedure
The inclusion of the forfeiture cases with the plunder case is necessary, other hand, all that the court needs to determine, by preponderance of
so petitioner claims, to obviate possible double jeopardy entanglements evidence, under RA 1379 is the disproportion of respondent‘s properties
and colliding case dispositions. Prescinding from these premises, to his legitimate income, it being unnecessary to prove how he acquired
petitioner would ascribe grave abuse of discretion on the SB 4th Division said properties. The forfeitable nature of the properties under the
for not granting its separate motions to dismiss the 2 forfeiture petitions provisions of RA 1379 does not proceed from a determination of a
and/or to consolidate them with the plunder case on the foregoing specific overt act committed by the respondent public officer leading to
ground. the acquisition of the illegal wealth.

Petitioner‘s posture respecting Forfeitures I and II being absorbed by the Given the foregoing considerations, petitioner‘s thesis on possible
plunder case, thus depriving the 4th Division of the SB of jurisdiction double jeopardy entanglements should a judgment of conviction ensue
over the civil cases, is flawed by the assumptions holding it together, the in Crim. Case 28107 collapses entirely. Double jeopardy, as a criminal
first assumption being that the forfeiture cases are the corresponding law concept, refers to jeopardy of punishment for the same offense,
civil action for recovery of civil liability ex delicto. As correctly ruled by suggesting that double jeopardy presupposes two separate criminal
the SB 4th Division in its May 20, 2005 Resolution, the civil liability for prosecutions. Proceedings under RA 1379 are, to repeat, civil in nature.
forfeiture cases does not arise from the commission of a criminal As a necessary corollary, one who is sued under RA 1379 may be
offense, thus: proceeded against for a criminal offense. Thus, the filing of a case
under that law is not barred by the conviction or acquittal of the
Such liability is based on a statute that safeguards the right of the State defendant in Crim. Case 28107 for plunder.
to recover unlawfully acquired properties. The action of forfeiture arises
when a ―public officer or employee [acquires] during his incumbency an Issue 2:
amount of property which is manifestly out of proportion of his salary x x Whether or not Sandiganbayan acquired jurisdiction over the persons of
x and to his other lawful income x x x.‖ Such amount of property is then petitioner and her children.
presumed prima facie to have been unlawfully acquired. Thus ―if the
respondent [public official] is unable to show to the satisfaction of the Ruling 2:
court that he has lawfully acquired the property in question, then the No. Petitioner argues that the SB did not acquire jurisdiction over her
court shall declare such property forfeited in favor of the State, and by person and that of her children due to a defective substituted service of
virtue of such judgment the property aforesaid shall become property of summons. Sec. 7, Rule 14 of the 1997 Revised Rules of Civil Procedure
the State. x x x clearly provides for the requirements of a valid substituted service of
summons, thus: SEC. 7. Substituted service.—If the defendant cannot
EO 14, Series of 1986, albeit defining only the jurisdiction over cases be served within a reasonable time as provided in the preceding section
involving ill-gotten wealth of former President Marcos, his immediate [personal service on defendant], service may be effected (a) by leaving
family and business associates, authorizes under its Sec. 3 the filing of copies of the summons at the defendant‘s residence with some person
forfeiture suits under RA 1379 which will proceed independently of any of suitable age and discretion then residing therein, or (b) by leaving the
criminal proceedings. The Court, in Republic v. Sandiganbayan, copies at defendant‘s office or regular place of business with some
interpreted this provision as empowering the Presidential Commission competent person in charge thereof.
on Good Government to file independent civil actions separate from the
criminal actions. A court must acquire jurisdiction over a party for the latter to be bound
by its decision or orders. Valid service of summons, by whatever mode
A forfeiture case under RA 1379 arises out of a cause of action separate authorized by and proper under the Rules, is the means by which a court
and different from a plunder case, thus negating the notion that the acquires jurisdiction over a person.
crime of plunder absorbs the forfeiture cases. In a prosecution for
plunder, what is sought to be established is the commission of the Summons for Forfeitures I and II were served personally on Maj. Gen.
criminal acts in furtherance of the acquisition of ill-gotten wealth. On the Carlos Flores Garcia, who is detained at the PNP Detention Center, who
Remedial Law Review I – Civil Procedure
acknowledged receipt thereof by affixing his signature. Substituted children) voluntary appearance in the forfeiture cases. The Republic
service of summons for both Forfeitures I and II were made on petitioner points to the various pleadings filed by petitioner and her children during
and her children through Maj. Gen. Garcia at the PNP Detention Center. the subject forfeiture hearings. We cannot subscribe to the Republic‘s
However, such substituted services of summons were invalid for being views.
irregular and defective.
Special appearance to question a court‘s jurisdiction is not voluntary
In Manotoc v. Court of Appeals, we broke down the requirements to be: appearance (Sec. 20, Rule 14). The pleadings filed by petitioner in the
subject forfeiture cases do not show that she voluntarily appeared
(1) Impossibility of prompt personal service, i.e., the party relying on without qualification. Petitioner filed the following pleadings in Forfeiture
substituted service or the sheriff must show that defendant cannot be I: (a) motion to dismiss; (b) motion for reconsideration and/or to admit
served promptly or there is impossibility of prompt service within a answer; (c) second motion for reconsideration; (d) motion to consolidate
reasonable time. Reasonable time being ―so much time as is necessary forfeiture case with plunder case; and (e) motion to dismiss and/or to
under the circumstances for a reasonably prudent and diligent man to quash Forfeiture I. And in Forfeiture II: (a) motion to dismiss and/or to
do, conveniently, what the contract or duty requires that should be done, quash Forfeiture II; and (b) motion for partial reconsideration.
having a regard for the rights and possibility of loss, if any[,] to the other
party.‖ Moreover, the sheriff must show several attempts for personal The foregoing pleadings, particularly the motions to dismiss, were filed
service of at least 3 times on at least 2 different dates. by petitioner solely for special appearance with the purpose of
challenging the jurisdiction of the SB over her person and that of her 3
(2) Specific details in the return, i.e., the sheriff must describe in the children. Petitioner asserts therein that SB did not acquire jurisdiction
Return of Summons the facts and circumstances surrounding the over her person and of her 3 children for lack of valid service of
attempted personal service. summons through improvident substituted service of summons in both
Forfeiture I and Forfeiture II. This stance the petitioner never abandoned
(3) Substituted service effected on a person of suitable age and when she filed her motions for reconsideration, even with a prayer to
discretion residing at defendant‘s house or residence; or on a competent admit their attached Answer Ex Abundante Ad Cautelam dated January
person in charge of defendant‘s office or regular place of business. 22, 2005 setting forth affirmative defenses with a claim for damages.
And the other subsequent pleadings, likewise, did not abandon her
From the foregoing requisites, it is apparent that no valid substituted stance and defense of lack of jurisdiction due to improper substituted
service of summons was made on petitioner and her children, as the services of summons in the forfeiture cases. Evidently, from the
service made through Maj. Gen. Garcia did not comply with the first 2 foregoing Sec. 20, Rule 14 of the 1997 Revised Rules on Civil
requirements mentioned above for a valid substituted service of Procedure, petitioner and her sons did not voluntarily appear before the
summons. Moreover, the third requirement was also not strictly SB constitutive of or equivalent to service of summons.
complied with as the substituted service was made not at petitioner‘s
house or residence but in the PNP Detention Center where Maj. Gen. Platinum Tours and Travel, Inc. vs Panlilio: Platinum filed a complaint
Garcia is detained, even if the latter is of suitable age and discretion. for a sum of money with damages against Pan Asiatic Travel
Hence, no valid substituted service of summons was made. Corporation (PATC) and its president Nelida Galvez. Platinum sought to
collect payment for the airline tickets which PATC bought from it. RTC of
The stringent rules on valid service of summons for the court to acquire Makati City, Branch 62, rendered a judgment by default in favor of
jurisdiction over the person of the defendants, however, admits of Platinum and ordered PATC and Galvez to solidarily pay Platinum. A
exceptions, as when the party voluntarily submits himself to the writ of execution was issued on motion of Platinum. Pursuant to the writ,
jurisdiction of the court by asking affirmative relief. In the instant case, Manila Polo Club Proprietary Membership Certificate in the name of
the Republic asserts that petitioner is estopped from questioning Galvez was levied upon and sold.
improper service of summons since the improvident service of summons
in both forfeiture cases had been cured by their (petitioner and her
Remedial Law Review I – Civil Procedure
Jose Panlilio filed a motion to intervene in the Civil Case claiming that No. Since jurisdiction is the power to hear and determine a particular
Galvez had executed in his favor a chattel mortgage over her shares of case, it does not depend upon the regularity of the exercise by the court
stock in the Manila Polo Club to secure her loan and that Galvez had of that power or on the correctness of its decisions.
already delivered to him the stock certificates. RTC denied Panlilio‘s
motion for intervention because (1) a decision had already been Panlilio‘s collection case falls within the jurisdiction of the RTC of Makati,
rendered in this case and that the only matters at issue is the propriety Branch 62. The fact that the CA subsequently annulled Judge Diokno‘s
of the execution; (2) it will only delay or prejudice the adjudication of the order granting the consolidation, did not affect the jurisdiction of the
rights of the original parties; and, (3) the Intervenor‘s rights may be fully court which issued the said order.
protected in a separate action.
―Jurisdiction‖ should be distinguished from the ―exercise of jurisdiction.‖
RTC declared the execution sale null and void due to irregularities in the Jurisdiction refers to the authority to decide a case, not the orders or the
conduct thereof. decision rendered therein. Accordingly, where a court has jurisdiction
over the person and the subject matter, as in the instant case, the
Panlilio filed against Galvez a collection case with application for a writ decision on all questions arising from the case is but an exercise of such
of preliminary attachment of the Manila Polo Club shares. The case was jurisdiction. Any error that the court may commit in the exercise of its
raffled to Branch 146 of the RTC of Makati City. Panlilio again attempted jurisdiction is merely an error of judgment which does not affect its
to intervene in the other Civil Case, this time by incorporating in his authority to decide the case, much less divest the court of the jurisdiction
complaint a motion to consolidate both Civil Cases. over the case.

Judge Salvador Tensuan of Branch 146 granted the motion for Moreover, the instant petition is premature and speculative. Had
consolidation on condition that Judge Roberto Diokno of Branch 62 Platinum waited until Judge Diokno decided on what to do with Civil
would not object thereto. Judge Diokno allowed the consolidation of the Case No. 96-365, the parties would have been spared the trouble and
2 cases and setting for hearing Panlilio‘s application for a writ of the expense of seeking recourse from this Court, which in turn would
preliminary attachment. have had one petition less in its docket. The unfounded fear that Civil
Case No. 96-365 would unduly delay the final resolution of Civil Case
Platinum moved to reconsider the order of Judge Diokno but its motion No. 94-1634, if the former were retained by Branch 62, made Platinum
was denied. act with haste.

Platinum filed a petition for certiorari at the CA assailing, among others, Manila Bankers vs Ng Kok Wei: Respondent Eddy Ng Kok Wei is a
the order of Judge Diokno allowing the consolidation of Civil Cases. CA Singaporean businessman who ventured into investing in the
annulled the assailed order but left it to Judge Diokno to decide whether Philippines. On November 29, 1988, respondent, in a Letter of Intent
to return the Civil Case to Judge Tensuan, or to keep it in his docket and addressed to petitioner, expressed his intention to purchase a
decide it as a separate case. Platinum filed a motion for partial condominium unit at Valle Verde Terraces. On December 5, 1988,
reconsideration of the decision of the CA, praying that the Civil Case be respondent paid petitioner a reservation fee of P50,000 for the purchase
returned to Branch 146 or re-raffled to another RTC Branch of Makati. of a 46-square meter condominium unit valued at P860,922.00. On
Said motion was denied. January 16, 1989, respondent paid 90% of the purchase price or
Whether or not RTC-Branch 62‘s basis for acquiring jurisdiction over the Petitioner executed a Contract to Sell in favor of the respondent. The
civil case was extinguished when Judge Diokno‘s July 23, 1996 order contract expressly states that the condominium unit ―shall substantially
allowing the consolidation of the two cases was annulled and set aside. be completed and delivered‖ to the respondent ―within 15 months‖ from
February 8, 1989 or on May 8, 1990, and that ―(S)hould there be no
Ruling: substantial completion and fail(ure) to deliver the unit on the date
Remedial Law Review I – Civil Procedure
specified, a penalty of 1% of the total amount paid (by respondent) shall Presidential Decree No. 957, the National Housing Authority [now
be charged against (petitioner)‖. Housing and Land Use Regulatory Board (HLURB) shall have exclusive
jurisdiction to hear and decide cases of the following nature: x x x
Considering that the stipulated 15-month period was at hand,
respondent returned to the Philippines in April, 1990. C. Cases involving specific performance of contractual and statutory
obligations filed by buyers of subdivision lots or condominium units
In a letter dated April 5, 1990, petitioner informed respondent of the against the owner, developer, dealer, broker or salesman. x x x.‖
substantial completion of his condominium unit, however, due to various
uncontrollable forces (such as coup d‗ etat attempts, typhoon and steel Thus, it is the HLURB which has jurisdiction. We have consistently held
and cement shortage), the final turnover is reset to May 31, 1990. that complaints for specific performance with damages by a lot or
condominium unit buyer against the owner or developer falls under the
Meanwhile, on July 5, 1990, upon receipt of petitioner‘s notice of delivery exclusive jurisdiction of the HLURB.
dated May 31, 1990, respondent again flew back to Manila. He found the
unit still uninhabitable for lack of water and electric facilities. While it may be true that the RTC is without jurisdiction over the case,
petitioner‘s active participation in the proceedings estopped it from
Once more, petitioner issued another notice to move-in addressed to its assailing such lack of it. It is an undesirable practice of a party
building administrator advising the latter that respondent is scheduled to participating in the proceedings and submitting its case for decision and
move in on August 22, 1990. then accepting the judgment, only if favorable, and attacking it for lack of
jurisdiction, when adverse.
On October 5, 1990, respondent returned to the Philippines only to find
that his condominium unit was still unlivable. Exasperated, he was Here, petitioner failed to raise the question of jurisdiction before the RTC
constrained to send petitioner a letter dated November 21, 1990 and CA. In effect, petitioner confirmed and ratified RTC‘s jurisdiction
demanding payment for the damages he sustained. Petitioner ignored over this case. Certainly, it is now in estoppel and can no longer
such demand, prompting respondent to file with the RTC, Makati City, a question the RTC‘s jurisdiction.
complaint against the former for specific performance and damages.
GSIS vs Santiago: Deceased spouses Jose Zulueta and Soledad
During the pendency of the case, respondent finally accepted the Ramos obtained various loans secured by 4 real estate mortgages from
condominium unit and on April 12, 1991, occupied the same. Thus, GSIS (Period: Sept. 1956 – Oct. 1957; Amount: 3.1M). They failed to
respondent‘s cause of action has been limited to his claim for damages. pay so GSIS foreclosed the mortgages.

RTC found petitioner liable for payment of damages due to the delay in Some of these properties were later sold in a public auction at a bid
the performance of its obligation to the respondent. CA affirmed and price of 5.2M. 91 lots were expressly excluded from the auction since
denied the MR. the lots were sufficient to pay for all the mortgage debts. The sale was
annotated in such a way that the excluded lots from the auction are
Issue: specifically indicated.
Whether or not RTC has jurisdiction over the case.
An Affidavit of Consolidation of Ownership was executed by defendant
Ruling: GSIS over Zulueta‘s lots, including the lots, which as earlier stated, were
Yes. On petitioner‘s contention that the RTC has no jurisdiction over the already excluded from the foreclosure. GSIS sold these properties to
instant case, Section 1 (c) of PD No. 1344, as amended, provides: Yorkstown Development Corporation which sale was disapproved by the
Office of the President. The sold properties were returned to GSIS and
―SECTION 1. – In the exercise of its functions to regulate the real estate they began disposing every lot.
trade and business and in addition to its powers provided for in
Remedial Law Review I – Civil Procedure
Antonio Zulueta and Eduardo Santiago (represented Zulueta) executed
an agreement whereby the former transferred all his rights and interests FACTS: On August 2, 1963, herein Petitioner Katon filed a request with
over the excluded lots. Pursuant to this agreement, Santiago wrote a the District Office of the Bureau of Forestry in Puerto Princesa, Palawan,
demand letter to GSIS for the return of 81 excluded lots. for the re-classification of a piece of real property known as Sombrero
Island. Then Asst. Director of Forestry informed the Director of Lands,
Reconveyance (RTC): GSIS argues that the action was barred by Manila, that since the subject land was no longer needed for forest
Statute of Limitations and/or Laches, and that the complaint did not state purposes, the same is therefore certified and released as agricultural
a cause of action. Santiago died during the pendency of the trial so his land for disposition under the Public Land Act.
wife replaced him. Court decided in favor of Santiago – 78 lots (sorry
hindi inexplain ng case kung bakit pabawas ng pabawas yung lots). CA Records show that on November 8, 1996, [R]espondent Juan Fresnillo
affirmed. MR denied. filed a homestead patent application for a portion of the island. Records
also reveal that [R]espondent Jesus Gapilango filed a homestead
GSIS argues: (1) that there was no proof of bad faith nor could fraud or application. Respondent Manuel Palanca, Jr. was issued Homestead
malice be attributed to the petitioner when it erroneously caused the Patent on March 3, 1977 of Sombrero Island. Respondents aver that
issuance of certificates of title over the subject lots despite the fact that they are all bona fide and lawful possessors of their respective portions
these were expressly excluded from the foreclosure sale; (2) an action and have declared said portions for taxation purposes and that they
for reconveyance based on implied or constructive trust prescribes in ten have been faithfully paying taxes thereon for twenty years.
years from the time of its creation or upon the alleged fraudulent Respondents contend that the petitioner has no legal capacity to
registration of the property, in this case when the ownership was sue insofar as the island is concerned because an action for
consolidated to GSIS. The action was instituted more than fourteen reconveyance can only be brought by the owner and not a mere
years later; (3) the properties were not returned because no such homestead applicant and that petitioner is guilty of estoppel by
obligation exists under the loan and mortgage agreement. laches for his failure to assert his right over the land for an
unreasonable and unexplained period of time.
SC: At the outset, it bears emphasis that the jurisdiction of this Court in a
petition for review on certiorari under Rule 45 of the Rules of Court, as In the instant case, petitioner seeks to nullify the homestead
amended, is limited to reviewing only errors of law. This Court is not a patents and original certificates of title issued in favor of the
trier of facts. Case law has it that the findings of the trial court especially respondents covering certain portions of the Sombrero Island as
when affirmed by the CA are binding and conclusive upon this Court. well as the reconveyance of the whole island in his favor. The
Although there are exceptions to the said rule, we find no reason to petitioner claims that he has the exclusive right to file an
deviate therefrom. By assailing the findings of facts of the trial court as application for homestead patent over the whole island since it was
affirmed by the CA, that it acted in bad faith, the petitioner thereby raised he who requested for its conversion from forest land to agricultural
questions of facts in its petition. land."

Katon vs Palanca: DOCTRINE: Where prescription, lack of jurisdiction Respondents filed their Answer with Special and/or Affirmative Defenses
or failure to state a cause of action clearly appear from the complaint and Counterclaim in due time. On June 30, 1999, they also filed a
filed with the trial court, the action may be dismissed motu proprio by Motion to Dismiss on the ground of the alleged defiance by petitioner of
the Court of Appeals, even if the case has been elevated for review on the trial court‘s Order to amend his Complaint so he could thus effect a
different grounds. Verily, the dismissal of such cases appropriately ends substitution by the legal heirs of the deceased, Respondent Gapilango.
useless litigations. The Motion to Dismiss was granted by the RTC in its Order dated July
29, 1999.
Before us is a Petition for Review under Rule 45 of the Rules of Court,
assailing the December 8, 2000 Decision and the November 20, 2001 Petitioner‘s Motion for Reconsideration of the July 29, 1999 Order was
Resolution of the Court of Appeals in CA-GR SP No. 57496. denied by the trial court in its Resolution dated December 17, 1999, for
Remedial Law Review I – Civil Procedure
being a third and prohibited motion. In his Petition for Certiorari before answer are deemed waived, except when (1) lack of jurisdiction
the CA, petitioner charged the trial court with grave abuse of discretion over the subject matter, (2) litis pendentia, (3) res judicata and (4)
on the ground that the denied Motion was his first and only Motion for prescription are evident from the pleadings or the evidence on
Reconsideration of the aforesaid Order. record. In the four excepted instances, the court shall motu proprio
dismiss the claim or action.
Ruling of the Court of Appeals: Instead of limiting itself to the
allegation of grave abuse of discretion, the CA ruled on the merits. In On the other hand, "residual jurisdiction" is embodied in Section 9 of
the Assailed Resolution, the CA acknowledged that it had erred when it Rule 41 of the Rules of Court. The "residual jurisdiction" of trial courts is
ruled on the merits of the case. Nonetheless, the Complaint was available at a stage in which the court is normally deemed to have lost
dismissed motu proprio by the challenged Resolution of the CA Special jurisdiction over the case or the subject matter involved in the appeal.
Division of five members – with two justices dissenting – pursuant to its This stage is reached upon the perfection of the appeals by the parties
"residual prerogative" under Section 1 of Rule 9 of the Rules of or upon the approval of the records on appeal, but prior to the transmittal
Court. of the original records or the records on appeal.In either instance, the
trial court still retains its so-called residual jurisdiction to issue protective
Issues orders, approve compromises, permit appeals of indigent litigants, order
1. Is the Court of Appeals correct in resolving the Petition for execution pending appeal, and allow the withdrawal of the appeal.
Certiorari based on an issue not raised (the merits of the case)
in the Petition? The CA’s motu proprio dismissal of petitioner’s Complaint could
2. Is the Court of Appeals correct in invoking its alleged ‗residual not have been based, therefore, on residual jurisdiction under Rule
prerogative‘ under Section 1, Rule 9 of the 1997 Rules of Civil 41. Undeniably, such order of dismissal was not one for the
Procedure in resolving the Petition on an issue not raised in the protection and preservation of the rights of the parties, pending the
Petition?" disposition of the case on appeal. What the CA referred to as
residual prerogatives were the general residual powers of the
The Court’s Ruling: The Petition has no merit. courts to dismiss an action motu proprio upon the grounds
mentioned in Section 1 of Rule 9 of the Rules of Court and under
Propriety of Ruling on the Merits: This is not the first time that authority of Section 2 of Rule 1 of the same rules.
petitioner has taken issue with the propriety of the CA‘s ruling on the
merits. The CA even corrected itself in its November 20, 2001 Jurisdiction over the subject matter is conferred by law and is
Resolution. Suffice it to say that the appellate court indeed acted ultra determined by the allegations in the complaint and the character of the
jurisdictio in ruling on the merits of the case when the only issue that relief sought. The question is, did the Complaint sufficiently allege an
could have been, and was in fact, raised was the alleged grave abuse of action for declaration of nullity of the free patent and certificate of title or,
discretion committed by the trial court in denying petitioner‘s Motion for alternatively, for reconveyance? Or did it plead merely for reversion?
Reconsideration. Settled is the doctrine that the sole office of a writ of The Complaint did not sufficiently make a case for any of such
certiorari is the correction of errors of jurisdiction. Such writ does not actions, over which the trial court could have exercised
include a review of the evidence, more so when no determination of the jurisdiction.
merits has yet been made by the trial court, as in this case.
In an action for nullification of title or declaration of its nullity, the
IMPORTANT! Dismissal for Prescription and Lack of Jurisdiction: complaint must contain the following allegations: 1) that the contested
Petitioner has confused what the CA adverted to as its "residual land was privately owned by the plaintiff prior to the issuance of the
prerogatives" under Section 1 of Rule 9 of the Rules of Court with the assailed certificate of title to the defendant; and 2) that the defendant
"residual jurisdiction" of trial courts over cases appealed to the CA. perpetuated a fraud or committed a mistake in obtaining a document of
Under Section 1 of Rule 9 of the Rules of Court, defenses and title over the parcel of land claimed by the plaintiff. In these cases, the
objections not pleaded either in a motion to dismiss or in the nullity arises not from fraud or deceit, but from the fact that the director
Remedial Law Review I – Civil Procedure
of the Land Management Bureau had no jurisdiction to bestow title;
hence, the issued patent or certificate of title was void ab initio. Pecson vs COMELEC: Pecson and Cunanan were candidates for the
mayoralty position in the Municipality of Magalang, Province of
In an alternative action for reconveyance, the certificate of title is also Pampanga in the May 2007 elections. Cunanan was proclaimed the
respected as incontrovertible, but the transfer of the property or title winning candidate, garnering a total of 12,592 votes as against Pecson‘s
thereto is sought to be nullified on the ground that it was wrongfully or 12,531, or a margin of 61 votes. Cunanan took his oath and assumed
erroneously registered in the defendant‘s name. As with an annulment of the position of Mayor of Magalang. Soon thereafter, Pecson filed an
title, a complaint must allege two facts that, if admitted, would entitle the election protest with the RTC.
plaintiff to recover title to the disputed land: (1) that the plaintiff was the
owner of the land, and (2) that the defendant illegally dispossessed the The RTC rendered a Decision in Pecson‘s favor. The RTC ruled that
plaintiff of the property. Therefore, the defendant who acquired the Pecson received a total of 14,897 votes as against Cunanan‘s 13,758 –
property through mistake or fraud is bound to hold and reconvey to the a vote margin of 1,139.
plaintiff the property or the title thereto.
Cunanan received a copy of the Decision on November 26, 2007 and
In the present case, nowhere in the Complaint did petitioner allege filed a Notice of Appeal the day after. The RTC issued on November 27,
that he had previously held title to the land in question. On the 2008 an Order noting the filing of the notice of appeal and the payment
contrary, he acknowledged that the disputed island was public of appeal fee and directing the transmittal of the records of the case to
land, that it had never been privately titled in his name, and that he the Electoral Contests Adjudication Department (ECAD) of the
had not applied for a homestead under the provisions of the Public COMELEC. Pecson, on the other hand, filed on November 28, 2007 an
Land Act. This Court has held that a complaint by a private party Urgent Motion for Immediate Execution Pending Appeal, claiming that
who alleges that a homestead patent was obtained by fraudulent Section 11, Rule 14 of the Rules of Procedure in Election Contests
means, and who consequently prays for its annulment, does not before the Courts Involving Elective Municipal and Barangay Officials
state a cause of action; hence, such complaint must be dismissed. (Rules) allows this remedy.

Neither can petitioner’s case be one for reversion. Section 101 of The RTC granted Pecson‘s motion for execution pending appeal via a
the Public Land Act categorically declares that only the solicitor Special Order dated December 3, 2007 (Special Order) but suspended,
general or the officer in his stead may institute such an action. A pursuant to the Rules, the actual issuance of the writ of execution for
private person may not bring an action for reversion or any other twenty (20) days.
action that would have the effect of canceling a free patent and its
derivative title, with the result that the land thereby covered would Cunanan filed with the COMELEC a Petition for Application of
again form part of the public domain. Preliminary Injunction with Prayer for Status Quo Ante Order/Temporary
Restraining Order (TRO) with Prayer for Immediate Raffle. He argued in
Consequently, the dismissal of the Complaint is proper not only his petition that: (1) the RTC Decision did not clearly establish Pecson‘s
because of lack of jurisdiction, but also because of the utter victory or his (Cunanan‘s) defeat – a requirement of Section 11, Rule 14
absence of a cause of action, a defense raised by respondents in their of the Rules; among other reasons, the number of votes the RTC tallied
Answer.(Section 2 of Rule 3 of the Rules of Court) and tabulated exceeded the number of those who actually voted and the
votes cast for the position of Mayor, and (2) the RTC had constructively
Finally, assuming that petitioner is the proper party to bring the action for relinquished its jurisdiction by the issuance of the Order dated
annulment of title or its reconveyance, the case should still be dismissed November 27, 2007 directing the transmittal of the records of the case.
for being time-barred. Clearly, the suit was brought way past ten
years from the date of the issuance of the Certificate, the The Second Division of the COMELEC issued on January 4, 2008 a 60-
prescriptive period for reconveyance of fraudulently registered real day TRO directing: (1) the RTC to cease and desist from issuing or
property. causing the issuance of a writ of execution or implementing the Special
Remedial Law Review I – Civil Procedure
Order; and (2) Cunanan to continue performing the functions of Mayor of carry with it the nullification of the Special Order. This consequence
Magalang. does not of course hold true in the reverse situation – the nullification of
the Special Order effectively carries with it the nullification of its
The COMELEC‘s Second Division denied Cunanan‘s petition in a implementing writ and removes the basis for the issuance of another
Resolution dated March 6, 2008. It ruled that: (1) the resolution of the implementing writ. In the present case, the reality is that if and when we
motion for execution pending appeal is part of the residual jurisdiction of ultimately affirm the validity of the Special Order, nothing will thereafter
the RTC to settle pending incidents; the motion was filed prior to the prevent the RTC from issuing another writ.
expiration of the period to appeal and while the RTC was still in
possession of the original record; and (2) there is good reason to justify Another legal reality is that the COMELEC is wrong in its ruling that the
the execution of the Decision pending appeal, as Pecson‘s victory was RTC could no longer actually issue the writ on March 11, 2008 because
clearly and manifestly established. it no longer had jurisdiction to do so after the appeal period lapsed and
after the records were transmitted to the ECAD-COMELEC. That the
Pecson thus asked for the issuance of a writ of execution via an Ex- RTC is still in possession of the records and that the period to appeal (of
Parte Motion. Despite Cunanan‘s opposition, the RTC granted Pecson‘s both contending parties) must have not lapsed are important for
motion and issued the writ of execution on March 11, 2008. Pecson jurisdictional purposes if the issue is the authority of the RTC to grant a
thereafter assumed the duties and functions of Mayor of Magalang. Special Order allowing execution pending appeal; they are requisite
elements for the exercise by the RTC of its residual jurisdiction to validly
On Cunanan‘s motion, the COMELEC en banc issued its Resolution order an execution pending appeal, not for the issuance of the writ itself.
dated May 21, 2008 reversing the ruling of the Second Division insofar This is clearly evident from the cited provision of the Rules which does
as it affirmed the RTC‘s findings of good reasons to execute the decision not require the issuance of the implementing writ within the above limited
pending appeal. It affirmed the authority of the RTC to order execution jurisdictional period. The RTC cannot legally issue the implementing writ
pending appeal; it however nullified the March 11, 2008 writ of execution within this limited period for two reasons: (1) the cited twenty-day waiting
on the ground that the RTC could no longer issue the writ because it had period under Section 11(b); and (2) the mandatory immediate
lost jurisdiction over the case after transmittal of the records and the transmittal of the records to the ECAD of the COMELEC under Section
perfection of the appeals of both Cunanan and Pecson (to be accurate, 10 of the Rules.
the lapse of Pecson‘s period to appeal).
Other than the clarity of Pecson‘s victory under the RTC Decision, the
Threatened to be unseated, Pecson asked, as interim relief, for the Special Order cited good and special reasons that justified an execution
issuance of a Status Quo Order. pending appeal, specifically: (1) the need to give as much recognition to
the worth of a trial judge‘s decision as that which is initially given by the
ISSUE law to the proclamation by the board of canvassers; (2) public interest
Whether or not the writ of execution the RTC issued on March 11, 2008 and/or respect for and giving meaning to the will of the electorate; and
was void because the RTC could no longer issue the writ because of the (3) public policy – something had to be done to deal a death blow to the
lapse of the period for appeal, and because the RTC no longer held the pernicious grab-the-proclamation-prolong-the-protest technique often, if
records of the election contest which had then been transmitted to the not invariably, resorted to by unscrupulous politicians who would render
ECAD-COMELEC. nugatory the people‘s verdict against them.

HELD The term for mayor consists of only three (3) years. One year and six
No. The writ of execution issued by the RTC is a mere administrative months has lapsed since the May 2007 election; thus, less than two
enforcement medium of the Special Order – the main order supporting years are left of the elected mayor‘s term. The election protest, while
Pecson‘s motion for the issuance of a writ of execution. The writ itself already decided at the RTC level, is still at the execution-pending-appeal
cannot and does not assume a life of its own independent from the stage and is still far from the finality of any decision on the merits, given
Special Order on which it is based. Certainly, its nullification does not
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the available appellate remedies and the recourses available through Since petitioner did not pay the appropriate docket fees, RTC did not
special civil actions. acquire jurisdiction.

Tan asked the RTC to issue an order requiring petitioner to pay the
correct docket fees; and should petitioner fail to do so, to deny and
II. RULES 1 TO 5 (inc. 1991 Revised Rule on Summary Procedure) dismiss the prayer of petitioner for the annulment of the Deeds of
Absolute Sale for having been executed in contravention of the law or of
A. Actions: meaning and commencement the MOA as pactum commisorium. If it was a real action the docket fees
would have been P720,392.60.
When is an action commenced? Upon the timely payment of the correct
docket fees. SC: Real action. To resolve the issue of whether petitioner paid the
correct docket fees, it is necessary to determine the true nature of its
Rule 1, Section 5. Commencement of action. — A civil action is Complaint. The nature of an action is determined by the allegations in
commenced by the filing of the original complaint in court. If an the body of the pleading or Complaint itself, rather than by its title or
additional defendant is impleaded in a later pleading, the action is heading. However, the Court finds it necessary, in ascertaining the true
commenced with regard to him on the dated of the filing of such later nature of the Civil Case, to take into account significant facts and
pleading, irrespective of whether the motion for its admission, if circumstances beyond the Complaint of petitioner, facts and
necessary, is denied by the court. circumstances which petitioner failed to state in its Complaint but were
disclosed in the preliminary proceedings before the court a quo.
Ruby Shelter Builders & Realty Dev. Corp. vs Formaran: Petitioner
obtained a loan from respondents Romeo Tan and Roberto Obiedo, Petitioner persistently avers that its Complaint is primarily for the
secured by REM. In a MOA, Tan and Obiedo granted petitioner an annulment of the Deeds of Absolute Sale. Based on the allegations and
extension. In the event that petitioner is able to redeem any of the reliefs in the Complaint alone, one would get the impression that the
parcels of land, the Deed of Absolute Sale covering the said property titles to the real properties still rest with petitioner; and that the interest of
shall be nullified and have no force and effect; and Tan and Obiedo shall Tan and Obiedo in the same lies only in the Deeds of Absolute Sale
then return the owner‘s duplicate of the TCT to petitioner and also sought to be annulled.
execute a Deed of Discharge of Mortgage. However, if petitioner is
unable to redeem the parcels of land within the period, Tan and Obiedo Petitioner failed to mention in its Complaint that Tan and Obiedo already
could already present the Deeds of Absolute Sale to the Register of had the MOA, which clearly provided for the execution of the Deeds of
Deeds so Tan and Obiedo could acquire TCTs to the properties in their Absolute Sale, registered on the TCTs over the parcels of land, then still
names. in the name of petitioner. After Tan and Obiedo had the Deeds of
Absolute Sale notarized and presented to the Register of Deeds, they
Upon filing its Complaint with the RTC, petitioner paid P13,644.25 for were already issued TCTs over the real properties, in their own names.
docket and other legal fees, as assessed by the Office of the Clerk of Tan and Obiedo have also acquired possession of the properties,
Court. The Clerk of Court initially considered the case as an action enabling them to demolish the improvements thereon.
incapable of pecuniary estimation and computed the docket and other
legal fees due thereon according to Section 7(b)(1), Rule 141 of the It is, thus, suspect that petitioner kept mum about these facts and
Rules of Court. circumstances. Even though the MOA was supposed to have long been
registered on its TCTs over the parcels of land, petitioner did not pray for
Tan filed before the RTC an Omnibus Motion in which he contended that the removal of the same as a cloud on its title. In the same vein,
the Civil Case involved real properties, the docket fees for which should although petitioner alleged that Tan and Obiedo forcibly took physical
be computed in accordance with Section 7(a), not Section 7(b)(1), of possession of the properties, petitioner did not seek the restoration of
Rule 141 of the Rules of Court, as amended by A.M. No. 04-2-04-SC. such possession to itself. And despite learning that Tan and Obiedo
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already secured TCTs over the properties in their names, petitioner did eventually submitted the case for VA. VA dismissed the case.
not ask for the cancellation of said titles. The only logical and reasonable Respondent received the VA‘s decision on November 20, 2007.
explanation is that petitioner is reluctant to bring to the attention of the
Court certain facts and circumstances, keeping its Complaint safely On December 5, 2007, Cobarrubias filed with the CA a petition for
worded, so as to institute only an action for annulment of Deeds of review under Rule 43, but failed to pay the required filing fees and to
Absolute Sale. Petitioner deliberately avoided raising issues on the title attach to the petition copies of the material portions of the record. CA
and possession of the real properties that may lead the Court to classify dismissed the petition on January 14, 2008 due to procedural lapses.
its case as a real action. Respondent received the CA resolution on January 31, 2008. On
February 15, 2008, respondent filed a motion for reconsideration and
The allegations and reliefs petitioner sought in its Complaint appears to attached to her motion copies of the material portions of the record and
be ultimately a real action, involving as they do the recovery by petitioner the postal money orders for P4,230.00. She argued that the ground
of its title to and possession of the parcels of land from Tan and Obiedo. upon which her petition was dismissed was technical. CA reinstated her
A real action is one in which the plaintiff seeks the recovery of real petition finding that respondent substantially complied with the rules by
property; or, as indicated in what is now Section 1, Rule 4 of the Rules of paying the appeal fee in full and attaching the proper documents in her
Court, a real action is an action affecting title to or recovery of motion for reconsideration. SLU insists that the VA decision had already
possession of real property. become final for failure of respondent to pay the docket fees on time.

While it is true that petitioner does not directly seek the recovery of title SC: Whether or not jurisdiction was acquired by the appellate court by
or possession of the property, his action for annulment of sale and his virtue of the timely filing and payment of the correct docket fees.
claim for damages are closely intertwined with the issue of ownership of Cobarrubias‘ petition should NOT be reinstated because of her failure to
the building which, under the law, is considered immovable property, the pay the appeal fee within the reglementary period. Appeal is not a
recovery of which is petitioner's primary objective. An action for the natural right but a mere statutory privilege. Thus, appeal must be made
annulment or rescission of a sale of real property does not operate to strictly in accordance with the provision set by law. Rule 43 provides that
efface the fundamental and prime objective and nature of the case, appeals from the judgment of the VA shall be taken to the CA, by filing a
which is to recover said real property. It is a real action. Unfortunately, petition for review within 15 days from the receipt of the notice of
and evidently to evade payment of the correct amount of filing fee, judgment. Furthermore, upon the filing of the petition, the petitioner shall
Manalo never alleged in the body of his amended petition, much less in pay to the CA clerk of court the docketing and other lawful fees; non-
the prayer portion thereof, the assessed value of the subject res, or, if compliance with the procedural requirements shall be a sufficient ground
there is none, the estimated value thereof, to serve as basis for the for the petition‘s dismissal. Thus, payment in full of docket fees within
receiving clerk in computing and arriving at the proper amount of filing the prescribed period is not only mandatory, but also jurisdictional.
fee due thereon, as required under Section 7 of this Court‘s en banc
resolution of 04 September 1990. Cobarrubias filed her petition for review on December 5, 2007, 15 days
from receipt of the VA decision on November 20, 2007, but paid her
St. Louis University, Inc. vs Cobarrubias: Cobbarubias is an docket fees in full only after 72 days, when she filed her MR on February
associate professor of petitioner and a member of the Union. She was 15, 2008 and attached the postal money orders forP4,230.00.
placed on forced leave by petitioner pursuant to a provision in the CBA Undeniably, the docket fees were paid late, and without payment of the
which provides that: ―Section 7.7. For teaching employees in college full docket fees, Cobarrubias‘ appeal was not perfected within the
who fail the yearly evaluation, the following provisions shall apply: (a) reglementary period.
Teaching employees who are retained for 3 cumulative years in 5 years
shall be on forced leave for 1 regular semester during which period all Viewed in this light, procedural rules are not to be belittled or dismissed
benefits due them shall be suspended.‖ Cobbarubias resorted to the simply because their non-observance may have prejudiced a party's
grievance machinery, but failed to resolve the dispute. Respondent then substantive rights; like all rules, they are required to be followed.
filed a case for illegal forced leave or suspension with the NCMB. Parties However, there are recognized exceptions to their strict observance,
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such as: (1) most persuasive and weighty reasons; (2) to relieve a thus preventing the RTC from acquiring jurisdiction over the case. In
litigant from an injustice not commensurate with his failure to comply addition, the petitioners allege the prematurity of the complaint since
with the prescribed procedure; (3) good faith of the defaulting party by BNP did not priorly send a demand letter.
immediately paying within a reasonable time from the time of the default;
(4) the existence of special or compelling circumstances; (5) the merits RTC denied the motion to dismiss and the subsequent MR. The CA
of the case; (6) a cause not entirely attributable to the fault or negligence denied the appeal by way of certiorari stating that Section 7(a), Rule 141
of the party favored by the suspension of the rules; (7) a lack of any of the Rules of Court excludes interest accruing from the principal
showing that the review sought is merely frivolous and dilatory; (8) the amount being claimed in the pleading in the computation of the
other party will not be unjustly prejudiced thereby; (9) fraud, accident, prescribed filing fees. CA denied their MR.
mistake or excusable negligence without the appellant's fault; (10)
peculiar, legal and equitable circumstances attendant to each case; (11) The petitioners argue that pursuant to Administrative Circular 11-94,
in the name of substantial justice and fair play; (12) importance of the interests claimed should be included in the computation of the docket
issues involved; and (13) exercise of sound discretion by the judge, fees. Thus since BNP underpaid, RTC never acquired jurisdiction over
guided by all ―the attendant circumstances. Thus, there should be an the case.
effort, on the part of the party invoking liberality, to advance a
reasonable or meritorious explanation for his/her failure to comply with Issues: Should the computation for payment of docket fees have
the rules. included the interest claimed by the complainant? Yes.

No such explanation has been advanced. Other than insisting that the Did the trial court fail to acquire jurisdiction over the case for insufficient
ends of justice and fair play are better served if the case is decided on docket fees? No.
its merits, Cobarrubias offered no excuse for her failure to pay the
docket fees in full when she filed her petition for review. Cobarrubias‘ SC: When the complaint was filed in 1998, Rule 141 had been amended
omission is fatal to her cause. by Administrative Circular 11-94.

In Ruby Shelter, the focus was the payment of the correct amount of In Manchester Development Corp. vs. CA, this Court held that the court
the docket fees; In Cobarrubias, the emphasis was the timely payment. acquires jurisdiction over any case only upon payment of the prescribed
The court acquires jurisdiction over the case upon the filing of the docket fees. However, that the ruling in Manchester was clarified in Sun
complaint AND timely payment of the correct docket fees. Insurance Office, Ltd vs. Asuncion when this Court held that in the
former there was an effort to defraud the government in avoiding to pay
Proton Philippines vs Banque Nationale de Paris (BNP): Proton the correct docket fees, whereas in the latter the plaintiff demonstrated
availed of the credit facilities of BNP and executed a corporate his willingness to abide by paying the additional fees as required.
guarantee of the extent of US$2 million to guarantee its obligation.
Under their trust agreement, Proton would receive imported motor Respondent merely relied on the assessment made by the Clerk of
vehicles and hold them in trust for BNP, to be applied to its obligations to Court which turned out to be incorrect. Respondent prayed for ―accrued
it in case the vehicles are not sold, Proton would return them to BNP interest subsequent to August 15, 1998 until finally fully paid.‖ The
with the documents of title. complaint having been filed on September 7, 1998, respondent‘s claim
includes the interest from August 16, 1998 until such date of filing.
Proton failed to deliver the proceeds and to return the unsold motor Respondent did not, however, pay the filing fee corresponding to its
vehicles. Proton‘s guarantors refused to pay its obligation so BNP filed a claim for interest from August 16, 1998 until the filing of the complaint on
complaint ordering them to pay the initial amount of US$2 million with September 7, 1998. As priorly discussed, this is required under Rule
accrued interest and other related charges. RTC Makati Clerk of Court 141, as amended by Administrative Circular 11-94, which was the rule
assessed the docket fees at P352,000. The petitioners filed a motion to applicable at the time. Thus, as the complaint currently stands,
dismiss the complaint by BNP for failure to pay the correct docket fees respondent cannot claim the interest from August 16, 1998 until
Remedial Law Review I – Civil Procedure
September 7, 1998, unless respondent is allowed by motion to amend (b) A criminal action is one by which the State prosecutes a person for
its complaint within a reasonable time and specify the precise amount of an act or omission punishable by law.
interest petitioners owe from August 16, 1998 to September 7, 1998 and
pay the corresponding docket fee. (c) A special proceeding is a remedy by which a party seeks to establish
a status, a right, or a particular fact. (Example: settlement of the estate)
Rule 2, Section 1. Ordinary civil actions, basis of. — Every ordinary
civil action must be based on a cause of action. In civil actions, there are 5 parties: (1) plaintiff, (2) defendant, (3) co-
defendant, (4) third- fourth- fifth- party defendant, and (4) intervenor.
What is a cause of action?
In criminal actions, there can only be 2 parties: (1) Republic of the
Rule 2, Section 2. Cause of action, defined. — A cause of action is Philippines, and (2) the accused.
the act or omission by which a party violates a right of another.
In special proceedings, there is only 1 party: the petitioner. But when
Where lies the court of action? In the defendant. Rule 6, Section 3: The one opposes, he becomes an oppositor akin to a defendant. Exception:
complaint is the pleading alleging the plaintiff's cause or causes of In habeas corpus, writ of amparo, writ of habeas data and writ of
action. There is a contradiction. How do you resolve this? kalikasan, there must be a respondent.

If the cause of action is the act or omission in violation of the right of the B. Rule 2
other, it is in the defendant. But the definition of complaint says it is the
plaintiff‘s cause of action. Rule 6 pertains to the remedy of the plaintiff; One suit for a single cause of action
it‘s not really a cause of action but a right of action. Thus, the right of
action is with the plaintiff. But there can never be a right of action without Rule 2, Section 3. One suit for a single cause of action. — A party
the cause of action. What triggers the right of action is the defendant‘s may not institute more than one suit for a single cause of action.
cause of action because the plaintiff can only go to court once his right
has been violated. Any party to a case can never file 2 cases based on 1 act or omission by
the defendant in violation of the right of the plaintiff.
But this has something to do with civil actions. The Rules govern not
only civil actions but also criminal actions and special proceedings. How If A, the plaintiff, leases unto B a parcel of land for a period of 5 years.
do you distinguish? Upon the expiration of the period of 5 years, the obligation of B is to
return the parcel of land to A. B does not return the parcel of land. There
Rule 1, Section 3. Cases governed. — These Rules shall govern the is only one violation: failure to return the parcel of land to A. How may A
procedure to be observed in actions, civil or criminal and special violate the principle of one suit for a single cause of action? If A files (1)
proceedings. an action for the recovery of the property and (2) another case for
damages for failure to surrender the property.
(a) A civil action is one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a Splitting a single cause of action
When there is a splitting of a single cause of action, what is the remedy
A civil action may either be ordinary or special. Both are governed by the of B? A motion to dismiss under Rule 16.
rules for ordinary civil actions, subject to the specific rules prescribed for
a special civil action. Rule 16, Section 1, (e) That there is another action pending between
the same parties for the same cause;

Remedial Law Review I – Civil Procedure

Rule 2, Section 4. Splitting a single cause of action; effect of. — If (d) Where the claims in all the causes action are principally for recovery
two or more suits are instituted on the basis of the same cause of action, of money, the aggregate amount claimed shall be the test of jurisdiction.
the filing of one or a judgment upon the merits in any one is available as (Note: This is called the totality rule)
a ground for the dismissal of the others.
B, the defendant, borrowed money from A, the plaintiff, in the amount of
But if judgment has already been rendered, the remedy of B is motion to P150,000 in January. Again, he borrowed P150,000 from A in May. By
dismiss on the ground of res judicata. December, B borrowed P1,000,000 from A secured by real estate
mortgage (Rule 68). May A join his causes of action against B? Yes.
st nd rd
Rule 16, Section 1, (f) That the cause of action is barred by a prior What action? The 1 and 2 are for sum of money. The 3 may be an
judgment xxx action for foreclosure or recovery of the sum of money (P1,000,000).

Joinder of causes vs Joinder of parties Suppose A decided to file 3 actions for sums of money, what is the
aggregate amount? P1,300,000. Where should it be filed? With the RTC.
There are 4 requirements for joinder of causes of action:
Is that mandatory on the part of A to file 3 cases against B? No.
Rule 2, Section 5. Joinder of causes of action. — A party may in one
st nd
pleading assert, in the alternative or otherwise, as many causes of If A chooses to file 3 cases, where would he file them? 1 and 2 must
action as he may have against an opposing party, subject to the be filed with the MTC. The 3 must be filed with the RTC.
following conditions:
What is the jurisdictional amount under R.A. 7691?
(a) The party joining the causes of action shall comply with the rules on
joinder of parties; RTC has jurisdiction over:

Rule on joinder of parties: Rule 3, Section 6. Permissive joinder of Real actions:

parties. — All persons in whom or against whom any right to relief in Assessed value of the property outside Metro Manila > P20,000
respect to or arising out of the same transaction or series of transactions Assessed value of the property inside Metro Manila > P50,000
is alleged to exist, whether jointly, severally, or in the alternative, may, Exception: MTC has jurisdiction over forcible entry and unlawful
except as otherwise provided in these Rules, join as plaintiffs or be detainer cases.
joined as defendants in one complaint, where any question of law or fact
common to all such plaintiffs or to all such defendants may arise in the Personal actions:
action; but the court may make such orders as may be just to prevent Demand or the value of the property outside Metro Manila > P100,000
any plaintiff or defendant from being embarrassed or put to expense in Demand or the value of the property inside Metro Manila > P200,000
connection with any proceedings in which he may have no interest.
If A joins the causes of action of sum of money, sum of money and
(b) The joinder shall not include special civil actions or actions governed foreclosure of real estate mortgage, is that a proper joinder of causes of
by special rules; action? No, because Rule 2, Section 5 (b) states that the joinder shall
not include special civil actions.
(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 The remedy of B is (NOT A MOTION TO DISMISS) to file a motion to
Regional Trial Court provided one of the causes of action falls within the amend (or omit?) or ex parte to drop. Also the court itself can drop it
jurisdiction of said court and the venue lies therein; and because the court cannot proceed.

Remedial Law Review I – Civil Procedure

Rule 2, Section 6. Misjoinder of causes of action. — Misjoinder of
causes of action is not a ground for dismissal of an action. A misjoined Indispensable parties vs necessary parties
cause of action may, on motion of a party or on the initiative of the court,
be severed and proceeded with separately. An indispensable party is one without whom there can be no final
determination of the case while a necessary party is one without whom
A is a resident of QC and B is a resident of Manila. The real property there can be no complete determination of the case.
which is offered as security in the real estate mortgage is located in
Baguio. Where should the case be filed/ what is the venue of the action? Rule 3, Section 6. Permissive joinder of parties. — All persons in
st nd rd
If 1 action and 2 action are for sum of money, 3 action is for recovery whom or against whom any right to relief in respect to or arising out of
of real property, can you join them? Yes. The venue is at the option of the same transaction or series of transactions is alleged to exist,
the plaintiff. You can join real and personal actions; there is no whether jointly, severally, or in the alternative, may, except as otherwise
prohibition under joinder of causes of action. However, you cannot join provided in these Rules, join as plaintiffs or be joined as defendants in
an ordinary civil action with a special civil action. That has to be one complaint, where any question of law or fact common to all such
dropped. plaintiffs or to all such defendants may arise in the action; but the court
may make such orders as may be just to prevent any plaintiff or
C. Parties to Civil Actions defendant from being embarrassed or put to expense in connection with
any proceedings in which he may have no interest.
Rule 3, Section 1. Who may be parties; plaintiff and defendant. —
Only natural or juridical persons, or entities authorized by law may be Rule 3, Section 7. Compulsory joinder of indispensable parties. —
parties in a civil action. The term "plaintiff" may refer to the claiming Parties in interest without whom no final determination can be had of an
party, the counter-claimant, the cross-claimant, or the third (fourth, etc.) action shall be joined either as plaintiffs or defendants.
— party plaintiff. The term "defendant" may refer to the original
defending party, the defendant in a counter-claim, the cross-defendant, Rule 3, Section 8. Necessary party. — A necessary party is one who is
or the third (fourth, etc.) — party defendant. not indispensable but who ought to be joined as a party if complete relief
is to be accorded as to those already parties, or for a complete
Who may be parties? Natural persons (what makes you a natural person determination or settlement of the claim subject of the action.
is your intellect of will), juridical persons (those which are created by law
like a corporation), entities authorized by law (ex. estate, or the totality of Relucio vs Lopez: Can there be a final determination of the case
a decedent‘s assets and liabilities). Still, they cannot sue until they are without Relucio? Yes. Can there be a complete determination of the
real parties in interest. case without Relucio? Yes. The allegation of the plaintiff is some names
were registered in the name of Relucio. Since they are in the name of
Rule 3, Section 2. Parties in interest. — A real party in interest is the Relucio, then those properties are outside the scope of the action.
party who stands to be benefited or injured by the judgment in the suit,
or the party entitled to the avails of the suit. Unless otherwise authorized Lopez filed a petition for appointment as sole administrator of conjugal
by law or these Rules, every action must be prosecuted or defended in properties against Alberto Lopez and Relucio in RTC Makati. She
the name of the real party in interest. alleged that she was legally married to Alberto, but he abandoned her
and their 4 legitimate children, that he arrogated unto himself full and
Who is not a party in interest? A third party in a contract. In an action for exclusive control and administration of the conjugal properties, that he
breach of contract, only those who are privy to the contract are real spends such for his sole benefit, and that after abandoning her, he
parties in interest. maintained an illicit relationship and cohabited with Relucio. During their
cohabitation, they amassed a fortune, and Lopez alleges that such were
Under Rule 3, there are only 2 kinds of parties: indispensable parties acquired principally through the actual contribution of money, property
and necessary parties. and industry of Alberto, with minimal, if not nil, actual contribution from
Remedial Law Review I – Civil Procedure
Relucio. She alleges that Alberto excluded her and their children from China Banking Corp vs Oliver: Pangan Lim, Jr. and Mercedes Oliver
any fruits or income derived from the conjugal properties. He also (Oliver 1) applied for a loan, offering as collateral a lot covered by a TCT
allegedly sold, alienated, etc., properties belonging to the conjugal in the name of Oliver, which Chinabank approved. The mortgage was
partnership. duly registered and annotated on the original title under the custody of
the Registry of Deeds and on the owner‘s duplicate copy in the bank‘s
Relucio filed a Motion to Dismiss; there was no cause of action against possession.
her. MTD was denied; she is impleaded as a necessary or indispensable
party because some of the properties are registered in her name and Respondent, claiming that she is Mercedes Oliver (Oliver 2), filed an
Alberto, or solely in her name. Relucio filed an MR, but was denied. She action for annulment of mortgage and cancellation of title with damages.
filed a petition for certiorari with the CA, who likewise denied the petition, Respondent claimed that: she was the registered and lawful owner of
as well as the subsequent MR. the land; the owner‘s duplicate copy of the title had always been in her
possession; and she did not apply for a loan or surrender her title to
SC: Relucio is not an indispensable or necessary party. The first cause Chinabank. Respondent prayed that: the owner‘s duplicate copy
of action is for judicial appointment as administratrix. The administration surrendered to Chinabank as well as the original title with the Registry of
of the property of the marriage is entirely between the spouses, to the Deeds be cancelled; the mortgage be declared null and void; and the
exclusion of all other persons. There is no right-duty relation between Registry of Deeds be ordered to issue a new and clean title in her name.
Lopez and Relucio that would support a cause of action. The second
cause of action is for an accounting, which is arises from or is an Chinabank argues that it was indispensable for Oliver 2 to implead
incident of marriage. As Relucio has nothing to do with the marriage, no mortgagor Oliver 1. Respondent‘s complaint before the trial court was
cause of action can exist. The third cause of action is for forfeiture of one for cancellation of the transfer certificate of title in petitioner‘s
Alberto's share in the property mentioned. It does not involve the issue possession. According to petitioner, the issue below is the genuineness
of validity of the co-ownership between Alberto and Relucio. The issue is of the titles, which is intertwined with the issue of ownership. This being
whether there is basis in law to forfeit Alberto‘s share, if any there be, in the case, said the petitioner, the mortgagor Oliver 1 must necessarily be
property co-owned by him with Relucio. The asserted right to forfeit impleaded for she is the registered owner. Petitioner argues that
extends to Alberto's share alone. Lopez sought support, but a stranger mortgagor Oliver 1 is in a better position to defend her title. She stands
cannot be compelled to give support. As to the claim for moral damages, to suffer if it is declared fake.
the claim is against Alberto. To sustain a cause of action for moral
damages, the complaint must have the character of an action for SC: Oliver 1 is not an indispensable party. Oliver 1 is a party in interest,
interference with marital or family relations under the Civil Code. for she will be affected by the outcome of the case. She stands to be
benefited in case the mortgage is declared valid, or injured in case her
A real party in interest is one who stands ―to be benefited or injured by title is declared fake. However, Oliver 1‘s absence from the case does
the judgment of the suit.‖ Relucio would not be affected by any not hamper the trial court in resolving the dispute between Oliver 2 and
judgment. If Relucio is not a real party in interest, she cannot be an petitioner.
indispensable party. An indispensable party is one without whom there
can be no final determination of an action. Oliver 2‘s allegations in the complaint shows that it was for annulment of
mortgage due to petitioner‘s negligence in not determining the actual
Nor can Relucio be a necessary party in the Special Proceedings. A ownership of the property, resulting in the mortgage‘s annotation on the
necessary party is one who is not indispensable but who ought to be TCT in the Registry of Deeds‘ custody. To support said allegations,
joined as party if complete relief is to be accorded those already parties, Oliver 2 had to prove (1) that she is the real Mercedes Oliver referred to
or for a complete determination or settlement of the claim subject of the in the TCT, and (2) that she is not the same person using that name who
action. entered into a deed of mortgage with the petitioner. This, Oliver 2 can do
in her complaint without necessarily impleading the Oliver 1. Hence,
Oliver 1 is not an indispensable party in the case filed by Oliver 2.
Remedial Law Review I – Civil Procedure
implead 7J. CA reversed and set aside the rulings of the LA and the
[T]hat a party is not indispensable to the suit if his interest in the NLRC thereby declaring Lotte as the real employer and that 7J who
controversy or subject matter is distinct and divisible from the interest of engaged in labor-only contracting was merely the agent of Lotte.
the other parties and will not necessarily be prejudiced by a judgment
which does complete justice to the parties in court. Chinabank has Issue: W/N 7J is an indispensable party and should have been
interest in the loan which, however, is distinct and divisible from the impleaded in respondents‘ petition in the CA.
mortgagor‘s interest, which involves the land used as collateral for the
loan. Further, a declaration of the mortgage‘s nullity in this case will not SC: Yes. An indispensable party is a party in interest without whom no
necessarily prejudice mortgagor Oliver 1. The bank still needs to initiate final determination can be had of an action, and who shall be joined
proceedings to go after the mortgagor, who in turn can raise other either as plaintiffs or defendants. The joinder of indispensable parties is
defenses pertinent to the two of them. mandatory. The presence of indispensable parties is necessary to vest
the court with jurisdiction, which is "the authority to hear and determine a
A party is also not indispensable if his presence would merely permit cause, the right to act in a case".
complete relief between him and those already parties to the action, or
will simply avoid multiple litigation, as in the case of Chinabank and Without the presence of indispensable parties to a suit or proceeding,
Oliver 1. The latter‘s participation in this case will simply enable judgment of a court cannot attain real finality. The absence of an
Chinabank to make its claim against her in this case, and hence, avoid indispensable party renders all subsequent actions of the court null and
the institution of another action. void for want of authority to act, not only as to the absent parties but
even as to those present.
[S]ince Oliver 1 is not an indispensable party, Section 7, Rule 3, which
requires compulsory joinder of indispensable parties in a case, does not 7J is an indispensable party. It is a party in interest because it will be
apply. Instead, it is Section 11, Rule 3, that applies. Non-joinder of affected by the outcome of the case. LA and NLRC found 7J solely liable
parties is not a ground for dismissal of an action. Parties may be added as the employer. CA rendered Lotte jointly and severally liable with 7J,
by order of the court, either on its own initiative or on motion of the who was not impleaded, by holding that the former is the real employer.
parties. Its decision directly affected 7J.

Lotte Philippines Co., Inc. vs De la Cruz: Lotte is a domestic Navarro vs Escobido: In September 12, 1998, respondent Karen Go
corporation where respondents are among those who were hired and filed 2 complaints before the RTC for replevin and/or sum of money with
assigned to the confectionery facility. On 14 December 1995 - and damages against Navarro. Karen prayed that the RTC issue writs of
yearly thereafter until the year 2000 - 7J Maintenance and Janitorial replevin for the seizure of 2 motor vehicles in Navarro‘s possession.
Services (7J) entered into a contract with Lotte. In compliance with the
terms and conditions of the service contract, and to accommodate the Navarro leased from plaintiff a certain motor vehicle as evidenced by a
needs of Lotte for personnel/workers to do and perform "piece works," LEASE AGREEMENT WITH OPTION TO PURCHASE entered into by
respondents, among others, were hired and assigned to Lotte as and between KARGO ENTERPRISES, then represented by its Manager,
repackers or sealers. However, either in October, 1999 or on February GLENN GO, and ROGER NAVARRO. Navarro issued post dated
9, 2000, Lotte dispensed with their services allegedly due to the checks. All checks bounced.
expiration/termination of the service contract by with 7J.
Navarro alleges that even if the lease agreements were in the name of
Respondents lodged a labor complaint against Lotte and 7J where the Kargo Enterprises, since it did not have the requisite juridical personality
LA rendered judgment declaring 7J as their employer. On appeal, NLRC to sue, the actual parties to the agreement are himself and Glenn Go.
affirmed the LA. Respondents filed a petition for certiorari in the CA, Since it was Karen Go who filed the complaints and not Glenn Go, she
insisting that their employer is Lotte. Lotte denied that respondents were was not a real party-in-interest and the complaints failed to state a cause
its employees and prayed that the petition be dismissed for failure to of action.
Remedial Law Review I – Civil Procedure
juridical personality, separate and distinct from that of each shareholder,
Navarro posits that the RTC erred when it ordered the amendment of the partner or member.
complaint to include Glenn Go as a co-plaintiff, instead of dismissing the
complaint outright because a complaint which does not state a cause of FIRST POINT: pursuant to Section 1, Rule 3 of the Rules, Kargo
action cannot be converted into one with a cause of action by a mere Enterprises cannot be a party to a civil action. Who then is the proper
amendment or a supplemental pleading. In effect, RTC created a cause party to file an action based on a contract in the name of Kargo
of action for Karen Go when there was none at the time she filed the Enterprises?
Juasing Hardware v. Mendoza: Finally, there is no law authorizing sole
Issue: Whether Karen T. Go is the real party in interest, considering that proprietorships like petitioner to bring suit in court. The law merely
it was her husband who signed the lease agreement and the lease recognizes the existence of a sole proprietorship as a form of business
contracts were in Kargo Enterprises‘ name, a trade name without a organization conducted for profit by a single individual, and requires the
juridical personality. proprietor or owner thereof to secure licenses and permits, register the
business name, and pay taxes to the national government. It does not
SC: Yes. The central factor in appreciating the issues presented in this vest juridical or legal personality upon the sole proprietorship nor
case is the business name Kargo Enterprises. The name appears in the empower it to file or defend an action in court. Thus, the complaint in the
title of the Complaint where the plaintiff was identified as "KAREN T. GO court below should have been filed in the name of the owner of Juasing
doing business under the name KARGO ENTERPRISES," and this Hardware. The allegation in the body of the complaint would show that
identification was repeated in the first paragraph of the the suit is brought by such person as proprietor or owner of the business
Complaint.Paragraph 2 defined the business KARGO ENTERPRISES conducted under the name and style Juasing Hardware. The descriptive
undertakes. Paragraph 3 continued with the allegation that the words "doing business as Juasing Hardware" may be added to the title
defendant "leased from plaintiff a certain motor vehicle" that was of the case, as is customarily done.
thereafter described. Significantly, the Complaint specifies and attaches
as its integral part the Lease Agreement that underlies the transaction This conclusion should be read in relation with Section 2, Rule 3 of the
between the plaintiff and the defendant. Again, the name KARGO Rules.
ENTERPRISES entered the picture as this Lease Agreement provides:
This agreement, made and entered into by and between: ―GLENN GO, SECOND POINT: As the registered owner of Kargo Enterprises, Karen
of legal age, married, herein referred to as the LESSOR-SELLER; is the party who will directly benefit from or be injured by a judgment in
representing KARGO ENTERPRISES as its Manager,‖ thus, expressly this case. Contrary to Navarro‘s contention, Karen is the real party-in-
pointing to KARGO ENTERPRISES as the principal that Glenn interest, and it is legally incorrect to say that her Complaint does not
represented. In other words, by the express terms of this Lease state a cause of action because her name did not appear in the Lease
Agreement, Glenn did sign the agreement only as the manager of Kargo Agreement that her husband signed in behalf of Kargo Enterprises.
Enterprises and the latter is clearly the real party to the lease
agreements. THIRD POINT: Glenn and Karen Go are effectively co-owners of Kargo
Enterprises and the properties registered under this name; hence, both
As Navarro correctly points out, Kargo Enterprises is a sole have an equal right to seek possession of these properties. Applying
proprietorship, which is neither a natural person, nor a juridical person, Article 484 of the Civil Code, which states that "in default of contracts, or
as defined by Article 44 of the Civil Code: The following are juridical special provisions, co-ownership shall be governed by the provisions of
persons: (1) The State and its political subdivisions; (2) Other this Title," we find further support in Article 487 of the Civil Code that
corporations, institutions and entities for public interest or purpose, allows any of the co-owners to bring an action in ejectment with respect
created by law; their personality begins as soon as they have been to the co-owned property.
constituted according to law; (3) Corporations, partnerships and
associations for private interest or purpose to which the law grants a
Remedial Law Review I – Civil Procedure
In sum, in suits to recover properties, all co-owners are real parties in
interest. However, pursuant to Article 487 of the Civil Code and relevant The failure to comply with the order for his inclusion, without justifiable
jurisprudence, any one of them may bring an action, any kind of action, cause, shall be deemed a waiver of the claim against such party.
for the recovery of co-owned properties. Therefore, only one of the co-
owners, namely the co-owner who filed the suit for the recovery of the The non-inclusion of a necessary party does not prevent the court from
co-owned property, is an indispensable party thereto. The other co- proceeding in the action, and the judgment rendered therein shall be
owners are not indispensable parties. They are not even necessary without prejudice to the rights of such necessary party.
parties, for a complete relief can be accorded in the suit even without
their participation, since the suit is presumed to have been filed for the Rule 3, Section 10. Unwilling co-plaintiff. — If the consent of any
benefit of all co-owners. party who should be joined as plaintiff can not be obtained, he may be
made a defendant and the reason therefor shall be stated in the
Either of the spouses Go may bring an action against Navarro to recover complaint.
possession of the Kargo Enterprises-leased vehicles which they co-own.
This conclusion is consistent with Article 124 of the Family Code, Rule 3, Section 11. Misjoinder and non-joinder of parties. — Neither
supporting as it does the position that either spouse may act on behalf of misjoinder nor non-joinder of parties is ground for dismissal of an action.
the conjugal partnership, so long as they do not dispose of or encumber Parties may be dropped or added by order of the court on motion of any
the property in question without the other spouse‘s consent. 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
FOURTH POINT: Glenn Go is not strictly an indispensable party in the proceeded with separately.
action to recover possession of the leased vehicles, he only needs to be
impleaded as a pro-forma party to the suit, based on Section 4, Rule 4 of Class suit
the Rules.
Rule 3, Section 12. Class suit. — When the subject matter of the
Even assuming that Glenn Go is an indispensable party to the action, we controversy is one of common or general interest to many persons so
have held in a number of cases that the misjoinder or non-joinder of numerous that it is impracticable to join all as parties, a number of them
indispensable parties in a complaint is not a ground for dismissal of which the court finds to be sufficiently numerous and representative as
action. The proper remedy when a party is left out is to implead the to fully protect the interests of all concerned may sue or defend for the
indispensable party at any stage of the action. The court, either motu benefit of all. Any party in interest shall have the right to intervene to
proprio or upon the motion of a party, may order the inclusion of the protect his individual interest.
indispensable party or give the plaintiff opportunity to amend his
complaint in order to include indispensable parties. If the plaintiff to Rule 3, Section 3. Representatives as parties. — Where the action is
whom the order to include the indispensable party is directed refuses to allowed to be prosecuted and defended by a representative or someone
comply with the order of the court, the complaint may be dismissed upon acting in a fiduciary capacity, the beneficiary shall be included in the title
motion of the defendant or upon the court's own motion. Only upon of the case and shall be deemed to be the real property in interest. A
unjustified failure or refusal to obey the order to include or to amend is representative may be a trustee of an expert trust, a guardian, an
the action dismissed. executor or administrator, or a party authorized by law or these Rules.
An agent acting in his own name and for the benefit of an undisclosed
Rule 3, Section 9. Non-joinder of necessary parties to be pleaded. principal may sue or be sued without joining the principal except when
— Whenever in any pleading in which a claim is asserted a necessary the contract involves things belonging to the principal.
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 Examples: guardian, administrator, executor. They are not the parties in
omission unmeritorious, it may order the inclusion of the omitted interest. They only filed the case for the parent/the minor children. The
necessary party if jurisdiction over his person may be obtained.
Remedial Law Review I – Civil Procedure
rule provides that when a representative party files a case, it is
mandatory that the parties in interest must be named. Rule 3, Section 16. Death of party; duty of counsel. — Whenever a
party to a pending action dies, and the claim is not thereby extinguished,
Bar question: How do you distinguish a representative party from a it shall be the duty of his counsel to inform the court within thirty (30)
class suit? This question is wrong because they have no common line of days after such death of the fact thereof, and to give the name and
distinction. You cannot distinguish a suit from a party. So you have to address of his legal representative or representatives. Failure of counsel
decipher what is really being asked here. What is being asked here is: to comply with his duty shall be a ground for disciplinary action.
distinguish a representative party from a party in a class suit.
The heirs of the deceased may be allowed to be substituted for the
What are the requirements in a class suit? The cause of action is deceased, without requiring the appointment of an executor or
common to many parties and the parties are so numerous that it is very administrator and the court may appoint a guardian ad litem for the
impractical to bring them all before the court. minor heirs.

A party in a class suit is one representing a class which has common The court shall forthwith order said legal representative or
issues to be threshed out while a representative party is not really a representatives to appear and be substituted within a period of thirty (30)
party in interest. He is only representing one who is the real party in days from notice.
If no legal representative is named by the counsel for the deceased
Death or separation of a party party, or if the one so named shall fail to appear within the specified
period, the court may order the opposing party, within a specified time to
In a suit, where a party dies, whether he is the plaintiff or the defendant, procure the appointment of an executor or administrator for the estate of
what does the rule provide during the pendency of the case? It is the the deceased and the latter shall immediately appear for and on behalf
obligation of the lawyer of the decedent to inform the court about the of the deceased. The court charges in procuring such appointment, if
death within thirty days. If he does not, that is not a ground for the defrayed by the opposing party, may be recovered as costs.
dismissal of the case. The adverse party‘s counsel is now obligated to
do the job of the counsel for the decedent. Rule 3, 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
In the first case, where the counsel for the decedent has the duty to capacity and during its pendency dies, resigns, or otherwise ceases to
inform the court, he has to substitute that without the appointment of an hold office, the action may be continued and maintained by or against
executor or administrator. But when it is the counsel of the adverse party his successor if, within thirty (30) days after the successor takes office or
who substitutes, it is required that there must be an executor or such time as may be granted by the court, it is satisfactorily shown to the
administrator appointed. 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
The appointment of the executor or administrator cannot be done easily adopt or continue to adopt or continue the action of his predecessor.
by motion. You have to file a separate petition for that under settlement Before a substitution is made, the party or officer to be affected, unless
of estate proceeding. expressly assenting thereto, shall be given reasonable notice of the
application therefor and accorded an opportunity to be heard.
There is a sanction on the part of the lawyer who does not comply with
this obligation. Transfer of interest

To compare that with section 17, it includes resignation and Rule 3, Section 19. Transfer of interest. — In case of any transfer of
incompetence and it refers to a public officer. The public officer MAY interest, the action may be continued by or against the original party,
(not mandatory) substitute or discontinue the case. unless the court upon motion directs the person to whom the interest is
Remedial Law Review I – Civil Procedure
transferred to be substituted in the action or joined with the original resulting judgments. In those instances, the courts acquired no
party. jurisdiction over the persons of the legal representatives or the heirs
upon whom no judgment was binding.
De la Cruz vs Joaquin: Pedro Joaquin filed a Complaint for the
recovery of possession and ownership, the cancellation of title, and This general rule notwithstanding, a formal substitution by heirs is not
damages, against petitioners in the RTC. Joaquin alleged that he had necessary when they themselves voluntarily appear, participate in the
obtained a loan from them on June 29, 1974, payable after 5 years. To case, and present evidence in defense of the deceased. These actions
secure the payment of the loan, he executed a Deed of Sale for a parcel negate any claim that the right to due process was violated.
of land in favor of petitioners. The parties also executed another
document entitled ―Kasunduan‖ which showed the Deed of Sale to be In Chittick v. CA, failure of the heirs to substitute for the original plaintiff
actually an equitable mortgage. Sps De la Cruz contended that this upon her death led to the nullification of the trial court‘s Decision. The
document was merely an accommodation to allow the repurchase of the latter had sought to recover support in arrears and her share in the
property, a right he failed to exercise. conjugal partnership. The children who allegedly substituted for her
refused to continue the case against their father and vehemently
RTC ruled in Joaquin‘s favor, declaring that the parties had entered into objected to their inclusion as parties. Because he died during the
a sale with a right of repurchase. Joaquin had made a valid tender of pendency of the case, they were bound to substitute for the defendant
payment on 2 separate occasions to exercise his right of repurchase. also. The substitution effectively merged the persons of the plaintiff and
Accordingly, petitioners were required to reconvey the property upon his the defendant and thus extinguished the obligation being sued upon.
The present case is not similar, much less identical, to the factual milieu
Sustaining the RTC, CA noted that the parties executed the Kasunduan of Chittick. The rule on the substitution by heirs is not a matter of
to express the terms and conditions of their actual agreement. CA jurisdiction, but a requirement of due process. When due process is not
denied reconsideration and ordered a substitution by legal violated, as when the right of the representative or heir is recognized
representatives, in view of Joaquin‘s death on December 24, 1988. and protected, noncompliance or belated formal compliance with the
Petitioners assert that the RTC‘s Decision was invalid for lack of Rules cannot affect the validity of a promulgated decision. Mere failure
jurisdiction. They claim that Joaquin died during the pendency of the to substitute for a deceased plaintiff is not a sufficient ground to nullify a
case. There being no substitution by the heirs, the RTC allegedly lacked trial court‘s decision. The alleging party must prove that there was an
jurisdiction over the litigation. undeniable violation of due process.

Issue: Whether RTC lost jurisdiction over the case upon the death of The records of the present case contain a ―Motion for Substitution of
Pedro Joaquin. Party Plaintiff‖ dated February 15, 2002, filed before the CA. The prayer
states as follows: ―WHEREFORE, it is respectfully prayed that the Heirs
SC: No. When a party to a pending action dies and the claim is not of the deceased plaintiff-appellee as represented by his daughter
extinguished, the Rules of Court require a substitution of the deceased Lourdes dela Cruz be substituted as party-plaintiff for the said Pedro
(Section 16 of Rule 3). The rule on the substitution of parties was crafted Joaquin.
to protect every party‘s right to due process. The estate of the deceased
party will continue to be properly represented in the suit through the duly ―It is further prayed that henceforth the undersigned counsel for the heirs
appointed legal representative. Moreover, no adjudication can be made of Pedro Joaquin be furnished with copies of notices, orders, resolutions
against the successor of the deceased if the fundamental right to a day and other pleadings at its address below.‖
in court is denied.
Evidently, the heirs of Pedro Joaquin voluntarily appeared and
The Court has nullified not only trial proceedings conducted without the participated. CA had ordered his legal representatives to appear and
appearance of the legal representatives of the deceased, but also the substitute for him. The substitution even on appeal had been ordered
Remedial Law Review I – Civil Procedure
correctly. In all proceedings, the legal representatives must appear to person being merely incidental, while in the causes of action which do
protect the interests of the deceased. After the rendition of judgment, not survive, the injury complained of is to the person, the property and
further proceedings may be held, such as a motion for reconsideration or rights of property affected being incidental.‖
a new trial, an appeal, or an execution.
Respondents are pursuing a property right arising from the kasunduan,
Considering the foregoing circumstances, the Motion for Substitution whereas petitioner is invoking nullity of the kasunduan to protect his
may be deemed to have been granted; and the heirs, to have substituted propriety interest. Assuming arguendo, however, that the kasunduan is
for the deceased, Pedro Joaquin. There being no violation of due deemed void, there is a corollary obligation of the petitioner to return the
process, the issue of substitution cannot be upheld as a ground to nullify money paid by respondents, and since the action involves property
the trial court‘s Decision. rights, it survives.

Carabeo vs Dingco: The parties entered into a contract of sale of a Trial on the merits was already concluded before petitioner died. Since
parcel of land for P38,000. The respondents paid P10,000 initial RTC was not informed of the petitioner‘s death, it may not be faulted for
payment upon signing the contract with the balance to be paid in proceeding to render judgment without ordering his substitution. Its
September 1990. Respondents handed in parts P9,100 of the balance judgment is thus valid and binding upon petitioner‘s legal representative
despite the petitioner asking them not to do so yet because the latter or successors-in-interest, insofar as his interest in the property subject of
had to settle a ―squabble‖ over the land. After the dispute over the land‘s the action is concerned.
registration was settled, the respondents offered to pay the balance, but
the petitioner declined acceptance. The respondents filed a complaint In another vein, the death of a client immediately divests the counsel of
with the katarungan pambarangay. No settlement was reached so the authority. Thus, in filing a Notice of Appeal, petitioner‘s counsel of record
respondents filed for specific performance with the RTC. Petitioner had no personality to act on behalf of the already deceased client who, it
stated in his answer that the sale was void for lack of an object certain bears reiteration, had not been substituted as a party after his death.
since the kasunduan did not specify the metes and bounds of the land. The trial court‘s decision had thereby become final and executor, no
The petitioner also alleged that even if the kasunduan were valid, the appeal having been perfected.
respondent‘s failure to comply with their reciprocal obligation to pay the
balance of the purchase price would render the action premature. Contractual Money claims

Prior to the decision of the case, the petitioner died. Records do not Rule 3, Section 20. Action and contractual money claims. — When
show that his counsel informed the RTC of his death and that the proper the action is for recovery of money arising from contract, express or
substitution was effected. RTC ruled in favor of the respondents ordering implied, and the defendant dies before entry of final judgment in the
the petitioner to sell his rights over the property. CA affirmed. The motion court in which the action was pending at the time of such death, it shall
for reconsideration was denied so the present petition was filed by the not be dismissed but shall instead be allowed to continue until entry of
deceased‘s son. final judgment. A favorable judgment obtained by the plaintiff therein
shall be enforced in the manner especially provided in these Rules for
Issue: Should the petition of the respondents have been dismissed on prosecuting claims against the estate of a deceased person.
the ground of the death of the original petitioner?
When the defendant dies, pendente lite, the case shall not be dismissed
SC: No. Respecting the argument that the petitioner‘s death rendered but shall move on up to entry of judgment. This is a U-turn from the 1960
the respondents‘ complaint against him dismissible, Bonilla vs. Barcena Rules of Court where the case must be dismissed. The reason is to
enlightens: ―The question as to whether an action survives or not expedite the proceeding.
depends on the nature of the action and the damages sued for. In the
causes of action which survive, the wrong complained of affects A final judgment is different from an entered judgment. Even if there is
primarily and principally property and property rights, the injuries to the an appeal, the appeal continues. Even if there is a petition for review
Remedial Law Review I – Civil Procedure
after the appeal, the petition continues. It must conclude up to entry of file a settlement of estate proceeding. Is A authorized to do that? Yes.
judgment. Who may file a settlement of the estate? A creditor may do so.

After entry of judgment, what is the next move of the judgment obligee? But if there is already a pending settlement of the estate, A should just
Ordinarily, you avail of Rule 39 (Execution of Judgment). Here, do you submit a copy of the judgment together with the entry of judgment.
avail of Rule 39? No. there is a cross-reference to Rule 86, which Under settlement of estate proceedings, you apply for preference of
provides the 4 matters claimable under the estate: credits.

1. All claims for money against the decent, arising from contract, A is riding his car along Roxas Boulevard and he collided with another
express or implied, whether the same be due, not due, or car driven by B, and nobody would like to accept obligation or liability. A
contingent; filed a case for sum of money against B. B, pendente lite, dies. Can you
2. All claims for funeral expenses; apply Section 20? No, Section 20 deals with contractual money claims.
3. Expense for the last sickness of the decedent, and There is no contract in this case.
4. Judgment for money against the decent.
If B is a taxi driver and A is his passenger, this becomes a contractual
Rule 87 is an action for or against executors or administrators. All other money claim (based on the contract of transportation) if A files a suit.
actions except those which are claimable against the estate may be
brought for or against the executor or administrator. D. Venue of actions: real and personal actions

Section 20 must always be correlated with Rule 86 and 87 to see a The venue of an action is what the law or rule provides (Example: Give
bird‘s eye view of the entire provisions. a law providing for the venue of an action: Rule 66 or petition for quo
warranto, where the venue is the residence of the respondent. In a
So if you file it as a claim against the estate, how do you go about it? special proceeding for guardianship, the venue is the residence of the
ward. In adoption, the venue is the residence of the prospective adopter.
A vs B, this is a contractual money claim. B borrowed P1,000,000 from In these cases, you cannot agree otherwise).
A. This is a contract of loan. B did not pay so A filed a case for sum of
money based on contract (contractual money claim). B died. The case In the absence of any rule, the agreement of the parties will govern. See
must continue up to entry of judgment. When there is already an entry of Pacific Consultants Philippines, Inc. (PPI) vs Schonfeld
judgment, what should A do? He cannot avail of Rule 39/ he cannot go
to court and file a motion for execution because the defendant here In the absence of any agreement, you distinguish whether the action is
already died. real or personal. If it is a personal action, the venue is the residence of
the plaintiff, or any of the plaintiffs, or the residence of the defendant, or
He must file it as a claim against the estate. How? You cannot claim any of the defendants, at the option of the plaintiff. If it is a real action,
against the heirs of the decedent. It must be claimed against the estate. the venue is where the property is located.
The heirs are different from the estate. If the heirs would be representing
the estate, that would be another matter. Rule 4, Section 1. Venue of real actions. — Actions affecting title to or
possession of real property, or interest therein, shall be commenced and
How will the judgment obligee, A, file a claim against the estate of B? tried in the proper court which has jurisdiction over the area wherein the
There is a procedure under Rule 86. real property involved, or a portion thereof, is situated.

If there is already a pending settlement of the estate, it would be easier. Forcible entry and detainer actions shall be commenced and tried in the
If there is no pending settlement of the estate of the decedent, A should municipal trial court of the municipality or city wherein the real property
involved, or a portion thereof, is situated.
Remedial Law Review I – Civil Procedure
however, informed via email to stay put in his job until even after August
Rule 4, Section 2. Venue of personal actions. — All other actions may 5 until such time that he would be able to report on certain projects and
be commenced and tried where the plaintiff or any of the principal discuss all the opportunities he had developed. He continued his work
plaintiffs resides, or where the defendant or any of the principal until October 1, 1999.
defendants resides, or in the case of a non-resident defendant where he
may be found, at the election of the plaintiff. Schonfeld filed several money claims with PPI, and also filed a
complaint for illegal dismissal with the Labor Arbiter. PCIJ and PPI filed
Rule 4, Section 3. Venue of actions against nonresidents. — If any a Motion to Dismiss on the ground of improper venue: He was a
of the defendants does not reside and is not found in the Philippines, Canadian citizen, employed and dismissed by PCIJ whose principal
and the action affects the personal status of the plaintiff, or any property office is in Japan, and the letter of employment was executed in Japan.
of said defendant located in the Philippines, the action may be Under lex loci contractus, the complaint should have been filed in Tokyo.
commenced and tried in the court of the place where the plaintiff resides, Also, the parties agreed that any employment-related dispute should be
or where the property or any portion thereof is situated or found. brought before the London Court of Arbitration.

Rule 4, Section 4. When Rule not applicable. — This Rule shall not LA found that the contract of employment was controlling; the case
apply. should be submitted to the jurisdiction of the court of arbitration in
London. The NLRC likewise agreed with the LA. The CA ruled in favor of
(a) In those cases where a specific rule or law provides otherwise; or PPI and PCIJ. Even under the contract of employment, the parties were
not precluded from bringing a case related thereto in other venues.
(b) Where the parties have validly agreed in writing before the filing of While there was an agreement, the venue is not exclusive since there
the action on the exclusive venue thereof. was no stipulation to that effect.

Pacific Consultants Philippines, Inc. (PPI) vs Schonfeld: Venue SC: The case may be filed and tried in Philippine courts. The settled rule
stipulation is just for the convenience of the parties. It is not restrictive on stipulations regarding venue is that while they are valid and
unless it includes an exclusivity clause. The word ‗shall‘ does not denote enforceable, venue stipulations in a contract do not, as a rule, supersede
that the stipulation is exclusive. A stronger word than shall must be the general rule set forth in Rule 4 of the ROC in the absence of
used. Words that may be used: ―exclusive‖, ―in no other place‖. qualifying or restrictive words. Any agreement of venue, without such
restrictive words should be considered merely as an agreement or
Schonfeld was a non-resident Canadian citizen. He was employed by additional forum, not as a limiting venue to the specified place. They are
Pacific Consultants International of Japan (PCIJ) as Sector Manager of not exclusive but, rather permissive. If the intention of the parties were to
PPI in the Philippines. His salary was paid partly by PPI and PCIJ. restrict venue, there must be accompanying language clearly and
Henrichsen, president of PPI and director of PCIJ, transmitted a letter of categorically expressing their purpose and design that actions between
employment to Schonfeld requesting him to accept and affix his them be litigated only at the place named by them.
conformity. The letter provides: in case of any question of interpretation
of the conditions of employment, as well as any question arising E. Summary Procedure
between the employee and the company which is in consequence of or
connected with his employment, which cannot be settled amicably, Rule 5, Section 1. Uniform procedure. — The procedure in the
should be finally settled by the Court of Arbitration in London through Municipal Trial Courts shall be the same as in the Regional Trial Courts,
written submissions. except (a) where a particular provision expressly or impliedly applies
only to either of said courts, or (b) in civil cases governed by the Rule on
Schonfeld arrived in the Philippines and was given the status of a Summary Procedure.
resident alien. Later, Henrichsen informed Schonfeld that his
employment had been terminated effective August 4, 1999. He was, Uniformity rule – the Rules of Court applies in all courts.
Remedial Law Review I – Civil Procedure
If D impleads Y, D would be a fourth-party plaintiff and Y would be a
Correlate this with Rule 1, regarding the non-application of the Rules to fourth-party defendant.
naturalization cases, land registration cases, cadastral cases, election
cases, insolvency proceedings. C can also file a complaint (a third party complaint). D can file a fourth
party complaint.
Section 4. In what case not applicable. — These Rules shall not apply
to election cases, land registration, cadastral, naturalization and D can answer the third-party complaint through an answer to a third
insolvency proceedings, and other cases not herein provided for, except party complaint. When D answers, that is also an answer to the original
by analogy or in a suppletory character and whenever practicable and complaint because there could be no third-party complaint without the
convenient. original complaint.

In Ong Chia vs Republic, Ong Chia was the foreigner who applied to The claim of B against A is a separate and distinct pleading called the
be a naturalized Filipino citizen. It was granted by the trial court. The counterclaim. The counterclaim is not the answer; it is the complaint of
government, through the OSG, appealed the case. In the appellate the defendant against the plaintiff. A‘s answer to the counterclaim is not
court, the Republic offered certain pieces of documentary evidence the reply. The reply is the response to the answer but the answer to the
which were not offered in the trial court. Ong Chia questioned that, counterclaim is an answer to the counterclaim of the defendant as
claiming the evidence should not be admitted since they were never against the plaintiff.
offered. SC: In naturalization cases, applying Rule 1, the Rules of Court
are not applicable but only in suppletory character. E – intervenor

Under Rule 5 as well, you have to take note of Summary Procedure. E is an outsider; an intervenor under Rule 19. He is never impleaded by
any of the parties. He impleads himself. Rule 19 provides that he must
have interest in the subject matter (if the case is for recovery of property,
he must have an interest in the property, ex: he may be the
III. RULES 6 TO 9: PLEADINGS AND DEFAULTS owner/mortgagor/mortgagee/possessor of the property).

A – Plaintiff You must never confuse an intervention with an interpleader. The basic
B – Defendant distinction is that while an intervenor, E, has interest in the subject
matter, an interpleader has no interest in the subject matter.
A files a complaint against B. B files an answer. A files a reply.
A. Kinds of Pleadings
These are the major pleadings: complaint, answer and reply.
Rule 6, Section 1. Pleadings defined. — Pleadings are the written
C – Co-defendant statements of the respective claims and defenses of the parties
submitted to the court for appropriate judgment.
B files a cross-claim against C. C can also file a cross-claim against B. B
or C may interplead D. Rule 6, Section 2. Pleadings allowed. — The claims of a party are
asserted in a complaint, counterclaim, cross-claim, third (fourth, etc.)-
D – third-party defendant party complaint, or complaint-in-intervention.

In relation to D, C would be a third-party plaintiff. Third-party defendant is someone different from the original parties, for
purposes of contribution, indemnification or subrogation. The answer
must already include allegations against the original complaint.
Remedial Law Review I – Civil Procedure
There are several kinds of affirmative defenses: fraud, statute of
Complaint and Answer limitations, release, payment, illegality, statute of frauds, estoppel,
former recovery, discharge in bankruptcy, and any other matter by way
Rule 6, Section 3. Complaint. — The complaint is the pleading alleging of confession and avoidance. This list is not exclusive.
the plaintiff's cause or causes of action. The names and residences of
the plaintiff and defendant must be stated in the complaint. In the rules of evidence, when you put up an affirmative defense,
whether in civil or criminal cases, you have what you call reverse trial.
Rule 6, Section 4. Answer. — An answer is a pleading in which a
defending party sets forth his defenses. Reverse trial is a process whereby the defendant puts up an affirmative
defense and therefore, there is an admission already on his part of the
The complaint constitutes the allegations or the claim of the plaintiff allegations in the pleading. That is why you reverse the trial.
against the defendant. The defendant‘s answer is the response to the
claim of the plaintiff. The answer constitutes defenses. In criminal cases, there are no pleadings, except the information. The
information is read, under Rule 116, before the start of the trial (during
Defenses: Negative and Affirmative arraignment) and then the accused puts up an affirmative defense (ex.
self-defense in a murder case). It amounts to saying that he admits the
Rule 6, Section 5. Defenses. — Defenses may either be negative or allegations. When this happens, there is reverse trial. There is no need
affirmative. to prove that the accused killed the victim because he already admitted
it. There is no need to show evidence-in-chief. The trial starts with the
(a) A negative defense is the specific denial of the material fact or facts accused and he puts up the defense of self-defense. If it is necessary,
alleged in the pleading of the claimant essential to his cause or causes the prosecution puts up rebuttal evidence.
of action.
Negative pregnant – a term in contradiction. When you invoke negative
(b) An affirmative defense is an allegation of a new matter which, while pregnant, in effect, you are admitting what you seek to deny. That‘s why
hypothetically admitting the material allegations in the pleading of the you can never use negative pregnant if the allegation is a simple
claimant, would nevertheless prevent or bar recovery by him. The declarative sentence.
affirmative defenses include fraud, statute of limitations, release,
payment, illegality, statute of frauds, estoppel, former recovery, Example: Defendant borrowed money from the plaintiff in the amount of
discharge in bankruptcy, and any other matter by way of confession and P100,000. This is a simple declarative sentence so you cannot invoke
avoidance. here negative pregnant.

2 modes of negative defense: But if you qualify that in such manner that it becomes a compound,
(1) specific denial – give the reason for your denial complex declaration, then negative pregnant might come out:
(2) lack of knowledge sufficient to form belief as to the truth of the claim
Defendant borrowed money from the plaintiff in the amount of P100,000
Affirmative defense – admission of the allegation but you put up a new when the plaintiff was playing basketball.
subject matter so as to avoid the claim. Ex: defendant borrowed
P100,000 from the plaintiff. If you invoke an affirmative defense, you‘ll I deny that I borrowed money from the plaintiff in the amount of
say that you have paid the P100,000 that you borrowed from the plaintiff. P100,000 when the plaintiff was playing basketball. This is a negative
In effect, you are admitting that you borrowed money but you put up a pregnant because it proves that he did borrow money, but not at the time
new matter, which is payment, to avoid the claim. the plaintiff he was playing basketball.

Remedial Law Review I – Civil Procedure

Republic vs Sandiganbayan: This case involved a negative pregnant. admitted by them pursuant to Section 11, Rule 8 of the 1997 Revised
It was alleged that Imelda had 15 Swiss accounts. Imelda said no, she Rules on Civil Procedure
only had 7 Swiss accounts. So she admitted she had Swiss account.
The matters referred to in paragraphs 23 to 26 of the respondents'
Republic, through the PCGG filed a petition for forfeiture before the answer pertained to the creation of five groups of accounts as well as
Sandiganbayan against Ferdinand Marcos, represented by his their respective ending balances and attached documents alleged in
Estate/Heirs and Imelda Marcos. Republic sought the declaration of the paragraphs 24 to 52 of the Republic's petition for forfeiture. Respondent
aggregate amount of US$356 million deposited in escrow in the PNB, as Imelda R. Marcos never specifically denied the existence of the Swiss
ill-gotten wealth. The funds were previously held in 5 account groups, funds. Her claim that "the funds involved were lawfully acquired" was an
using various foreign foundations in certain Swiss banks. Petitioner filed acknowledgment on her part of the existence of said deposits. This only
a complaint and respondent an answer. reinforced her earlier admission of the allegation in paragraph 23 of the
petition for forfeiture regarding the existence of the US$356 million
Petitioner, in the main, asserts that nowhere in the respondents' motions Swiss bank deposits.
for reconsideration and supplemental motion for reconsideration were
the authenticity, accuracy and admissibility of the Swiss decisions ever Caneland Sugar Corp. vs Alon: Petitioner does not dispute its loan
challenged. obligation with respondent. Petitioner‘s bone of contention before the
RTC is that the promissory notes are silent as to whether they were
SC: This particular denial had the earmark of what is called in the law on covered by the Mortgage Trust Indenture and Mortgage Participation on
pleadings as a negative pregnant, that is, a denial pregnant with the its property. It does not categorically deny that these promissory notes
admission of the substantial facts in the pleading responded to which are are covered by the security documents. These vague assertions are, in
not squarely denied. It was in effect an admission of the averments it fact, negative pregnants, i.e., denials pregnant with the admission of the
was directed at. Stated otherwise, a negative pregnant is a form of substantial facts in the pleading responded to which are not squarely
negative expression which carries with it an affirmation or at least an denied.
implication of some kind favorable to the adverse party. It is a denial
pregnant with an admission of the substantial facts alleged in the A negative pregnant is a "form of negative expression which carries with
pleading. Where a fact is alleged with qualifying or modifying language it an affirmation or at least an implication of some kind favorable to the
and the words of the allegation as so qualified or modified are literally adverse party. It is a denial pregnant with an admission of the
denied, has been held that the qualifying circumstances alone are substantial facts alleged in the pleading. Where a fact is alleged with
denied while the fact itself is admitted. qualifying or modifying language and the words of the allegation as so
qualified or modified are literally denied, has been held that the
The material allegations in paragraph 23 of the said petition were not qualifying circumstances alone are denied while the fact itself is
specifically denied by respondents in paragraph 22 of their answer. The admitted."
denial contained in paragraph 22 of the answer was focused on the
averment in paragraph 23 of the petition for forfeiture that "Respondents Petitioner‘s allegations do not make out any justifiable basis for the
clandestinely stashed the country's wealth in Switzerland and hid the granting of any injunctive relief. Even when the mortgagors were
same under layers and layers of foundations and corporate entities." disputing the amount being sought from them, upon the non-payment of
Paragraph 22 of the respondents' answer was thus a denial pregnant the loan, which was secured by the mortgage, the mortgaged property is
with admissions of the following substantial facts: properly subject to a foreclosure sale. This is in consonance with the
doctrine that to authorize a temporary injunction, the plaintiff must show,
Therefore, the allegations in the petition for forfeiture on the existence of at least prima facie, a right to the final relief.
the Swiss bank deposits in the sum of about US$356 million, not having
been specifically denied by respondents in their answer, were deemed Counterclaims: Compulsory and Permissive

Remedial Law Review I – Civil Procedure

Rule 6, Section 6. Counterclaim. — A counterclaim is any claim which Alday vs FGU Insurance: FGU filed a complaint with the RTC alleging
a defending party may have against an opposing party. that Alday owed it unliquidated cash advances, unremitted costs of
premiums and other charges she incurred in the course of her work as
Rule 6, Section 7. Compulsory counterclaim. — A compulsory an insurance agent. FGU also prayed for exemplary damages,
counterclaim is one which, being cognizable by the regular courts of attorney‘s fees, and costs of suit.
justice, arises out of or is connected with the transaction or occurrence
constituting the subject matter of the opposing party's claim and does Alday filed her answer and a counterclaim where she asserted her right
not require for its adjudication the presence of third parties of whom the for the payment of direct commissions, profit commissions, contingent
court cannot acquire jurisdiction. Such a counterclaim must be within the bonuses and accumulated premium reserves. She also prayed for
jurisdiction of the court both as to the amount and the nature thereof, attorney‘s fees, litigation expenses, moral damages and exemplary
except that in an original action before the Regional Trial Court, the damages for the allegedly unfounded action filed by GFU.
counter-claim may be considered compulsory regardless of the amount.
FGU filed a motion to strike out answer with compulsory counterclaim
Counterclaim – it is neither an answer nor a reply. It is the complaint of and to declare defendant in default because her answer was allegedly
the defendant against the plaintiff. It is a totally separate pleading. filed out of time. The RTC denied FGU‘s motion and its MR. FGU then
filed a motion to dismiss Alday‘s counterclaim. It contended that RTC
2 kinds of counterclaim: never acquired jurisdiction over the same because of the non-payment
(1) compulsory – is that which arises from the same transaction or series of docket fees. Alday asked the RTC to declare her counterclaim as
of transactions exempt from payment of docket fees since it is compulsory and that
(2) permissive – does not arise from the same transaction respondent be declared in default for having failed to answer the
counterclaim. RTC granted FGU‘s motion to dismiss the counterclaim
Alday vs FGU Insurance: What are the indicia of a compulsory and consequently, denied Alday‘s motion. The RTC found that the
counterclaim? Alday was an insurance agent. She was sued by FGU for counterclaim is permissive in nature and held that Alday‘s failure to pay
non-remittance of premiums. Alday set-up a counterclaim saying FGU docket fees prevented the court from acquiring jurisdiction over it. The
didn‘t pay her bonuses, commissions. And because of the complaint, RTC likewise denied her MR. CA sustained the RTC‘s order and denied
she suffered sleepless nights, wounded feelings, etc. FGU said since the Alday‘s MR.
counterclaim is permissive and Alday did not pay the docket fees, the
trial court did not acquire jurisdiction over the counterclaim. SC: A compulsory counterclaim is one which, being cognizable by the
regular courts of justice, arises out of or is connected with the
SC held that the counterclaim of Alday is of 2 kinds. Some counterclaims transaction or occurrence constituting the subject matter of the opposing
are compulsory, and those do not require docket fees. Some are party‘s claim and does not require for its adjudication the presence of
permissive. Because they did not arise from the complaint, therefore, it third parties of whom the court cannot acquire jurisdiction.
is a permissive counterclaim. Alday only had to pay for the permissive
counterclaim. Petitioner‘s counterclaim for commissions, bonuses, and accumulated
premium reserves is merely permissive. The evidence required to prove
This doctrine of Alday was overruled in January 2008 by Korea petitioner‘s claims differs from that needed to establish respondent‘s
Technologies Incorporated, where the SC said as of August 13, 2004, demands for the recovery of cash accountabilities from petitioner, such
all kinds of counterclaim must be paid irrespective of whether they are as cash advances and costs of premiums. The recovery of respondent‘s
compulsory or permissive. There was a howl of protest. By October of claims is not contingent or dependent upon establishing petitioner‘s
the same year, SC reversed their own doctrine and went back to Alday counterclaim, such that conducting separate trials will not result in the
vs FGU through Mercado vs CA. substantial duplication of the time and effort of the court and the parties.
One would search the records in vain for a logical connection between
the parties‘ claims. This conclusion is further reinforced by petitioner‘s
Remedial Law Review I – Civil Procedure
own admissions since she declared in her answer that respondent‘s over such claim. Meanwhile, the compulsory counterclaim of petitioner
cause of action, unlike her own, was not based upon the Special Agent‘s for damages based on the filing by respondent of an allegedly
Contract. However, petitioner‘s claims for damages, allegedly suffered unfounded and malicious suit need not be answered since it is
as a result of the filing by respondent of its complaint, are compulsory. inseparable from the claims of respondent. If respondent were to
answer the compulsory counterclaim of petitioner, it would merely result
There is no need for petitioner to pay docket fees for her compulsory in the former pleading the same facts raised in its complaint.
counterclaim. On the other hand, in order for the RTC to acquire
jurisdiction over her permissive counterclaim, petitioner is bound to pay Criteria or tests that may be used in determining whether a counterclaim
the prescribed docket fees. The rule on the payment of filing fees has is compulsory or permissive, summarized as follows:
been laid down by the Court in the case of Sun Insurance Office, Ltd. v.
Hon. Maximiano Asuncion: 1. Are the issues of fact and law raised by the claim and counterclaim
largely the same?
1. It is not simply the filing of the complaint or appropriate initiatory
pleading, but the payment of the prescribed docket fee, that vests a trial 2. Would res judicata bar a subsequent suit on defendant‘s claim absent
court with jurisdiction over the subject-matter or nature of the action. the compulsory counterclaim rule?
Where the filing of the initiatory pleading is not accompanied by payment
of the docket fee, the court may allow payment of the fee within a 3. Will substantially the same evidence support or refute plaintiff‘s claim
reasonable time but in no case beyond the applicable prescriptive or as well as defendant‘s counterclaim? (Evidence test rule)
reglementary period.
4. Is there any logical relation between the claim and the counterclaim?
2. The same rule applies to permissive counterclaims, third-party claims (Logical relationship rule)
and similar pleadings, which shall not be considered filed until and
unless the filing fee prescribed therefor is paid. The court may allow Korea Technologies Co., Ltd. (KOGIES) vs Lerma: The rules on the
payment of said fee within a reasonable time but also in no case beyond payment of docket fees for counterclaims and cross claims were
its applicable prescriptive or reglementary period. amended effective August 16, 2004.

3. Where the trial court acquires jurisdiction over a claim by the filing of KOGIES strongly argues that when PGSMC filed the counterclaims, it
the appropriate pleading and payment of the prescribed filing fee but, should have paid docket fees and filed a certificate of non-forum
subsequently, the judgment awards a claim not specified in the pleading, shopping, and that its failure to do so was a fatal defect.
or if specified the same has been left for determination by the court, the
additional filing fee therefor shall constitute a lien on the judgment. It We disagree with KOGIES. The counterclaims of PGSMC were
shall be the responsibility of the Clerk of Court or his duly authorized incorporated in its Answer with Compulsory Counterclaim in accordance
deputy to enforce said lien and assess and collect the additional fee. with Section 8 of Rule 11, the rule that was effective at the time the
Answer with Counterclaim was filed. Sec. 8 on existing counterclaim or
Although the payment of the prescribed docket fees is a jurisdictional cross-claim states, ―A compulsory counterclaim or a cross-claim that a
requirement, its non-payment does not result in the automatic dismissal defending party has at the time he files his answer shall be contained
of the case provided the docket fees are paid within the applicable therein.‖
prescriptive or reglementary period.
At the time PGSMC filed its Answer incorporating its counterclaims
Was FGU in default for failing to answer petitioner‘s counterclaim? No. against KOGIES, it was not liable to pay filing fees for said
Insofar as the permissive counterclaim of petitioner is concerned, there counterclaims being compulsory in nature. However, effective August
is obviously no need to file an answer until petitioner has paid the 16, 2004 under Sec. 7, Rule 141, as amended by A.M. No. 04-2-04-SC,
prescribed docket fees for only then shall the court acquire jurisdiction
Remedial Law Review I – Civil Procedure
docket fees are now required to be paid in compulsory counterclaim or annulling the continuing hold-out agreement and deed of assignment.
cross-claims. RTC denied the motion. Instead, it set the case for pre-trial. Thereafter,
trial ensued. RTC dismissed the complaint and ordered Mercado and
Mercado vs CA: Leonides Mercado had been distributing respondent EASCO (to the extent of P2.6 million or the value of its bonds) to jointly
San Miguel Corporation‘s (SMC‘s) beer products since 1967. In 1991, and severally pay SMC P7,468,153.75.
SMC extended to him a P7.5 million credit line allowing him to withdraw
goods on credit. To secure his purchases, Mercado assigned 3 China Mercado and EASCO appealed to the CA, insisting that Mercado did not
Banking Corporation (CBC) certificates of deposit amounting to P5 default in the payment of his obligations to SMC. CA affirmed the RTC
million to SMC and executed a continuing hold-out agreement stating: decision in toto. Mercado and EASCO both moved for reconsideration
―Any demand made by [SMC] on [CBC], claiming default on my/our part but their respective motions were denied. EASCO filed a petition for
shall be conclusive on [CBC] and shall serve as absolute authority for review on certiorari in this Court but eventually agreed to settle its
[CBC] to encash the [CBC certificates of deposit] xxx, whether or not liability with SMC. The petition was terminated. Meanwhile, Mercado
I/we have in fact defaulted on any of my/our obligations with [SMC], it passed away and was substituted by his heirs, petitioners Racquel,
being understood that the issue of whether or not there was factual Jimmy, Henry, Louricar and Virgilio Mercado. Petitioners subsequently
default must be threshed out solely between me/us and [SMC].‖ He also filed this petition asserting that the CA erred in affirming the RTC
submitted 3 surety bonds from Eastern Assurance and Surety decision in toto. The said decision (insofar as it ordered Mercado to pay
Corporation (EASCO) for P2.6 million. SMC P7,468,153.75) was void. SMC‘s counterclaim was permissive in
nature. Inasmuch as SMC did not pay docket fees, the RTC never
SMC notified CBC that Mercado failed to pay for the items he withdrew acquired jurisdiction over the counterclaim.
on credit. Citing the continuing hold-out agreement, it asked CBC to
release the proceeds of the assigned certificates of deposit. CBC SC: RTC acquired jurisdiction although SMC did not pay docket fees. A
approved SMB‘s request and informed Mercado. Mercado filed an action counterclaim (or a claim which a defending party may have against any
to annul the continuing hold-out agreement and deed of assignment in party) may be compulsory or permissive. A counterclaim that (1) arises
the RTC. He claimed that the continuing hold-out agreement allowed out of (or is necessarily connected with) the transaction or occurrence
forfeiture without the benefit of foreclosure. It was therefore void that is the subject matter of the opposing party‘s claim; (2) falls within the
pursuant to Article 2088 of the Civil Code. Moreover, Mercado argued jurisdiction of the court and (3) does not require for its adjudication the
that he had already settled his recent purchases on credit but SMC presence of third parties over whom the court cannot acquire jurisdiction,
erroneously applied the said payments to his old accounts not covered is compulsory. Otherwise, a counterclaim is merely permissive.
by the continuing hold-out agreement (i.e., purchases made prior to the
extension of the credit line). When Mercado sought to annul the continuing hold-out agreement and
deed of assignment, he in effect sought to be freed from them. While he
SMC filed its answer with counterclaim against Mercado. It contended admitted having outstanding obligations, he nevertheless asserted that
that Mercado delivered only 2 CBC certificates of deposit amounting to those were not covered by the assailed accessory contracts. For its part,
P4.5 million and asserted that the execution of the continuing hold-out aside from invoking the validity of the said agreements, SMC therefore
agreement and deed of assignment was a recognized business practice. sought to collect the payment for the value of goods Mercado purchased
Furthermore, because Mercado admitted his outstanding liabilities, SMC on credit. Thus, Mercado‘s complaint and SMC‘s counterclaim both
sought payment of the lees products he withdrew (or purchased on touched the issues of whether the continuing hold-out agreement and
credit) worth P7,468,153.75. SMC filed a third-party complaint against deed of assignment were valid and whether Mercado had outstanding
EASCO. It sought to collect the proceeds of the surety bonds submitted liabilities to SMC. The same evidence would essentially support or refute
by Mercado. Mercado‘s claim and SMC‘s counterclaim.

Mercado filed an urgent manifestation and motion seeking the dismissal Based on the foregoing, had these issues been tried separately, the
of the complaint. He claimed that he was no longer interested in efforts of the RTC and the parties would have had to be duplicated.
Remedial Law Review I – Civil Procedure
SMC‘s counterclaim, being logically related to Mercado‘s claim, was Exceptions: (1) when the answer sets up a new matter, there is a
compulsory in nature. Consequently, the payment of docket fees was necessity of a reply. (2) When the defendant avails of an actionable
not necessary for the RTC to acquire jurisdiction over the subject matter. document, you have to file a reply. Otherwise, the authenticity and due
execution of the document are deemed admitted.
Rule 6, 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 Rule 8, Section 7. Action or defense based on document. —
is the subject matter either of the original action or of a counterclaim Whenever an action or defense is based upon a written instrument or
therein. Such cross-claim may include a claim that the party against document, the substance of such instrument or document shall be set
whom it is asserted is or may be liable to the cross-claimant for all or forth in the pleading, and the original or a copy thereof shall be attached
part of a claim asserted in the action against the cross-claimant. to the pleading as an exhibit, which shall be deemed to be a part of the
pleading, or said copy may with like effect be set forth in the pleading.
Cross-claim – between the defendants. This is the complaint of the co-
defendant against his co-defendant for purposes of contribution, Rule 8, Section 8. How to contest such documents. — When an
subrogation or indemnification. action or defense is founded upon a written instrument, copied in or
attached to the corresponding pleading as provided in the preceding
B borrowed money from A in the amount of P500,000. A knows the section, the genuineness and due execution of the instrument shall be
P500,000 will be used by B and C. B did not pay. A can file a case deemed admitted unless the adverse party, under oath specifically
impleading alternative defendants. B, in the same case, can file a cross- denies them, and sets forth what he claims to be the facts, but the
claim against his co-defendant asking for contribution. requirement of an oath does not apply when the adverse party does not
appear to be a party to the instrument or when compliance with an order
Rule 6, Section 9. Counter-counterclaims and counter-crossclaims. for an inspection of the original instrument is refused.
— A counter-claim may be asserted against an original counter-
claimant. B. Parts of a Pleading

A cross-claim may also be filed against an original cross-claimant. Rule 7, Section 1. Caption. — The caption sets forth the name of the
court, the title of the action, and the docket number if assigned.
The title of the action indicates the names of the parties. They shall all
Rule 6, Section 10. Reply. — A reply is a pleading, the office or be named in the original complaint or petition; but in subsequent
function of which is to deny, or allege facts in denial or avoidance of new pleadings, it shall be sufficient if the name of the first party on each side
matters alleged by way of defense in the answer and thereby join or be stated with an appropriate indication when there are other parties.
make issue as to such new matters. If a party does not file such reply, all
the new matters alleged in the answer are deemed controverted. Their respective participation in the case shall be indicated.

If the plaintiff wishes to interpose any claims arising out of the new Rule 7, Section 2. The body. — The body of the pleading sets fourth its
matters so alleged, such claims shall be set forth in an amended or designation, the allegations of the party's claims or defenses, the relief
supplemental complaint. prayed for, and the date of the pleading.

Reply – response to an answer. (a) Paragraphs. — The allegations in the body of a pleading shall be
divided into paragraphs so numbered to be readily identified, each of
General rule: The reply is not necessary because if you do not put up a which shall contain a statement of a single set of circumstances so far
reply, it means you controvert the allegations in the answer. as that can be done with convenience. A paragraph may be referred to
by its number in all succeeding pleadings.
Remedial Law Review I – Civil Procedure

(b) Headings. — When two or more causes of action are joined the Verification and Certification
statement 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 Rule 7, Section 4. Verification. — Except when otherwise specifically
others. required by law or rule, pleadings need not be under oath, verified or
accompanied by affidavit.
When one or more paragraphs in the answer are addressed to one of
several causes of action in the complaint, they shall be prefaced by the A pleading is verified by an affidavit that the affiant has read the pleading
words "answer to the first cause of action" or "answer to the second and that the allegations therein are true and correct of his knowledge
cause of action" and so on; and when one or more paragraphs of the and belief.
answer are addressed to several causes of action, they shall be
prefaced by words to that effect. A pleading required to be verified which contains a verification based on
"information and belief", or upon "knowledge, information and belief", or
(c) Relief. — The pleading shall specify the relief sought, but it may add lacks a proper verification, shall be treated as an unsigned pleading.
a general prayer for such further or other relief as may be deemed just
or equitable. Rule 7, Section 5. Certification against forum shopping. — The
plaintiff or principal party shall certify under oath in the complaint or other
(d) Date. — Every pleading shall be dated. initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith: (a) that he has not
Rule 7, Section 3. Signature and address. — Every pleading must be theretofore commenced any action or filed any claim involving the same
signed by the party or counsel representing him, stating in either case issues in any court, tribunal or quasi-judicial agency and, to the best of
his address which should not be a post office box. his knowledge, no such other action or claim is pending therein; (b) if
there is such other pending action or claim, a complete statement of the
The signature of counsel constitutes a certificate by him that he has read present status thereof; and (c) if he should thereafter learn that the same
the pleading; that to the best of his knowledge, information, and belief or similar action or claim has been filed or is pending, he shall report that
there is good ground to support it; and that it is not interposed for delay. fact within five (5) days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
An unsigned pleading produces no legal effect. However, the court may,
in its discretion, allow such deficiency to be remedied if it shall appear Failure to comply with the foregoing requirements shall not be curable by
that the same was due to mere inadvertence and not intended for delay. mere amendment of the complaint or other initiatory pleading but shall
Counsel who deliberately files an unsigned pleading, or signs a pleading be cause for the dismissal of the case without prejudice, unless
in violation of this Rule, or alleges scandalous or indecent matter therein, otherwise provided, upon motion and after hearing. The submission of a
or fails promptly report to the court a change of his address, shall be false certification or non-compliance with any of the undertakings therein
subject to appropriate disciplinary action. shall constitute indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the acts of the party
The address must not be a post-office box address. Otherwise, the or his counsel clearly constitute willful and deliberate forum shopping,
prescriptive period will not lie because it will depend upon when you get the same shall be ground for summary dismissal with prejudice and shall
your mails in your post-office box. constitute direct contempt, as well as a cause for administrative
Based on certain circulars of the SC, in every pleading, what is
necessary is not only the signature and the address. There are 4 more While verification is not mandatory, certification against forum shopping
items necessary: (1) Roll Number, (2) IBP Number, (3) PTR Number, (4) is mandatory because there are only pleadings that require verification
MCLE Exemption Number. but all pleadings require certification against forum shopping. While lack
Remedial Law Review I – Civil Procedure
of verification is easily remediable by amendment, certification against
forum shopping cannot be remedied so it leads to dismissal of the case. RTC ruled in favor of Artigo. CA affirmed, ruling that Artigo‘s complaint is
not dismissible for failure to implead as indispensable parties the other
Who may verify? It should only be the party. Counsel cannot verify. co-owners of the 2 lot. It is not necessary to implead the other co-owners
Neither can the counsel sign the certification against forum shopping. since the action is exclusively based on a contract of agency between
The exception is when the party is a juridical entity and the counsel is Artigo and De Castro.
an in-house counsel on the basis of the doctrine laid down in Iglesia ni
Cristo vs Ponferrada. Issue: Whether the complaint should be dismissed for failure to implead
other co-owners as indispensable parties
Suppose there are multiple parties, the rule provides all the parties must
verify. So if there are 5 plaintiffs, all the 5 plaintiffs must verify. If only SC: An indispensable party is one whose interest will be affected by the
one verifies, that is erroneous but correctible. The exception is in cases court's action in the litigation, and without whom no final determination of
of co-ownership and they are the plaintiffs, but not when they are the case can be had. The joinder of indispensable parties is mandatory
defendants. So that co-owners, in effect, are indispensable parties and courts cannot proceed without their presence. Whenever it appears
defendants. In the case of plaintiffs, they are not indispensable since to the court in the course of a proceeding that an indispensable party
only one is an indispensable party co-owner. has not been joined, it is the duty of the court to stop the trial and order
the inclusion of such party.
De Castro vs CA: The defendants are indispensable parties
defendants. SC held that the action was based on the principle of However, the rule on mandatory joinder of indispensable parties is not
agency. The principals were only 2 of the 5 sisters who appointed applicable to the instant case.
someone as their agent in selling the properties. The indispensability of
the co-owners here is not needed because it is based on the principle of Constante signed the note as owner and as representative of the other
agency. co-owners. Under this note, a contract of agency was clearly constituted
between Constante and Artigo. Whether Constante appointed Artigo as
When an indispensible party is not impleaded, the judgment is null agent, in Constante's individual or representative capacity, or both, the
and void not only as to those who were not impleaded but even as De Castros cannot seek the dismissal of the case for failure to implead
to those who participated in the case. the other co-owners as indispensable parties. The De Castros admit that
the other co-owners are solidarily liable under the contract of agency,
Francisco Artigo sued Constante and Corazon De Castro to collect the citing Article 1915 of the Civil Code.
unpaid balance of his broker‘s commission from them. The De Castros
were co-owners of 4 lots located in QC. They authorized Artigo to act as The solidary liability of the 4 co-owners, however, militates against the
real estate broker in the sale of the properties. Artigo found Times De Castros' theory that the other co-owners should be impleaded as
Transit Corp. as a prospective buyer which desired to buy 2 lots only. indispensable parties. When the law expressly provides for solidarity of
The same was consummated and Artigo received commission from the the obligation, as in the liability of co-principals in a contract of agency,
De Castros. Artigo felt that his commission should be 5% of the agreed each obligor may be compelled to pay the entire obligation. The agent
price. He sued to collect the balance after having received an advance. may recover the whole compensation from any one of the co-principals,
as in this case. Article 1216 of the Civil Code provides that a creditor
The De Castros argue that the complaint should have been dismissed may sue any of the solidary debtors.
for failure to implead all the co-owners of the 2 lots. They claim that
Artigo always knew that the 2 lots were co-owned by the De Castros and Mandawer Galleon Trade vs Isidro: Respondents filed a case for
their other siblings. They claim that failure to implead them as illegal dismissal and non-payment of overtime pay, holiday pay, 13th
indispensable parties is fatal to the complaint since Artigo would be paid month pay, and service incentive leave pay against petitioner with the
with funds co-owned by the siblings. NLRC. They asserted that they were dismissed from employment
Remedial Law Review I – Civil Procedure
without just cause and without due process. Petitioners averred that the
respondents were not their employees but were independent 1) A distinction must be made between:
contractors. LA found respondents illegally dismissed from employment. a. non-compliance with the requirement on or submission of defective
verification, and
Petitioners filed an appeal before the NLRC but failed to attach a b. non-compliance with the requirement on or submission of defective
certification of non-forum shopping to their notice of appeal, as required certification against forum shopping.
by Section 4, Rule VI of the NLRC Rules of Procedure. NLRC dismissed
the appeal for being fatally defective and affirmed LA‘s decision with 2) As to verification, non-compliance therewith or a defect therein does
finality. Petitioners filed an MR but it was denied by the NLRC. An entry not necessarily render the pleading fatally defective. The court may
for judgment was issued by the NLRC stating that the resolution had order its submission or correction or act on the pleading if the attending
become final and executory. circumstances are such that strict compliance with the Rule may be
dispensed with in order that the ends of justice may be served thereby.
Petitioners filed a petition for certiorari under Rule 65 before the CA. CA
dismissed the petition for certiorari and affirmed NLRC. Their MR was 3) Verification is deemed substantially complied with when one who has
also denied by the CA. Petitioners aver that the CA should have granted ample knowledge to swear to the truth of the allegations in the complaint
the petition and decided the case on the merits, considering that they or petition signs the verification, and when matters alleged in the petition
had belatedly complied with the requirement of a certification for non- have been made in good faith or are true and correct.
forum shopping.
4) As to certification against forum shopping, non-compliance therewith
Issue: Whether the CA was correct in summarily dismissing the petition or a defect therein, unlike in verification, is generally not curable by its
for being filed without a certification for non-forum shopping subsequent submission or correction thereof, unless there is a need to
relax the Rule on the ground of "substantial compliance" or presence of
SC: No. Non-compliance with the required certification is fatal. To curb "special circumstances or compelling reasons."
the malpractice of forum shopping, Section 5, Rule 7 of the 1997 Rules
of Civil Procedure, ordains that a violation thereof would constitute C. Allegations in Pleadings
contempt of court and be cause for the summary dismissal of the
petition, without prejudice to the taking of appropriate action against the Rule 8, Section 1. In general. — Every pleading shall contain in a
counsel of the party concerned. methodical and logical form, a plain, concise and direct statement of the
ultimate facts on which the party pleading relies for his claim or defense,
The filing of a certificate for non-forum shopping is mandatory in as the case may be, omitting the statement of mere evidentiary facts.
initiatory pleadings. The subsequent compliance with the requirement
does not excuse a party‘s failure to comply therewith in the first instance. If a defense relied on is based on law, the pertinent provisions thereof
In those cases where the Court excused non-compliance with the and their applicability to him shall be clearly and concisely stated.
requirement to submit a certificate of non-forum shopping, it found
special circumstances or compelling reasons which made the strict Rule 8, Section 2. Alternative causes of action or defenses. — A
application of [Section 5, Rule 7, ROC] clearly unjustified or inequitable. party may set forth two or more statements of a claim or defense
In this case, however, the petitioners offered no valid justification for alternatively or hypothetically, either in one cause of action or defense or
their failure to comply with the circular. in separate causes of action or defenses. When two or more statements
are made in the alternative and one of them if made independently
Non-compliance with the requirement on, or submission of defective, would be sufficient, the pleading is not made insufficient by the
verification is not necessarily fatally defective. insufficiency of one or more of the alternative statements.

In Altres v. Empleo:
Remedial Law Review I – Civil Procedure
Rule 8, Section 3. Conditions precedent. — In any pleading a general
averment of the performance or occurrence of all conditions precedent Rule 8, Section 8. How to contest such documents. — When an
shall be sufficient. action or defense is founded upon a written instrument, copied in or
attached to the corresponding pleading as provided in the preceding
Rule 8, Section 4. Capacity. — Facts showing the capacity of a party to section, the genuineness and due execution of the instrument shall be
sue or be sued or the authority of a party to sue or be sued in a deemed admitted unless the adverse party, under oath specifically
representative capacity or the legal existence of an organized denies them, and sets forth what he claims to be the facts, but the
association of person that is made a party, must be averred. A party requirement of an oath does not apply when the adverse party does not
desiring to raise an issue as to the legal existence of any party or the appear to be a party to the instrument or when compliance with an order
capacity of any party to sue or be sued in a representative capacity, for an inspection of the original instrument is refused.
shall do so by specific denial, which shall include such supporting
particulars as are peculiarly within the pleader's knowledge. You contest the actionable document by specifically denying it under
oath. The pleading must contain a jurat (subscribed and sworn to before
Rule 8, Section 5. Fraud, mistake, condition of the mind. — In all me). Otherwise, the authenticity and due execution of the document are
averments of fraud or mistake the circumstances constituting fraud or deemed admitted. Only authenticity and due execution, not the contents
mistake must be stated with particularity. Malice, intent, knowledge, or of the document.
other condition of the mind of a person may be averred generally.
Benguet Exploration, Inc. vs CA: Authenticity and due execution
Rule 8, Section 6. Judgment. — In pleading a judgment or decision of constitutes only 4 things: (1) that the document was signed; (2) that the
a domestic or foreign court, judicial or quasi-judicial tribunal, or of a document complied with all the formalities under the laws; (3) that when
board or officer, it is sufficient to aver the judgment or decision without the document was signed, it was in the original form without any
setting forth matter showing jurisdiction to render it. alteration; and (4) that the document was delivered.

Actionable Documents Petitioner contends that the genuineness and due execution of the
documents presented, i.e., Bill of Lading, Certificate of Loading,
Rule 8, Section 7. Action or defense based on document. — Certificate of Weight, Mate‘s Receipt, were properly established by the
Whenever an action or defense is based upon a written instrument or testimony of its witness, Ernesto Cayabyab, and that as a result, there is
document, the substance of such instrument or document shall be set a prima facie presumption that their contents are true.
forth in the pleading, and the original or a copy thereof shall be attached
to the pleading as an exhibit, which shall be deemed to be a part of the This contention has no merit. The admission of the due execution and
pleading, or said copy may with like effect be set forth in the pleading. genuineness of a document simply means that ―the party whose
signature it bears admits that he signed it or that it was signed by
Actionable documents – are those which is the basis of one‘s claim or another for him with his authority; that at the time it was signed it was in
defense. words and figures exactly as set out in the pleading of the party relying
upon it; that the document was delivered; and that any formal requisites
How do you allege an actionable document? Section 7 provides the required by law, such as a seal, an acknowledgment, or revenue stamp,
answer. To allege an actionable document, you either (1) copy the which it lacks, are waived by him.‖ Genuineness and due execution of
document verbatim in your pleading; or (2) copy the basis of your claim the instrument means nothing more than that the instrument is not
and attach a copy of the document. spurious, counterfeit, or of different import on its face from the one
Use the first mode if your document is short like a promissory note. Use
the second mode if your document is quite lengthy like a contract of It is equally true, however, that ¾ execution can only refer to the actual
mortgage consisting of 20 pages. making and delivery, but it cannot involve other matters without
Remedial Law Review I – Civil Procedure
enlarging its meaning beyond reason. The only object of the rule was to held that recitals in the bill of lading as to the goods shipped raise only a
enable a plaintiff to make out a prima facie, not a conclusive case, and it rebuttable presumption that such goods were delivered for shipment and
cannot preclude a defendant from introducing any defense on the merits as between the consignor and a receiving carrier, the fact must outweigh
which does not contradict the execution of the instrument introduced in the recital. Resultingly, the admissions elicited from appellant‘s
evidence. witnesses that they could not confirm the accuracy of the figures
indicated in their documentary evidence with regard to the actual weight
Respondents presented evidence which casts doubt on the veracity of of the cargo loaded at the port of origin and that unloaded at the port of
these documents. Switzerland Insurance presented Export Declaration destination, in effect rebuts the presumption in favor of the figure
No. 1131/85 which petitioner‘s own witness, Rogelio Lumibao, indicated in the bill of lading.
prepared, in which it was stated that the copper concentrates to be
transported to Japan had a gross weight of only 2,050 wet metric tons or Rule 8, Section 9. Official document or act. — In pleading an official
1,845 dry metric tons, 10 percent more or less. On the other hand, document or official act, it is sufficient to aver that the document was
Certified Adjusters, Inc., to which Switzerland Insurance had referred issued or the act done in compliance with law.
petitioner‘s claim, prepared a report which showed that a total of
2,451.630 wet metric tons of copper concentrates were delivered at Poro Specific denial
Point. As the report stated: It is to be pointed out that there were no
actual weighing made at Benguet Exploration‘s site. The procedure Rule 8, Section 10. Specific denial. — A defendant must specify each
done was that after weighing the trucks before and after unloading at material allegation of fact the truth of which he does not admit and,
Poro Point, the weight of the load was determined and entered on whenever practicable, shall set forth the substance of the matters upon
―Philex‖ Trip Ticket which was later on copied and entered by the truck which he relies to support his denial. Where a defendant desires to deny
driver on Benguet Exploration, Inc.‘s Transfer Slip. only a part of an averment, he shall specify so much of it as is true and
material and shall deny only the remainder. Where a defendant is
Considering the discrepancies in the various documents showing the without knowledge or information sufficient to form a belief as to the truth
actual amount of copper concentrates transported to Poro Point and of a material averment made to the complaint, he shall so state, and this
loaded in the vessel, there is no evidence of the exact amount of copper shall have the effect of a denial.
concentrates shipped. Thus, whatever presumption of regularity in the
transactions might have risen from the genuineness and due execution Rule 8, Section 11. Allegations not specifically denied deemed
of the Bill of Lading, Certificate of Weight, Certificate of Loading, and admitted. — Material averment in the complaint, other than those as to
Mate‘s Receipt was successfully rebutted by the evidence presented by the amount of unliquidated damages, shall be deemed admitted when
Switzerland Insurance which showed disparities in the actual weight of not specifically denied. Allegations of usury in a complaint to recover
the cargo transported to Poro Point and loaded on the vessel. This fact usurious interest are deemed admitted if not denied under oath.
is compounded by the admissions made by Lumibao and Cayabyab that
they had no personal knowledge of the actual amount of copper Rule 8, Section 12. Striking out of pleading or matter contained
concentrates loaded on the vessel. therein. — Upon motion made by a party before responding to a
pleading or, if no responsive pleading is permitted by these Rules, upon
In the face of these admissions, appellant‘s claim of loss or shortage is motion made by a party within twenty (20) days after the service of the
placed in serious doubt, there being no other way of verifying the pleading upon him, or upon the court's own initiative at any time, the
accuracy of the figures indicated in appellant‘s documentary evidence court may order any pleading to be stricken out or that any sham or
that could confirm the alleged loss of 355.736 MT. Notwithstanding the false, redundant, immaterial, impertinent, or scandalous matter be
figure stated in Bill of Lading No. PP/0-1 that 2,243.496 WMT of copper stricken out therefrom.
concentrates was loaded by appellant at the port of origin, it should be
stressed that this is merely prima facie evidence of the receipt by the D. Rule 9
carrier of said cargo as described in the bill of lading. Thus, it has been
Remedial Law Review I – Civil Procedure
Effect of Failure to Plead (7) plaintiff‘s failure to comply with these Rules or any order of the court
(Section 3, Rule 17)
Residual prerogatives, as laid down in Katon vs Palanca, is the
authority of the appellate court to dismiss a case motu proprio pursuant (8) the rule in summary procedure
to the grounds under Section 1 of Rule 9. They are: res judicata, litis
pendentia, prescription, lack of jurisdiction and statute of limitation. Waiver of Defenses and Objections; Default

Rule 9, Section 1. Defenses and objections not pleaded. — Rule 9, Section 2. Compulsory counterclaim, or cross-claim, not set
Defenses and objections not pleaded either in a motion to dismiss or in up barred. — A compulsory counterclaim, or a cross-claim, not set up
the answer are deemed waived. However, when it appears from the shall be barred.
pleadings or the evidence on record that the court has no jurisdiction
over the subject matter, that there is another action pending between the Rule 9, Section 3. Default; declaration of. — If the defending party
same parties for the same cause, or that the action is barred by a prior fails to answer within the time allowed therefor, the court shall, upon
judgment or by statute of limitations, the court shall dismiss the claim. motion of the claiming party with notice to the defending party, and proof
of such failure, declare the defending party in default. Thereupon, the
Tie this up with Section 3, Rule 17: Dismissal due to fault of plaintiff. court shall proceed to render judgment granting the claimant such relief
— If, for no justifiable cause, the plaintiff fails to appear on the date of as his pleading may warrant, unless the court in its discretion requires
the presentation of his evidence in chief on the complaint, or to the claimant to submit evidence. Such reception of evidence may be
prosecute his action for an unreasonable length of time, or to comply delegated to the clerk of court.
with these Rules or any order of the court, the complaint may be
dismissed upon motion of the defendant or upon the court's own motion, (a) Effect of order of default. — A party in default shall be entitled to
without prejudice to the right of the defendant to prosecute his notice of subsequent proceedings but not to take part in the trial.
counterclaim in the same or in a separate action. This dismissal shall
have the effect of an adjudication upon the merits, unless otherwise (b) Relief from order of default. — A party declared in default may at any
declared by the court. time 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
Thus, the 8 grounds by which the court can dismiss a case motu proprio answer was due to fraud, accident, mistake or excusable negligence and
are: that he has a meritorious defense. In such case, the order of default may
be set aside on such terms and conditions as the judge may impose in
(1) res judicata (Section 1, Rule 9) the interest of justice.

(2) litis pendentia (Section 1, Rule 9) (c) Effect of partial default. — When a pleading asserting a claim states
a common cause of action against several defending parties, some of
(3) lack of jurisdiction (Section 1, Rule 9) whom 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
(4) statute of limitation (Section 1, Rule 9) evidence presented.

(5) failure of any party to appear for the presentation of evidence in (d) Extent of relief to be awarded. — A judgment rendered against a
chief (Section 3, Rule 17) party in default shall not exceed the amount or be different in kind from
that prayed for nor award unliquidated damages.
(6) plaintiff‘s failure to prosecute his action for an unreasonable length
of time (Section 3, Rule 17) (e) Where no defaults allowed. — If the defending party in an action for
annulment or declaration of nullity of marriage or for legal separation
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fails to answer, the court shall order the prosecuting attorney to
investigate whether or not a collusion between the parties exists, and if Every written motion required to be heard and the notice of the hearing
there is no collusion, to intervene for the State in order to see to it that thereof shall be served in such a manner as to ensure its receipt by the
the evidence submitted is not fabricated. other party at least three (3) days before the date of hearing, unless the
court for good cause sets the hearing on shorter notice.
Under the 1997 Rules of Court, when may a party be declared in
default? There is only one ground for declaring a party in default: failure Rule 15, Section 5. Notice of hearing. — The notice of hearing shall
to file responsive pleading within the required period. Now, there is no be addressed to all parties concerned, and shall specify the time and
more declaration of a party as in default that used to be in the 1960 date of the hearing which must not be later than ten (10) days after the
Rules of Court that has been deleted by the 1997 Rules of Court. filing of the motion.

A files a case against B for unlawful detainer and forcible entry and Rule 15, Section 6. Proof of service necessary. — No written motion
summons was served upon B on January 5. On February 5, B has not set for hearing shall be acted upon by the court without proof of service
yet filed an answer. Can B be declared in default for failure to file his thereof.
answer? No, the case is covered by the Rules of Summary Procedure
and an order of default or a motion to declare defendant in default is a 3-day notice rule – a copy of the pleading must be received 3 days
prohibited pleading. before the scheduled hearing (not must be sent). If the motion day is a
Friday, it must be received not later than Tuesday. Under computation of
If there is only one ground, the 2 other grounds in the 1960 Rules of time in Rule 22, you must always exclude the first day and include the
Court to declare a party as in default have been eliminated: (1) when a last day.
party fails to appear at the pre-trial; or (2) the party fails to file a pre-trial
brief. Rule 22, Section 1. How to compute time. — In computing any period
of time prescribed or allowed by these Rules, or by order of the court, or
Now, if the plaintiff does not appear at the pre-trial, it will be nonsuited by any applicable statute, the day of the act or event from which the
and result to a dismissal. Defendant can present evidence ex parte on designated period of time begins to run is to be excluded and the date of
his counterclaim. If the defendant fails to appear at the pre-trial or submit performance included. If the last day of the period, as thus computed,
a pre-trial brief, the plaintiff can present evidence ex parte. There is no falls on a Saturday a Sunday, or a legal holiday in the place where the
need to declare them as in default. court sits, the time shall not run until the next working day.

To declare a party in default because of failure to file responsive 10-day setting rule – you have to set the hearing within a period of 10
pleading within the required period, the other party must file a motion. days from the filing of a motion. If there is a conflict between the 2, what
There is no declaration in default motu proprio. It must always be should prevail over which? The 3-day notice rule must prevail, because
through a litigious/litigated motion. the 10-day setting rule is addressed to the court while the 3-day notice
rule is addressed to the adverse party. The adverse party must not be
There are 2 kinds of motions: (1) litigated motion and (2) non-litigated (or prejudiced.
oral) motion. Since a motion to declare a party in default is a litigated
motion, it must comply with section 4 (must be in writing, and comply When the party is supposed to file a responsive pleading within 15 days
with 3-day notice rule), section 5 (10-day setting rule), and section 6 from receipt of the summons (ex. defendant receives the summons with
(copy of pleading must be served upon the adverse party) of Rule 15. the copy of the complaint) and he fails to file his answer to the complaint
within 15 days from receipt thereof, the plaintiff can go to the court and
Rule 15, Section 4. Hearing of motion. — Except for motions which file a motion to declare the defendant in default. It is a litigated motion
the court may act upon without prejudicing the rights of the adverse and it must comply with sections 4, 5 and 6 of Rule 15.
party, every written motion shall be set for hearing by the applicant.
Remedial Law Review I – Civil Procedure
The plaintiff may also be declared in default in a case where the (c) An order striking out pleadings or parts thereof, or staying further
defendant files a permissive counterclaim (thus, the plaintiff must file an proceedings until the order is obeyed, or dismissing the action or
answer). What is the effect if a party is declared in default? He loses his proceeding or any part thereof, or rendering a judgment by default
personality before the court. When he loses his personality before the against the disobedient party; xxx
court, he can no longer participate in the proceedings.
Banco de Oro vs Tansipek: JOCI, a domestic corporation engaged in
How can he regain his personality before the court? There is only one construction, filed a complaint against PCIB (Bank). JOCI contracted
way according to the SC which was discussed in Banco de Oro vs with Duty Free Phils. to construct a store in Mandaue. Construction went
Tansipek: Even if you lose your personality before the court because on, and JOCI authorized Tansipek to collect payments for it. Initial
you have been declared in default, you are still entitled to notices. You payments were deposited to JOCI‘s account. However, a check was not
are only deprived of participation in the trial but you are still entitled to deposited to its account. Tansipek deposited the check to his personal
processes. In this case, the defaulted party filed a motion for account in PCIB. PCIB allowed it despite the check being crossed for the
reconsideration. SC held that a motion for reconsideration is not a valid payee‘s account only, and that respondent lacked authority to endorse it.
remedy. There is one remedy: a motion to set aside the order of default. PCIB refused to pay. JOCI demanded payment of the check. PCIB filed
This motion is also a litigated motion and must conform to Sections 4, 5, a motion to dismiss but RTC denied it. PCIB filed its answer and a third-
6 of Rule 15. When the motion to set aside the order of default is party complaint against Tansipek. PCIB alleged in the third-party
granted by the court, then you regain your personality before the court. complaint that Tansipek presented to it a copy of the board resolution
allowing him to deposit the check in his personal account.
If you do not regain your personality in court, what follows an order of
default? A judgment by default. While there is only one remedy against Tansipek was given extension of time to file his answer, but he failed so
an order of default (which is a motion to set aside the order of default), he was declared in default. He filed a Motion to Reconsider the Default
there are several remedies against a judgment by default. Because it is Order, but it was denied. He filed a petition for certiorari with the CA
a judgment, all the remedies against a judgment may be availed of such assailing the default order as well as the denial of the motion for
as motion for reconsideration, motion for new trial and appeal. reconsideration. CA dismissed his petition for failure to attach the orders
and denied his motion for being filed out of time. The RTC later
General rule: An order of default must always precede a judgment by promulgated a ruling on the civil case ordering Tansipek and PCIB to
default. pay JOCI. Tansipek appealed it to the CA. CA ruled that RTC erred in
allowing the motion to declare Tansipek in default, and remanded the
Exception: Where a judgment by default may be granted by the court case to the RTC.
without being preceded by an order of default: refusal to comply with the
modes of discovery (Rule 29, Section 3(c)). SC: A motion to reconsider the default order is not the proper remedy.
He should have filed a motion to lift the default order.
Rule 29, Section 3. Other consequences. — If any party or an officer
or managing agent of a party refuses to obey an order made under Rule 9, Section 3(b): Relief from order of default.— A party declared
section 1 of this Rule requiring him to answer designated questions, or in default may at any time after notice thereof and before judgment file a
an order under Rule 27 to produce any document or other thing for motion under oath to set aside the order of default upon proper showing
inspection, copying, or photographing or to permit it to be done, or to that his failure to answer was due to fraud, accident, mistake or
permit entry upon land or other property or an order made under Rule 28 excusable negligence and that he has a meritorious defense. In such
requiring him to submit to a physical or mental examination, the court case, the order of default may be set aside on such terms and conditions
may make such orders in regard to the refusal as are just, and among as the judge may impose in the interest of justice.
others the following: xxx
A Motion to Lift Order of Default is different from an ordinary motion in
that the Motion should be verified; and must show fraud, accident,
Remedial Law Review I – Civil Procedure
mistake or excusable neglect, and meritorious defenses. The SC: Yes. Section 72 of CSC Memorandum Circular No. 19, s. 1999,
allegations of (1) fraud, accident, mistake or excusable neglect, and (2) provides for the period of appeal for non- disciplinary actions, to wit:
of meritorious defenses must concur. Section 72. When and Where to File. - A decision or ruling of a
department or agency may be appealed within fifteen (15) days from
Commission on Appointments (COA) vs Paler: Celso Paler was a receipt thereof by the party adversely affected to the Civil Service
Supervising Legislative Staff Officer II (SG-24) with the Technical Regional Office and finally, to the Commission Proper within the same
Support Service of the COA. He submitted a request for VL for 74 period. xxx
working days - from August 1 to November 14, 2003. The Director III of
Technical Support Service submitted to the Commission Secretary his Paler's son received the letter from the Commission Chairman denying
comments/recommendation on Paler‘s application which principally Paler‘s MR on March 18, 2004. Thus, Paler‘s had until April 2, 2004
states that said application for Leave may be acted upon depending on within which to file his appeal with the CSC. It was filed, however, only
the completion of his work load and submission of the medical on April 5, 2004. Nevertheless, the CSC entertained the appeal in the
certificate. interest of substantial justice.

Since he already had an approved leave from June 9 to July 30, 2003, We agree with the CSC. We uphold its decision to relax the procedural
Paler left for the US on June 8, 2003, without verifying whether his rules because Paler's appeal was meritorious. When substantial justice
application for leave (for August 1 – November 14, 2003) was approved dictates it, procedural rules may be relaxed in order to arrive at a just
or denied. disposition of a case. The purpose behind limiting the period of appeal is
to avoid unreasonable delay in the administration of justice and to put an
In a letter dated September 16, 2003, the Commission Chairman end to controversies. A one-day delay, as in this case, does not justify
informed Paler that he was being dropped from the roll of employees denial of the appeal where there is absolutely no indication of intent to
effective said date, due to his continuous 30-day absence without leave delay justice on the part of Paler and the pleading is meritorious on its
and in accordance with Section 63, Civil Service Commission (CSC) face. It bears stressing that the case before the CSC involves the
Memorandum Circular No. 14, s. 1999. Paler's son received the letter on security of tenure of a public officer sacrosanctly protected by the
September 23, 2003. Constitution. Public interest requires a resolution of the merits of the
appeal instead of dismissing the same based on a strained and
Paler moved for reconsideration but this was denied on February 20, inordinate application of Section 49 (a) of the CSC Revised Rules of
2004, on the ground that it was filed beyond the 15-day reglementary Procedure.
period. The denial was received by Paler's son on March 18, 2004.
Oaminal vs Castillo: Henry Oaminal filed a complaint for collection
On appeal, the CSC reversed and set aside the Commission Chairman's against Respondents Pablito and Guia Castillo with the RTC. The
decision. The Commission filed a motion for reconsideration but this was summons together with the complaint was served upon Ester Fraginal,
denied by the CSC. This constrained petitioner to file with the CA a secretary of Mrs. Castillo. Respondents filed their ‗Urgent Motion to
petition for review under Rule 43 of the Rules of Court. Since Paler had Declare Service of Summons Improper and Legally Defective‘ alleging
in the meantime already reached the compulsory age of retirement on that the Sheriff's Return has failed to comply with Section (1), Rule 14 of
July 28, 2005 and was no longer entitled to reinstatement, the CA the Rules of Court or substituted service of summons.
affirmed with modification CSC resolutions. Petitioner filed a motion for
reconsideration but this was denied by the CA. Petitioner filed an Omnibus Motion to Declare Respondents in Default
and to Render Judgment because no answer was filed by the latter.
Issue: Whether or not the CSC was correct to entertain Paler‘s appeal Respondents filed the following: a. Omnibus Motion Ad Cautelam to
despite it being filed beyond the 15-day reglementary period. Admit Motion to Dismiss and Answer with Compulsory Counter-claim; b.
Urgent Motion to Dismiss; and c. Answer with Compulsory Counter-
Claim. The judge denied the Motion to Dismiss, admitted their Answer,
Remedial Law Review I – Civil Procedure
and set the pre-trial. Respondents filed an ‗Urgent Motion to Inhibit Ad within a reasonable time was impossible; (b) efforts were exerted to
Cautelam‘ against Judge [Zapatos]. Judge [Zapatos] denied the motion. locate the party; and (c) the summons was served upon a person of
[Respondents] filed an Urgent Omnibus Motion for Reconsideration. sufficient age and discretion residing at the party‘s residence or upon a
Judge [Zapatos] ruled that [respondents‘] ‗Omnibus Motion Ad Cautelam competent person in charge of the party‘s office or regular place of
to Admit Motion to Dismiss and Answer with Counterclaim‘ was filed business. It is likewise required that the pertinent facts proving these
outside the period to file answer, hence he (1) denied the Motion to circumstances are stated in the proof of service or officer‘s return.
Admit Motion to Dismiss and Answer; (2) declared [respondents] in
default; and (3) ordered Oaminal to present evidence ex-parte, [failing] The Sheriff‘s Return failed to state that efforts had been made to
which, the case will be dismissed. personally serve the summons on respondents. Neither did the Return
indicate that it was impossible to do so within a reasonable time.
Judge [Zapatos] ruled in favor of the petitioner. Respondents filed with
the CA a Petition for certiorari. CA ruled that RTC did not validly acquire Nonetheless, nothing in the records shows that respondents denied
jurisdiction over respondents, because the summons had been actual receipt of the summons through their secretary. Their ―Urgent
improperly served on them. It based its finding on the Sheriff‘s Return, Motion to Declare Service of Summons Improper and Legally Defective‖
which did not contain any averment that effort had been exerted to did not deny receipt thereof; it merely assailed the manner of its service.
personally serve the summons on them before substituted service was In fact, they admitted in their Motion that the ―summons, together with
resorted to. the complaint, was served by the Sheriff on Ester Fraginal, secretary of
the defendants at No. 7, 21st Avenue, Cubao, Quezon City on 30 May
Issue: Whether the trial court acquired jurisdiction over respondents, 2000.‖
although summons was served upon the secretary.
There is likewise no showing that respondents had heretofore pursued
SC: Yes. The receipt of the summons by the legal secretary of the the issue of lack of jurisdiction; neither did they reserve their right to
respondents is deemed proper, because they admit the actual receipt invoke it in their subsequent pleadings. If at all, what they avoided
thereof, but merely question the manner of service. Moreover, when they forfeiting and waiving -- both in their Omnibus Motion ad Cautelam to
asked for affirmative reliefs in several motions and thereby submitted Admit Motion to Dismiss and Answer with Compulsory Counter-Claim
themselves to the jurisdiction of the trial court, whatever defects the and in their Motion to Dismiss -- was their right to invoke the grounds of
service of summons may have had were cured. improper venue and litis pendentia.

In civil cases, the trial court acquires jurisdiction over the person of the Verily, respondents did not raise in their MTD the issue of jurisdiction
defendant either by the service of summons or by the latter‘s voluntary over their persons; they raised only improper venue and litis pendentia.
appearance and submission to the authority of the former. Where the Hence, whatever defect there was in the manner of service should be
action is in personam and the defendant is in the Philippines, the service deemed waived.
of summons may be made through personal or substituted service in the
manner provided for by Sections 6 and 7 of Rule 14 of the Revised Assuming arguendo that the service of summons was defective, such
Rules of Court. flaw was cured and respondents are deemed to have submitted
themselves to the jurisdiction of the trial court when they filed an
Personal service of summons is preferred over substituted service. Omnibus Motion to Admit the Motion to Dismiss and Answer with
Resort to the latter is permitted when the summons cannot be promptly Counterclaim, an Answer with Counterclaim, a Motion to Inhibit, and a
served on the defendant in person and after stringent formal and Motion for Reconsideration and Plea to Reset Pre-trial. The filing of
substantive requirements have been complied with. Motions seeking affirmative relief -- to admit answer, for additional time
to file answer, for reconsideration of a default judgment, and to lift order
For substituted service of summons to be valid, it is necessary to of default with motion for reconsideration -- are considered voluntary
establish the following circumstances: (a) personal service of summons submission to the jurisdiction of the court. Having invoked the trial
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court‘s jurisdiction to secure affirmative relief, respondents cannot --
after failing to obtain the relief prayed for -- repudiate the very same Issue: Whether or not the third party complaint was proper.
authority they have invoked.
SC: No. The purpose of Section 11, Rule 6 of the Rules of Court is to
Asia Const. & Dev. Corp. (ACDC) vs CA: ACDC leased Caterpillar permit a defendant to assert an independent claim against a third-party
generator sets and Amida mobile floodlighting systems from Monark which he, otherwise, would assert in another action, thus preventing
Equipment Corporation (MEC) during the period of March 13 to July 15, multiplicity of suits. All the rights of the parties concerned would then be
1998 but failed, despite demands, to pay the rentals in the amount of P4, adjudicated in one proceeding. This is a rule of procedure and does not
313,935.00. From July 14 to August 25, 1998, various equipment from create a substantial right.
MEC were, likewise, leased by ACDC for the latter‘s power plant in
Mauban, Quezon, and that there was still a balance of P456,666.67. Neither does it abridge, enlarge, or nullify the substantial rights of any
ACDC also purchased and took custody of various equipment parts from litigant. This right to file a third-party complaint against a third-party rests
MEC for P237,336.20 which, despite demands, ACDC failed to pay. in the discretion of the trial court. The third-party complaint is actually
With all these allegations, MEC filed a complaint for sum of money with independent of, separate and distinct from the plaintiff‘s complaint, such
damages (RTC QC) against ACDC. that were it not for the rule, it would have to be filed separately from the
original complaint.
ACDC filed a motion to file and admit answer with third party complaint
against Becthel Overseas Corporation. It admitted its indebtedness to A prerequisite to the exercise of such right is that some substantive
MEC but imposes the special and affirmative defense that Becthel failed basis for a third-party claim be found to exist, whether the basis be one
and refused to pay its overdue obligation in connection with the leased of indemnity, subrogation, contribution or other substantive right. The
equipment used by ACDC to comply with its contracted services. bringing of a third-party defendant is proper if he would be liable to the
Apparently, Becthel used all the equipment covered by lease for a plaintiff or to the defendant or both for all or part of the plaintiff‘s claim
construction project and ACDC was not yet paid for its services. ACDC against the original defendant, although the third-party defendant‘s
also reiterated this in the 3rd party complaint praying for dismissal of liability arises out of another transaction. The defendant may implead
MEC‘s claim and order for Becthel to pay its obligation. another as third-party defendant (a) on an allegation of liability of the
latter to the defendant for contribution, indemnity, subrogation or any
MEC opposed this motion on the ground that ACDC already admitted its other relief; (b) on the ground of direct liability of the third-party
obligation to MEC which is independent from the transaction with defendant to the plaintiff; or (c) the liability of the third-party defendant to
Becthel. The third party complaint will only cause undue delays. MEC both the plaintiff and the defendant. There must be a causal connection
filed a motion for summary judgment on the ground that there was no between the claim of the plaintiff in his complaint and a claim for
genuine issue on ACDC‘s obligation and that the 3rd party complaint contribution, indemnity or other relief of the defendant against the third-
must be litigated separately. In MEC‘s reply to the special affirmative party defendant.
defense, it argued that this was a negative pregnant.
Common liability is the very essence for contribution. Contribution is a
TC: motion for leave to file 3rd party complaint is denied; motion for payment made by each, or by any of several having a common liability
summary judgment granted – trial court considered this as motion for of his share in the damage suffered or in the money necessarily paid by
judgment on the pleadings. DECISION IN FAVOR OF MEC. CA: one of the parties in behalf of the other or others. The rule on common
AFFIRMED liability is fundamental in the action for contribution. The test to
determine whether the claim for indemnity in a third-party complaint is,
ACDC argues that although it admitted the obligation to MEC, the 3rd whether it arises out of the same transaction on which the plaintiff‘s
party complaint tendered an issue of whether the MEC‘s claim is claim is based, or the third-party plaintiff‘s claim, although arising out of
connected with the third-party claim. This is a genuine issue that must another or different contract or transaction, is connected with the
be litigated. plaintiff‘s claim.
Remedial Law Review I – Civil Procedure

The claims of the respondent, as plaintiff in the RTC, against the  Substantial vs Formal
petitioner as defendant therein, arose out of the contracts of lease and
sale; such transactions are different and separate from those between o Substantial amendment – when such amendment would be
Becthel and the petitioner as third-party plaintiff for the construction of prejudicial to a party
the latter‘s project in Mauban, Quezon, where the equipment leased
from the respondent was used by the petitioner. The controversy o Formal amendment – is not prejudicial to a party because it is only
between the respondent and the petitioner, on one hand, and that amended as to the form
between the petitioner and Becthel, on the other, are thus entirely
distinct from each other. There is no showing in the proposed third-party Section 4. Formal amendments. — A defect in the designation of the
complaint that the respondent knew or approved the use of the leased parties and other clearly clerical or typographical errors may be
equipment by the petitioner for the said project in Quezon. Becthel summarily corrected by the court at any stage of the action, at its
cannot invoke any defense the petitioner had or may have against the initiative or on motion, provided no prejudice is caused thereby to the
claims of the respondent in its complaint, because the petitioner adverse party.
admitted its liabilities to the respondent for the amount of P5,075,335.86.
The barefaced fact that the petitioner used the equipment it leased from  As a matter of right vs by leave of court (applies in both civil and
the respondent in connection with its project with Becthel does not criminal but the time frame differs)
provide a substantive basis for the filing of a third-party complaint
against the latter. There is no causal connection between the claim of o In civil cases, amendment is a matter of right before the responsive
the respondent for the rental and the balance of the purchase price of pleading is served
the equipment and parts sold and leased to the petitioner, and the failure
of Becthel to pay the balance of its account to the petitioner after the Section 2. Amendments as a matter of right. — A party may amend
completion of the project in Quezon. his pleading once as a matter of right at any time before a responsive
pleading is served or, in the case of a reply, at any time within ten (10)
days after it is served.

o In criminal cases, amendment is a matter of right before

o Thereafter, it is already by leave of court. If you seek amendment,
A. Amendments and Supplemental Pleadings you have to precede it with a motion for leave to admit amended
Section 1. Amendments in general. — Pleadings may be amended by
adding or striking out an allegation or the name of any party, or by o Whether it is a matter of right or by leave of court, it can be both
correcting a mistake in the name of a party or a mistaken or inadequate formal or substantive.
allegation or description in any other respect, so that the actual merits of
the controversy may speedily be determined, without regard to Section 3. Amendments by leave of court. — Except as provided in
technicalities, and in the most expeditious and inexpensive manner. 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
Kinds of Amendments 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
There are 2 sets of classifications of amendments both in civil and filed in court, and after notice to the adverse party, and an opportunity to
criminal cases. be heard.
Remedial Law Review I – Civil Procedure
Can a complaint still be amended as a matter of right before an answer
A files a case against B. Summons was served upon B. Two days after has been filed, even if there was a pending proceeding for its dismissal
receiving the summons, B files his answer. Can A still amend the before the higher court?
complaint as a matter of right? Yes. The Rules says before the
responsive pleading is ―served,‖ not ―filed.‖ SC: Yes. Section 2, Rule 10 explicitly states that a pleading may be
amended as a matter of right before a responsive pleading is served.
Remington Industrial Sales Corp vs CA: Petitioner filed a complaint This only means that prior to the filing of an answer, the plaintiff has the
for sum of money and damages arising from breach of contract. Among absolute right to amend the complaint whether a new cause of action or
the defendants is respondent British Steel. Respondent moved for the change in theory is introduced. The reason for this rule is implied in the
dismissal of the complaint on the ground that it failed to state a cause of subsequent Section 3 of Rule 10. Under this provision, substantial
action against it. RTC denied the motion to dismiss, as well as the MR. amendment of the complaint is not allowed without leave of court after
Respondent filed a petition for certiorari and prohibition before CA, an answer has been served, because any material change in the
claiming that the complaint did not contain a single averment that allegations contained in the complaint could prejudice the rights of the
respondent committed any act or is guilty of any omission in violation of defendant who has already set up his defense in the answer.
petitioner‘s legal rights. Apart from the allegation in the complaint‘s
―Jurisdictional Facts‖ that: Conversely, it cannot be said that the defendant‘s rights have been
violated by changes made in the complaint if he has yet to file an answer
1.05. Defendants British Steel (Asia) Ltd. and Ferro Trading Gmbh, thereto. In such an event, the defendant has not presented any defense
while understood by the plaintiff as mere suppliers of goods for that can be altered or affected by the amendment of the complaint in
defendant ISL, are impleaded as party defendants pursuant to Section accordance with Section 2 of Rule 10. The defendant still retains the
13, Rule 3 of the Revised Rules of Court unqualified opportunity to address the allegations against him by
properly setting up his defense in the answer. Considerable leeway is
no other reference was made to respondent that would constitute a valid thus given to the plaintiff to amend his complaint once, as a matter of
cause of action against it. Since petitioner failed to plead any cause of right, prior to the filing of an answer by the defendant.
action against respondent as alternative defendant under Section 13,
Rule 3, RTC should have ordered the dismissal of the complaint insofar The right granted to the plaintiff under procedural law to amend the
as respondent was concerned. complaint before an answer has been served is not precluded by the
filing of a motion to dismiss or any other proceeding contesting its
Petitioner sought to amend its complaint by incorporating therein sufficiency. Were we to conclude otherwise, the right to amend a
additional factual allegations constitutive of its cause of action against pleading under Section 2, Rule 10 will be rendered nugatory and
respondent. Pursuant to Section 2, Rule 10, petitioner maintained that it ineffectual, since all that a defendant has to do to foreclose this remedial
can amend the complaint as a matter of right because respondent has right is to challenge the adequacy of the complaint before he files an
not yet filed a responsive pleading thereto. Petitioner filed a answer.
Manifestation and Motion with the CA stating that it had filed a Motion to
Admit Amended Complaint together with said Amended Complaint Moreover, amendment of pleadings is favored and should be liberally
before the RTC. Hence, petitioner prayed that the proceedings in the allowed in the furtherance of justice in order to determine every case as
special civil action be suspended. far as possible on its merits without regard to technicalities. This
principle is generally recognized to speed up trial and save party litigants
RTC granted petitioner‘s Motion to Admit Amended Complaint. CA from incurring unnecessary expense, so that a full hearing on the merits
granted the writ of certiorari and ordered the respondent judge to of every case may be had and multiplicity of suits avoided.
dismiss without prejudice the Complaint against respondent.
The remedy espoused by the CA in its assailed judgment will precisely
result in multiple suits, involving the same set of facts and to which the
Remedial Law Review I – Civil Procedure
defendants would likely raise the same or, at least, related defenses. Regarding supplemental pleadings, these are availed of after the fact.
Plainly stated, we find no practical advantage in ordering the dismissal of
the complaint against respondent and for petitioner to re-file the same, ‗after the fact‘ – if something new transpired after the pleadings have
when the latter can still clearly amend the complaint as a matter of right. been already in the hands of the court, then you don‘t file an amended
The amendment of the complaint would not prejudice respondents or pleading but rather a supplemental pleading.
delay the action, as this would, in fact, simplify the case and expedite its
disposition. Under the Rules of Evidence, Rule 129 (What Need Not Be Proved),
judicial notice and judicial admissions need not be proved. As to the
Furthermore, we do not agree with respondent‘s claim that it will be latter, they are admissions in the pleadings.
prejudiced by the admission of the Amended Complaint because it had
spent time, money and effort to file its petition before the appellate court. Rule 129, Section 4. Judicial admissions. — An admission, verbal or
We cannot see how the result could be any different for respondent, if written, made by the party in the course of the proceedings in the same
petitioner merely re-filed the complaint instead of being allowed to case, does not require proof. The admission may be contradicted only
amend it. As adverted to earlier, amendment would even work to by showing that it was made through palpable mistake or that no such
respondent‘s advantage since it will undoubtedly speed up the admission was made.
proceedings before the trial court. Consequently, the amendment
should be allowed in the case at bar as a matter of right in accordance When you amend the pleading, what happens to the admissions there in
with the rules. the original pleading? They become extra judicial admissions. Therefore,
evidence must be offered. Only admissions in the pleadings, not extra
Section 5. Amendment to conform to or authorize presentation of judicial admissions.
evidence. — When issues not raised by the pleadings are tried with the
express or implied consent of the parties they shall be treated in all Section 7. Filing of amended pleadings. — When any pleading is
respects as if they had been raised in the pleadings. Such amendment amended, a new copy of the entire pleading, incorporating the
of the pleadings as may be necessary to cause them to conform to the amendments, which shall be indicated by appropriate marks, shall be
evidence and to raise these issues may be made upon motion of any filed.
party at any time, even after judgment; but failure to amend does not
effect the result of the trial of these issues. If evidence is objected to at Section 8. Effect of amended pleadings. — An amended pleading
the trial on the ground that it is not within the issues made by the supersedes the pleading that it amends. However, admissions in
pleadings, the court may allow the pleadings to be amended and shall superseded pleadings may be received in evidence against the pleader,
do so with liberality if the presentation of the merits of the action and the and claims or defenses alleged therein not incorporated in the amended
ends of substantial justice will be subserved thereby. The court may pleading shall be deemed waived.
grant a continuance to enable the amendment to be made.
Rule on Amendments in Criminal Procedure is more taxing. There is
Amendments vs Supplemental Pleadings only one pleading in criminal actions, the information; in civil actions,
there are a lot of pleadings that can be amended. In civil actions, we
Section 6. Supplemental pleadings. — Upon motion of a party the have amendatory pleadings and suppletory pleadings. In criminal
court may, upon reasonable notice and upon such terms as are just, procedure, there are no suppletory pleadings; instead, they have
permit him to serve a supplemental pleading setting forth transactions, amendments and substitutions.
occurrences or events which have happened since the date of the
pleading sought to be supplemented. The adverse party may plead B. Time/Period for Filing Responsive Pleadings
thereto within ten (10) days from notice of the order admitting the
supplemental pleading. Answer

Remedial Law Review I – Civil Procedure

Section 1. Answer to the complaint. — The defendant shall file his Section 8. Existing counterclaim or cross-claim. — A compulsory
answer to the complaint within fifteen (15) days after service of counterclaim or a cross-claim that a defending party has at the time he
summons, unless a different period is fixed by the court. files his answer shall be contained therein.

Section 2. Answer of a defendant foreign private juridical entity. — Section 9. Counterclaim or cross-claim arising after answer. — A
Where the defendant is a foreign private juridical entity and service of counterclaim or a cross-claim which either matured or was acquired by a
summons is made on the government official designated by law to party after serving his pleading may, with the permission of the court, be
receive the same, the answer shall be filed within thirty (30) days after presented as a counterclaim or a cross-claim by supplemental pleading
receipt of summons by such entity. before judgment.

Section 3. Answer to amended complaint. — When the plaintiff files Section 10. Omitted counterclaim or cross-claim. — When a pleader
an amended complaint as a matter of right, the defendant shall answer fails to set up a counterclaim or a cross-claim through oversight,
the same within fifteen (15) days after being served with a copy thereof. inadvertence, or excusable neglect, or when justice requires, he may, by
leave of court, set up the counterclaim or cross-claim by amendment
Where its filing is not a matter of right, the defendant shall answer the before judgment.
amended complaint within ten (10) days from notice of the order
admitting the same. An answer earlier filed may serve as the answer to Section 11. Extension of time to plead. — Upon motion and on such
the amended complaint if no new answer is filed. terms as may be just, the court may extend the time to plead provided in
these Rules.
This Rule shall apply to the answer to an amended counterclaim,
amended cross-claim, amended third (fourth, etc.)—party complaint, and The court may also, upon like terms, allow an answer or other pleading
amended complaint-in-intervention. to be filed after the time fixed by these Rules.

Section 4. Answer to counterclaim or cross-claim. — A counterclaim 4 periods under Rule 11: 10, 15, 30 and 60 days.
or cross-claim must be answered within ten (10) days from service.
10 (incomplete) 15 (incomplete) 30 60
Section 5. Answer to third (fourth, etc.)-party complaint. — The time Bill of particulars Filing an answer When Extraterritorial
to answer a third (fourth, etc.)—party complaint shall be governed by the Filing an answer Filing an answer defendant is a service of
same rule as the answer to the complaint. to amended to amended foreign summons under
complaint when complaint when juridical entity Section 15,
Section 7. Answer to supplemental complain. — A supplemental amendment is amendment is a and summons Rule 14.
complaint may be answered within ten (10) days from notice of the order NOT a matter of matter of right is served
admitting the same, unless a different period is fixed by the court. The right upon the
answer to the complaint shall serve as the answer to the supplemental Filing an answer Filing an answer government
complaint if no new or supplemental answer is filed. under Rules of to a third-, official
Summary fourth- party designated by
Reply Procedure complaint law (Section
Filing an answer 12, Rule 14)
Section 6. Reply. — A reply may be filed within ten (10) days from to a supplemental
service of the pleading responded to. complaint
Counterclaim or
Remedial Law Review I – Civil Procedure
Example: The complaint states that the defendant borrowed P100,000
C. Bill of Particulars from the plaintiff on 3 occasions.

Section 1. When applied for; purpose. — Before responding to a When was this?! Instead of filing an answer, file a motion for bill of
pleading, a party may move for a definite statement or for a bill of particulars. Particularize on what occasions defendant borrowed money.
particulars of any matter which is not averted with sufficient definiteness If the motion is granted, within 10 days from receipt of the order granting
or particularity to enable him properly to prepare his responsive motion for the bill of particular, the plaintiff will now particularize. The
pleading. If the pleading is a reply, the motion must be filed within ten plaintiff will say, what I meant by 3 occasions are: on Valentine‘s Day, on
(10) days from service thereof. Such motion shall point out the defects your birthday, and on Christmas day.
complained of, the paragraphs wherein they are contained, and the
details desired. So the defendant can answer: on Valentine‘s Day, I was not here. I was
in Boracay. On my birthday, I wasn‘t here too.
Section 2. Action by the court. — Upon the filing of the motion, the
clerk of court must immediately bring it to the attention of the court which If it is granted, the plaintiff has 10 days within which to file the bill of
may either deny or grant it outright, or allow the parties the opportunity to particular.
be heard.
If it is denied, the defendant only has the balance of the period, but the
Section 3. Compliance with order. — If the motion is granted, either in period shall not be less than 5 days. Hence, the doctrine laid down in
whole or in part, the compliance therewith must be effected within ten Domingo Neypes vs CA or the fresh day period rule does not apply in
(10) days from notice of the order, unless a different period is fixed by Rule 12. The same doctrine does not apply as well in Rule 16 or Motion
the court. The bill of particulars or a more definite statement ordered by to Dismiss and Rule 64 or Review of the judgment of COA or
the court may be filed either in a separate or in an amended pleading, COMELEC. These are the only instances when the fresh day period rule
serving a copy thereof on the adverse party. does not apply.

Section 4. Effect of non-compliance. — If the order is not obeyed, or The defendant received a copy of the summons on March 1. He has
in case of insufficient compliance therewith, the court may order the until March 16 within which to file the answer. Instead of filing the
striking out of the pleading or the portions thereof to which the order was answer, on March 2, he filed a bill of particulars. It was denied. When
directed or make such other order as it deems just. should the defendant file his answer? Within 14 days from his receipt of
the notice of the denial of the order. If you receive it on April, then start
Section 5. Stay of period to file responsive pleading. — After service counting 14 days in April.
of the bill of particulars or of a more definite pleading, or after notice of
denial of his motion, the moving party may file his responsive pleading Suppose instead of filing it on March 2, you file it on March 15 (1 day
within the period to which he was entitled at the time of filing his motion, before the expiration of the period to file the answer) and it was denied.
which shall not be less than five (5) days in any event. He has 5 days. If he receives it on April 5, he still has 5 days within
which to file or up to April 10.
Section 6. Bill a part of pleading. — A bill of particulars becomes part
of the pleading for which it is intended. D. Filing and Service of Pleadings, Judgments and other papers

Bill of particular – particularization of the allegation for the purpose that Section 1. Coverage. — This Rule shall govern the filing of all
the adverse party may be able to respond thoroughly or correctly to the pleadings and other papers, as well as the service thereof, except those
allegations in the pleading. for which a different mode of service is prescribed.

Distinction between Filing and Service

Remedial Law Review I – Civil Procedure

Section 2. Filing and service, defined. — Filing is the act of presenting Section 7. Service by mail. — Service by registered mail shall be made
the pleading or other paper to the clerk of court. 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
Service is the act of providing a party with a copy of the pleading or his residence, if known, with postage fully prepaid, and with instructions
paper concerned. If any party has appeared by counsel, service upon to the postmaster to return the mail to the sender after ten (10) days if
him shall be made upon his counsel or one of them, unless service upon undelivered. If no registry service is available in the locality of either the
the party himself is ordered by the court. Where one counsel appears for senders or the addressee, service may be done by ordinary mail.
several parties, he shall only be entitled to one copy of any paper served
upon him by the opposite side. Section 8. Substituted service. — If service of pleadings, motions,
notices, resolutions, orders and other papers cannot be made under the
Filing: Manner, completeness, proof two preceding sections, the office and place of residence of the party or
his counsel being unknown, service may be made by delivering the copy
Section 3. Manner of filing. — The filing of pleadings, appearances, to the clerk of court, with proof of failure of both personal service and
motions, notices, orders, judgments and all other papers shall be made service by mail. The service is complete at the time of such delivery.
by presenting the original copies thereof, plainly indicated as such,
personally to the clerk of court or by sending them by registered mail. In Section 9. Service of judgments, final orders, or resolutions. —
the first case, the clerk of court shall endorse on the pleading the date Judgments, final orders or resolutions shall be served either personally
and hour of filing. In the second case, the date of the mailing of motions, or by registered mail. When a party summoned by publication has failed
pleadings, or any other papers or payments or deposits, as shown by to appear in the action, judgments, final orders or resolutions against
the post office stamp on the envelope or the registry receipt, shall be him shall be served upon him also by publication at the expense of the
considered as the date of their filing, payment, or deposit in court. The prevailing party.
envelope shall be attached to the record of the case.
Section 10. Completeness of service. — Personal service is complete
Service: Mode, completeness, proof upon actual delivery. Service by ordinary mail is complete upon the
expiration of ten (10) days after mailing, unless the court otherwise
Section 4. Papers required to be filed and served. — Every provides. Service by registered mail is complete upon actual receipt by
judgment, resolution, order, pleading subsequent to the complaint, the addressee, or after five (5) days from the date he received the first
written motion, notice, appearance, demand, offer of judgment or similar notice of the postmaster, whichever date is earlier.
papers shall be filed with the court, and served upon the parties affected.
Priorities in Modes of Service
Section 5. Modes of service. — Service of pleadings motions, notices,
orders, judgments and other papers shall be made either personally or When you serve a copy of the pleading to the adverse party, it is
by mail. preferred that you do it personally. If you don‘t, you have to state your
explanation why you are not availing of personal service. What is the
Section 6. Personal service. — Service of the papers may be made by explanation? Any explanation for that matter. Why is this so? This is new
delivering personally a copy to the party or his counsel, or by leaving it in in the 1997 Rules of Court. There are a lot of lawyers abusing such
his office with his clerk or with a person having charge thereof. If no provision. Instead of personally serving, they serve by mail to buy time.
person is found in his office, or his office is not known, or he has no
office, then by leaving the copy, between the hours of eight in the Illustration of this abuse: The counsel of the plaintiff has his law office at
morning and six in the evening, at the party's or counsel's residence, if Pacific Land Building on the 44 floor. The defendant‘s counsel is on the
known, with a person of sufficient age and discretion then residing 4 floor of the same building. Yet they do it by mail.
Remedial Law Review I – Civil Procedure
Section 11. Priorities in modes of service and filing. — Whenever receipt of first
practicable, the service and filing of pleadings and other papers shall be registry
done personally. Except with respect to papers emanating from the notice
court, a resort to other modes must be accompanied by a written Proof If it is personally If personal service, proof is by
explanation why the service or filing was not done personally. A violation filed, the proof is the written admission of the party
of this Rule may be cause to consider the paper as not filed. stamp*** served, or the official return of
the server, or the affidavit of the
Section 14. Notice of lis pendens. — In an action affecting the title or party serving
the right of possession of real property, the plaintiff and the defendant, If it is service by If service by If service by
when affirmative relief is claimed in his answer, may record in the office registered mail, registered ordinary mail,
of the registry of deeds of the province in which the property is situated prove: (1) the time of mail, proof is proof is by an
notice of the pendency of the action. Said notice shall contain the names mailing and (2) time by an affidavit of the
of the parties and the object of the action or defense, and a description of receipt**** affidavit of person mailing
of the property in that province affected thereby. Only from the time of the person of facts
filing such notice for record shall a purchaser, or encumbrancer of the mailing of
property affected thereby, be deemed to have constructive notice of the facts and the
pendency of the action, and only of its pendency against the parties registry
designated by their real names. receipt

The notice of lis pendens hereinabove mentioned may be cancelled only * When it comes to filing, only registered mail is accepted. When it
upon order of the court, after proper showing that the notice is for the comes to service, it may be either registered or ordinary mail. What is
purpose of molesting the adverse party, or that it is not necessary to the rationale? First, the service may be through ordinary mail because it
protect the rights of the rights of the party who caused it to be recorded. comes from the residence of the party. In some parts of the country
there are no registry services. Second, with regard to the prescriptive
There are 2 general issues: filing and service. Under those 2 issues, period, filing can only be done through registered mail because it is
there are 3 sub-issues: difficult to count for the court if it is by ordinary mail. Although the rule
regarding completeness already provides as to when it is complete.
Filing Service
Modes or Personal filing Personal service ** If you mail it on March 1, when is it complete? March 12 (expiration of
manner By registered mail Service by mail 10 days).
(registered mail Registered Ordinary*
only!) *** What if there is no stamp (as what happens in actual practice)? A
Completenes If filed personally, it If personal, it is complete upon filed. The pleading A filed could no longer be located by the Clerk or
s is complete upon receipt Court. How do you prove it? Through the stamp on your own copy.
receipt by the Clerk
of Court **** You are given a registry receipt as proof of mailing, and then you
If filed by mail, it is If by If by ordinary attach that to a return card as proof of receipt.
complete only upon registered mail, upon
the expiration of 5 mail, it is expiration of Section 12. Proof of filing. — The filing of a pleading or paper shall be
days from receipt of complete the 10 days proved by its existence in the record of the case. If it is not in the record,
first registry notice only upon the from mailing** but is claimed to have been filed personally, the filing shall be proved by
expiration of the written or stamped acknowledgment of its filing by the clerk of court
5 days from on a copy of the same; if filed by registered mail, by the registry receipt
Remedial Law Review I – Civil Procedure
and by the affidavit of the person who did the mailing, containing a Section 1. Clerk to issue summons. — Upon the filing of the complaint
full statement of the date and place of depositing the mail in the post and the payment of the requisite legal fees, the clerk of court shall
office in a sealed envelope addressed to the court, with postage fully forthwith issue the corresponding summons to the defendants.
prepaid, and with instructions to the postmaster to return the mail to the
sender after ten (10) days if not delivered. Section 2. Contents. — The summons shall be directed to the
defendant, signed by the clerk of court under seal and contain (a) the
The affidavit refers to the affidavit of the sender, not the one who mailed. name of the court and the names of the parties to the action; (b) a
In proof of filing, it says registry receipt ―and‖ affidavit; in proof service, it direction that the defendant answer within the time fixed by these Rules;
says ―or.‖ Make a distinction there. (c) a notice that unless the defendant so answers plaintiff will take
judgment by default and may be granted the relief applied for.
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 A copy of the complaint and order for appointment of guardian ad litem if
server, or the affidavit of the party serving, containing a full statement of any, shall be attached to the original and each copy of the summons.
the date, 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 3. Who serves?
showing compliance with section 7 of this Rule. If service is made by
registered mail, proof shall be made by such affidavit and the registry Only three people are qualified to serve the summons: the sheriff,
receipt issued by the mailing office. The registry return card shall be filed deputy sheriff, or any other person authorized by the court.
immediately upon its receipt by the sender, or in lieu thereof the
unclaimed letter together with the certified or sworn copy of the notice Example of a person authorized by the Rules is Section 9. When the
given by the postmaster to the addressee. defendant is a prisoner, to whom should it be served? It should be
served to the prisoner by the warden. The warden is authorized by the
An SC Circular says that when you file before the SC and the CA, you Rule.
have to attach a copy of the affidavit of service (not filing). The SC or the
CA will not accept any pleading that does not include an affidavit of Can the plaintiff serve the summons to the defendant? Only if he has
service. been authorized by the court. He has to ask for leave to do that and only
for justifiable reasons.
E. Summons
Example: If after several tries, the sheriff cannot find the whereabouts of
1. What is summons? the defendant. Only the plaintiff knows because the defendant keeps
transferring from one residence to another. The plaintiff should move to
Alias summons is one which is the second or third or fourth summons leave for service of summons. In actual practice, you do not go to such
prepared. lengths; you simply accompany the sheriff.

2. Who issues, to whom addressed? Section 3. By whom served. — The summons may be served by the
sheriff, his deputy, or other proper court officer, or for justifiable reasons
After the complaint was filed by the plaintiff, summons was served upon by any suitable person authorized by the court issuing the summons.
the defendant. The defendant, in reading the summons, contested it and
threw it away saying it is not signed by the judge. Is that error on the part Section 4. Return. — When the service has been completed, the server
of the court? No, the judge never signs nor issues the summons. It is the shall, within five (5) days therefrom, serve a copy of the return,
clerk of court that signs, issues and serves the summons, not the judge. personally or by registered mail, to the plaintiff's counsel, and shall
return the summons to the clerk, who issued it, accompanied by proof of
Remedial Law Review I – Civil Procedure
server left without leaving a copy of the summons and complaint for
Section 5. Issuance of alias summons. — If a summons is returned Lourdes.
without being served on any or all of the defendants, the server shall
also serve a copy of the return on the plaintiff's counsel, stating the Alfredo filed his Answer with Counterclaim. Lourdes did not file an
reasons for the failure of service, within five (5) days therefrom. In such Answer. Rosita moved to declare Lourdes in default. Alfredo entered a
a case, or if the summons has been lost, the clerk, on demand of the special appearance in behalf of his wife and opposed Rosita‘s motion.
plaintiff, may issue an alias summons. The RTC denied the motion to declare Lourdes in default. The trial court
likewise denied Rosita‘s motion for reconsideration.
4. Kinds of summons
Rosita file a petition for certiorari, prohibition and mandamus with the
What are the modes of service of summons? (must be distinguished CA. The appellate court granted the petition and declared Lourdes in
from modes of service of pleadings) default.

a. service in person on the defendant (don‘t say personal service, to SC: There was no valid service of summons upon the petitioner Lourdes
distinguish it from service of pleadings) Valmonte. The rules on service of summons apply according to whether
an action is an action in personam, in rem or quasi in rem.
There are 2 ways: delivering it to the defendant himself; and if he
refuses to accept it, by leaving it with him as laid down in Valmonte vs In an action in personam, personal service of summons or, if this is not
CA. possible and he cannot be personally served, substituted service, as
provided in Rule 14, §§7-82 is essential for the acquisition by the court
Section 6. Service in person on defendant. — Whenever practicable, of jurisdiction over the person of a defendant who does not voluntarily
the summons shall be served by handling a copy thereof to the submit himself to the authority of the court. If defendant cannot be
defendant in person, or, if he refuses to receive and sign for it, by served with summons because he is temporarily abroad, but otherwise
tendering it to him. he is a Philippine resident, service of summons may, by leave of court,
be made by publication. Otherwise stated, a resident defendant in an
Valmonte vs CA: Rosita Dimalanta filed a complaint for partition of real action in personam, who cannot be personally served with summons,
property and accounting of rentals against her sister Lourdes Valmonte may be summoned either by means of substituted service in accordance
and her husband Alfredo Valmonte. Lourdes and Alfredo are residents of with Rule 14, §8 or by publication as provided in §§ 17 and 18 of the
Seattle, Washington, USA. Alfredo has a law office in Mabini, Ermita, same Rule.
Manila and divides his time between the USA and the Philippines.
In all of these cases, it should be noted, defendant must be a resident of
Rosita‘s complaint stated that summons may be served in the Ermita the Philippines, otherwise an action in personam cannot be brought
address where Alfredo, as Lourdes‘ spouse, holds office and where he because jurisdiction over his person is essential to make a binding
can be found. This was based on a letter Lourdes sent to Rosita‘s lawyer decision.
wherein she referred to her husband as the party to whom all
communications regarding the partition of the property intended for her On the other hand, if the action is in rem or quasi in rem, jurisdiction over
should be sent. the person of the defendant is not essential for giving the court
jurisdiction so long as the court acquires jurisdiction over the res. If the
Service of summons was made upon Alfredo who was at his office in defendant is a nonresident and he is not found in the country, summons
Manila. He accepted the summons insofar as he was concerned. He may be served exterritorially in accordance with Rule 14, §17.
refused to accept the summons for his wife, Lourdes, on the ground that
he was not authorized to accept the process on her behalf. The process In such cases, what gives the court jurisdiction in an action in rem or
quasi in rem is that it has jurisdiction over the res, i.e. the personal
Remedial Law Review I – Civil Procedure
status of the plaintiff who is domiciled in the Philippines or the property according to the rules, shall be not less than sixty (60) days after notice.
litigated or attached. It must be noted that the period to file an Answer in an action against a
resident defendant differs from the period given in an action filed against
Applying the foregoing rules to the case at bar, private respondent's a nonresident defendant who is not found in the Philippines. In the
action, which is for partition and accounting under Rule 69, is in the former, the period is fifteen (15) days from service of summons, while in
nature of an action quasi in rem. Such an action is essentially for the the latter, it is at least sixty (60) days from notice.
purpose of affecting the defendant's interest in a specific property and
not to render a judgment against him. b. substituted service

Service of summons on her attorney cannot be justified under the third Substituted service of summons is upon the person residing in the
mode provided for by Section 17, Rule 14. residence of the defendant who must be of age and discretion. If he
cannot be found there, at the office of the defendant, to a person in
As petitioner Lourdes A. Valmonte is a nonresident who is not found in charge therein of age and discretion.
the Philippines, service of summons on her must be in accordance with
Rule 14, §17. Such service, to be effective outside the Philippines, must Section 7. Substituted service. — If, for justifiable causes, the
be made either (1) by personal service; (2) by publication in a defendant cannot be served within a reasonable time as provided in the
newspaper of general circulation in such places and for such time as the preceding section, service may be effected (a) by leaving copies of the
court may order, in which case a copy of the summons and order of the summons at the defendant's residence with some person of suitable age
court should be sent by registered mail to the last known address of the and discretion then residing therein, or (b) by leaving the copies at
defendant; or (3) in any other manner which the court may deem defendant's office or regular place of business with some competent
sufficient. person in charge thereof.

This mode of service, like the first two, must be made outside the Manotoc vs CA: Agapita Trajano sought the enforcement of a foreign
Philippines, such as through the Philippine Embassy in the foreign judgment rendered by the US District Court of Hawaii against Ma.
country where the defendant resides. Moreover, there are several Imelda Manotoc (Imee Marcos) for the wrongful death of Archimedes
reasons why the service of summons on Atty. Alfredo D. Valmonte Trajano committed by military intelligence in the Philippines allegedly
cannot be considered a valid service of summons on petitioner Lourdes working for Manotoc. RTC issued summons for Manotoc addressed at
A. Valmonte: Alexandra Homes, Pasig. It was served on a Macky dela Cruz described
as a caretaker of her unit. Manotoc failed to file her answer and was
1. Service of summons on petitioner Alfredo D. Valmonte was not declared in default.
made upon the order of the court as required by Rule 14, §17 and
certainly was not a mode deemed sufficient by the court which in fact Manotoc filed a motion to dismiss on the ground of lack of jurisdiction
refused to consider the service to be valid and on that basis declare over her person, stating that she is not a resident of the said condo and
petitioner Lourdes A. Valmonte in default for her failure to file an answer. that she does not hold office there, and dela Cruz is not her
representative or employee. Thus no valid service was made. Further,
2. Service in the attempted manner on petitioner was not made she states that she is a resident of Singapore.
upon prior leave of the trial court as required also in Rule 14, §17. As
provided in §19, such leave must be applied for by motion in writing, RTC denied the motion and the subsequent MR. Manotoc filed a petition
supported by affidavit of the plaintiff or some person on his behalf and for certiorari and prohibition with the CA, that was denied. MR was also
setting forth the grounds for the application. denied.

3. Because there was no order granting such leave, petitioner Issue: Whether there was valid substituted service.
Lourdes A. Valmonte was not given ample time to file her Answer which,
Remedial Law Review I – Civil Procedure
SC: No. In actions strictly ‗in perosnam‘ jurisdiction over the person of the respondent court. [Respondents] filed an Ad Cautelam motion
the defendant is mandatory and can be complied with valid service of questioning, among others, the validity of the service of summons
summons. If defendant cannot be served, for excusable reason, within a effected by the court a quo. The public respondent issued an Order
reasonable time, substituted service can be resorted to. It is denying the said motion on the basis of the defaulted [respondents‘]
extraordinary in character and a derogation of the usual method of supposed loss of standing in court. The [respondents] once again raised
service thus rules for such must be faithfully complied with. the issue of jurisdiction of the trial court via a motion for reconsideration,
which was also denied. The [petitioners] moved for the execution of
The requirements of valid substituted service if there is impossibility of the controverted judgment which the respondent judge ultimately
prompt personal service which is 15-30 days for the sheriff are: granted.
1) By leaving copies of summons at defendant‘s residence with a person
of suitable age and discretion residing therein or by leaving copies at the Respondents filed before the CA a Petition for certiorari under Rule 65,
defendant‘s office or regular place of business with some competent questioning the jurisdiction of the RTC. CA held that RTC had no
person in charge. authority to issue the questioned Resolution and Orders since it never
2) The sheriff must narrate in specific details how service in person acquired jurisdiction over respondents because of the invalid service of
became impossible. summons upon them. First, the sheriff failed to comply with the
3) The attempt must be extraordinary and at least 3 times. The person of requirements of substituted service of summons, because he did not
suitable age and discretion must be at least 18 years old, able to read specify in the Return of Summons the prior efforts he had made to locate
the summons written in English, and must be with confidential relation to them and the impossibility of promptly serving the summons upon them
defendant. A competent person in charge can be the president or by personal service. Second, the subsequent summons by publication
manager. was equally infirm, because the Complaint was a suit for specific
performance and therefore an action in personam.
The substituted service was invalid because the sheriff did not comply
with the requirements. dela Cruz was not a representative of Manotoc. Issue: Whether the service of summons on respondents was valid
Therefore, since there was no valid service of summons, there was no
jurisdiction acquired. SC: No. [P]ersonal service of summons is preferred to substituted
service. Only if the former cannot be made promptly can the process
Jose vs Boyon: Petitioners Patrick and Rafaela Jose lodged a server resort to the latter. Moreover, the proof of service of summons
complaint for specific performance against respondents Helen and must (a) indicate the impossibility of service of summons within a
Romeo Boyon to compel them to facilitate the transfer of ownership of a reasonable time; (b) specify the efforts exerted to locate the defendant;
parcel of land subject of a controverted sale. Respondent judge issued and (c) state that the summons was served upon a person of sufficient
summons to the [respondents]. As per return of the summons, age and discretion who is residing in the address, or who is in charge of
substituted service was resorted to by the process server allegedly the office or regular place of business, of the defendant. It is likewise
because efforts to serve the summons personally to the [respondents] required that the pertinent facts proving these circumstances be stated
failed. [Petitioners] filed before the trial court an Ex-parte Motion for in the proof of service or in the officer‘s return. The failure to comply
Leave of Court to Effect Summons by Publication. The Judge issued an faithfully, strictly and fully with all the foregoing requirements of
Order granting the Ex-parte Motion for Leave of Court to Effect substituted service renders the service of summons ineffective.
Summons by Publication. The judge, sans a written motion, issued an
Order declaring [respondents] in default for failure to file their respective The Return of Summons shows that no effort was actually exerted
answers. As a consequence of the declaration of default, [petitioners] and no positive step taken by either the process server or
were allowed to submit their evidence ex-parte. petitioners to locate and serve the summons personally on
respondents. At best, the Return merely states the alleged
Helen , who was then residing in the United States of America, was whereabouts of respondents without indicating that such information was
surprised to learn from her sister Elizabeth , of the resolution issued by verified from a person who had knowledge thereof. Without specifying
Remedial Law Review I – Civil Procedure
the details of the attendant circumstances or of the efforts exerted filed a motion for reconsideration, but to no avail. Hence, this petition for
to serve the summons, a general statement that such efforts were review.
made will not suffice for purposes of complying with the rules of
substituted service of summons. Issue: Whether there was valid service of summons on private
Mason vs CA: Spouses Efren and Digna Mason owned 2 parcels of
land. Petitioners and private respondent Columbus Philippines Bus SC: No. Petitioners contend that while Section 11, Rule 14 clearly
Corporation entered into a lease contract, under which Columbus specifies the persons authorized to receive summons on behalf of a
undertook to construct a building worth P10,000,000 at the end of the 3 private juridical entity, said provision did not abandon or render
year of the lease. Because Columbus failed to comply with this inapplicable the substantial compliance rule. The case law applicable,
stipulation, the petitioners, filed a complaint for rescission of contract contends Columbus, is Villarosa which squarely provides for the proper
with damages against Columbus before the RTC. interpretation of the new rule on the service of summons upon domestic
corporation, thus: The designation of persons or officers who are
Summons was served upon Columbus through a certain Ayreen authorized to accept summons for a domestic corporation or partnership
Rejalde. While the receiving copy of the summons described Rejalde as is now limited and more clearly specified in Section 11, Rule 14 of the
a secretary of Columbus, the sheriff‘s return described Rejalde as a 1997 Rules of Civil Procedure. The rule now states "general manager"
secretary to the corporate president, duly authorized to receive legal instead of only "manager"; "corporate secretary" instead of "secretary";
processes. and "treasurer" instead of "cashier." The phrase "agent, or any of its
directors" is conspicuously deleted in the new rule. Service through
Columbus failed to file its answer or other responsive pleading, hence Ayreen Rejalde, a mere filing clerk of private respondent and not
petitioners filed a motion to declare Columbus in default. The motion one of those enumerated above, is invalid.
was granted and petitioners were allowed to present evidence ex-parte. We find private respondent’s submission on this issue meritorious.
The case was submitted for decision. RTC ruled in favor of the plaintiffs
and against Columbus. That decision became final on May 12, 1999. The question of whether the substantial compliance rule is still
The following day, Columbus filed a motion to lift order of default, which applicable under Section 11, Rule 14 of the 1997 Rules of Civil
was opposed by petitioners. RTC ordered the parties to submit their Procedure has been settled in Villarosa which applies squarely to the
respective memoranda. However, without waiting for the same, RTC on instant case. Notice to enable the other party to be heard and to present
May 26, 1999, denied the motion to lift order of default. Columbus filed a evidence is not a mere technicality or a trivial matter in any
motion for reconsideration, which was denied. Undaunted, Columbus administrative or judicial proceedings. The service of summons is a
filed a manifestation and motion to lift the writ of execution. It suffered vital and indispensable ingredient of due process. We will deprive
the same fate as the motion for reconsideration for being dilatory. The Columbus of its right to present its defense in this multi-million peso suit,
branch sheriff was directed to proceed with the enforcement of the if we disregard compliance with the rules on service of summons.
E.B. Villarosa vs Benito: Petitioner and private respondent executed a
Columbus appealed to the Court of Appeals, which ruled in its favour. Deed of Sale with Development Agreement wherein the former agreed
Columbus was not properly served with summons, thus it cannot be to develop parcels of land belonging to the latter into a housing
faulted if it failed to file an Answer. Section 11, Rule 14 of the 1997 subdivision for the construction of low cost housing units. Private
requires that service of summons upon domestic private juridical entity respondent filed a Complaint for Breach of Contract and Damages
shall be made through its president, managing partner, general against petitioner before the RTC allegedly for failure of the latter to
manager, corporate secretary, treasurer or in-house counsel. Since comply with its contractual obligation in that, other than a few unfinished
service upon Columbus was made through a certain Ayreen Rejalde, a low cost houses, there were no substantial developments. Summons,
mere filing clerk in Columbus’ office, as evidenced by the latter‘s with the complaint, were served upon the petitioner, through its Branch
employment record, such service cannot be considered valid. Petitioner Manager Engr. Wendell Sabulbero at the stated address at Kolambog,
Remedial Law Review I – Civil Procedure
Lapasan, Cagayan de Oro (CdO) City but the Sheriff‘s Return of Service service, is an illustration of the need for this revised section with limited
stated that the summons was duly served upon petitioner thru scope and specific terminology. Thus the absurd result in the Filoil case
SALBULBERO at their new office Villa Gonzalo, Nazareth, CdO City. necessitated the amendment permitting service only on the in-house
counsel of the corporation who is in effect an employee of the
Petitioner filed a Special Appearance with Motion to Dismiss alleging corporation, as distinguished from an independent practitioner.‖
that the summons was served upon Sabulbero, who is not one of those
persons upon whom service of summons may be made. Private The purpose is to render it reasonably certain that the corporation will
respondent filed a Motion to Declare Defendant in Default alleging that receive prompt and proper notice in an action against it or to insure that
petitioner has failed to file an Answer. Private respondent filed an the summons be served on a representative so integrated with the
Opposition to the Motion to Dismiss. RTC denied the Motion to Dismiss corporation that such person will know what to do with the legal papers
as well as the Motion to Declare in Default, stating that since the served on him. In other words, ‗to bring home to the corporation notice
summons and copy of the complaint were in fact received by the of the filing of the action.‘ x x x.
corporation through its branch manager, there was substantial
compliance with the rule on service of summons and consequently, it The liberal construction rule cannot be invoked and utilized as a
validly acquired jurisdiction over the person of the petitioner. substitute for the plain legal requirements as to the manner in which
summons should be served on a domestic corporation. x x x.‖
Petitioner contends that the enumeration of persons to whom summons
may be served is ―restricted, limited and exclusive‖ following the rule on Even under the old rule, service upon a general manager of a firm’s
statutory construction expressio unios est exclusio alterius. branch office has been held as improper as summons should have
been served at the firm’s principal office.
Issue: Whether or not the service of summons upon the branch manager
of petitioner at its branch office at Cagayan de Oro, instead of upon the The fact that defendant filed a belated motion to dismiss did not operate
general manager at its principal office at Davao City was proper. to confer jurisdiction upon its person. There is no question that the
defendant‘s voluntary appearance in the action is equivalent to service
SC: No. Under the new Rules, service of summons upon an agent of the of summons. Before, the rule was that a party may challenge the
corporation is no longer authorized. The cases cited by private jurisdiction of the court over his person by making a special appearance
respondent are therefore not in point. The designation of persons or through a motion to dismiss and if in the same motion, the movant raised
officers who are authorized to accept summons for a domestic other grounds or invoked affirmative relief which necessarily involves the
corporation or partnership is now limited and more clearly specified in exercise of the jurisdiction of the court, the party is deemed to have
Section 11, Rule 14. The rule now states ―general manager‖ instead of submitted himself to the jurisdiction of the court. This doctrine has been
only ―manager‖; ―corporate secretary‖ instead of ―secretary‖; and abandoned in the case of La Naval Drug Corporation vs. Court of
―treasurer‖ instead of ―cashier.‖ The phrase ―agent, or any of its Appeals, et al., which became the basis of the adoption of a new
directors‖ is conspicuously deleted in the new rule. provision in the former Section 23, which is now Section 20 of Rule 14 of
the 1997 Rules. The emplacement of this rule clearly underscores the
The particular revision was explained by retired SC Justice Florenz purpose to enforce strict enforcement of the rules on summons.
Regalado, thus: ―x x x the then Sec. 13 of this Rule allowed service upon Accordingly, the filing of a motion to dismiss, whether or not
a defendant corporation to ‗be made on the president, manager, belatedly filed by the defendant, his authorized agent or attorney,
secretary, cashier, agent or any of its directors.‘ The terms were precisely objecting to the jurisdiction of the court over the person
obviously ambiguous and susceptible of broad and sometimes illogical of the defendant can by no means be deemed a submission to the
interpretations, especially the word ‗agent‘ of the corporation. The Filoil jurisdiction of the court.
case, involving the litigation lawyer of the corporation who precisely
appeared to challenge the validity of service of summons but whose very c. extraterritorial
appearance for that purpose was seized upon to validate the defective
Remedial Law Review I – Civil Procedure
Section 15. Extraterritorial service. — When the defendant does not such agent, on the government official designated by law to that effect,
reside and is not found in the Philippines, and the action affects the or on any of its officers or agents within the Philippines.
personal status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims a Section 13. Service upon public corporations. — When the
lien or interest, actual or contingent, or in which the relief demanded defendant is the Republic of the Philippines, service may be effected on
consists, wholly or in part, in excluding the defendant from any interest the Solicitor General; in case of a province, city or municipality, or like
therein, or the property of the defendant has been attached within the public corporations, service may be effected on its executive head, or on
Philippines, service may, by leave of court, be effected out of the such other officer or officers as the law or the court may direct.
Philippines by personal service as under section 6; or by publication in a
newspaper of general circulation in such places and for such time as the b. on natural persons: prisoners; minors/incompetents; unknown;
court may order, in which case a copy of the summons and order of the entities without juridical personality
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 Section 8. Service upon entity without juridical personality. — When
order granting such leave shall specify a reasonable time, which shall persons associated in an entity without juridical personality are sued
not be less than sixty (60) days after notice, within which the defendant under the name by which they are generally or commonly known,
must answer. (17a) service may be effected upon all the defendants by serving upon any
one of them, or upon the person in charge of the office or place of
Section 16. Residents temporarily out of the Philippines. — When business maintained in such name. But such service shall not bind
any action is commenced against a defendant who ordinarily resides individually any person whose connection with the entity has, upon due
within the Philippines, but who is temporarily out of it, service may, by notice, been severed before the action was brought.
leave of court, be also effected out of the Philippines, as under the
preceding section. Section 9. Service upon prisoners. — When the defendant is a
prisoner confined in a jail or institution, service shall be effected upon
i. personal him by the officer having the management of such jail or institution who
ii. by publication is deemed deputized as a special sheriff for said purpose.
iii. any mode
Section 10. Service upon minors and incompetents. — When the
5. On whom served defendant is a minor, insane or otherwise an incompetent, service shall
be made upon him personally and on his legal guardian if he has one, or
There are specific kinds of defendants. if none his guardian ad litem whose appointment shall be applied for by
the plaintiff. In the case of a minor, service may also be made on his
a. on corporations: public or private, domestic or foreign father or mother.

Section 11. Service upon domestic private juridical entity. — When If the defendant is a minor, it is definitely by representative party. To
the defendant is a corporation, partnership or association organized whom do you serve the summons? Serve the summons upon the minor
under the laws of the Philippines with a juridical personality, service may OR (not AND) the parent. But if it is an incompetent, you serve it on the
be made on the president, managing partner, general manager, incompetent AND the parent or guardian or guardian ad litem. If it is a
corporate secretary, treasurer, or in-house counsel. minor, service of summons upon the parent is sufficient. But if it an
incompetent, it must be served on both the incompetent and the
Section 12. Service upon foreign private juridical entities. — When parent/guardian/guardian ad litem.
the defendant is a foreign private juridical entity which has transacted
business in the Philippines, service may be made on its resident agent Don‘t apply the word incompetent here to those who are incompetent
designated in accordance with law for that purpose, or, if there be no under settlement of estate (ex. drunkards). That‘s a different matter.
Remedial Law Review I – Civil Procedure
Ramos vs Ramos:
Section 14. Service upon defendant whose identity or whereabouts Teh vs CA:
are unknown. — In any action where the defendant is designated as an Santos vs PNOC Exp.:
unknown owner, or the like, or whenever his whereabouts are unknown Dole Phil vs Quilala:
and cannot be ascertained by diligent inquiry, service may, by leave of Pascual vs Pascual:
court, be effected upon him by publication in a newspaper of general
circulation and in such places and for such time as the court may order.
Rule 16
6. Proofs of service
JUNE 17, 2014
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 Rule 16
necessary shall be made by motion in writing, supported by affidavit of Motion to dismiss
the plaintiff or some person on his behalf, setting forth the grounds for
the application. Section 1. Grounds. — Within the time for but before filing the answer to
the complaint or pleading asserting a claim, a motion to dismiss may be
Section 18. Proof of service. — The proof of service of a summons made on any of the following grounds:
shall be made in writing by the server and shall set forth the manner,
place, and date of service; shall specify any papers which have been
(a) That the court has no jurisdiction over the person of the
served with the process and the name of the person who received the
defending party;
same; and shall be sworn to when made by a person other than a sheriff
or his deputy.
(b) That the court has no jurisdiction over the subject matter of
Section 19. Proof of service by publication. — If the service has been the claim;
made by publication, service may be proved by the affidavit of the
printer, his foreman or principal clerk, or of the editor, business or (c) That venue is improperly laid;
advertising manager, to which affidavit a copy of the publication shall be
attached and by an affidavit showing the deposit of a copy of the (d) That the plaintiff has no legal capacity to sue;
summons and order for publication in the post office, postage prepaid,
directed to the defendant by registered mail to his last known address. (e) That there is another action pending between the same
parties for the same cause;
F. Voluntary Appearance
(f) That the cause of action is barred by a prior judgment or by
Section 20. Voluntary appearance. — The defendant's voluntary
the statute of limitations;
appearance in the action shall be equivalent to service of summons. The
inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a (g) That the pleading asserting the claim states no cause of
voluntary appearance. action;

Biglang-awa vs Phil. Trust Co: (h) That the claim or demand set forth in the plaintiff's pleading
Asean Pacific Planners vs City of Urdaneta: has been paid, waived, abandoned, or otherwise extinguished;
De Dios vs CA:
Millenium Ind. & Com. Corp. vs Tan:
Remedial Law Review I – Civil Procedure
(i) That the claim on which the action is founded is enforceable foreclosure. In fact, the judgment for foreclosure does not say judgment
under the provisions of the statute of frauds; and to sell. If the court renders a judgment to sell in a foreclosure
proceeding, it is an abuse of discretion and a ground for certiorari
(j) That a condition precedent for filing the claim has not been because a judgment under Rule 68 must be a judgment to pay and
complied with. (1a) never a judgment to sell. The layman‘s knowledge of foreclosure, when
it is said that one‘s property is foreclosed, the property must be sold right
Principles involved in motions: away. When a property is foreclosed, it means that the judgment is to
pay for the mortgage debt.
1. 3-day notice rule
2. 10-day setting rule
Instead of going to trial, they filed a motion to dismiss on the ground that
Kinds of motions: the complaint did not state a cause of action. RTC denied the motion.
1. Litigated
Recite grounds for a motion to dismiss. See Rule.
2. Non-litigated or oral
a. In the course of the trial, for example, a counsel would
They then filed a second motion to dismiss on the ground that the
raise his hand, and say ―Objection, your honor‖, that is
certification against forum shopping attached to the complaint was not
an oral motion.
b. There are also certain motions that do not require executed by the principal parties (plaintiffs) in violation of Sec. 5, Rule 7,
hearings. When you file a motion before the CA or the 1997 Rules of Civil Procedure, rendering the complaint fatally defective
and thus dismissible.
SC, never set that for hearing, because hearing before
the SC is not a matter of right, but a matter of discretion.
They went up to the CA on certiorari. Why certiorari?
i. The same with the CA, they do not want parties
to set hearings. Especially now that the CA,
under the new rules, can conduct trials, and What did we study regarding the jurisdiction of the SC particularly Sec.
5, Article VIII of the Constitution? Regarding appellate jurisdiction?
accept evidence.
Review, revise, modify or affirm by appeal or certiorari
ii. Even if the CA and SC has original jurisdiction,
you do not set motion submitted before them for
When is it appeal? When it is a pure question of law, in other words, an
hearing, because it is a matter of discretion on
the part of the CA and SC. error of judgment

When is it certiorari? When there is error of jurisdiction

Omnibus motion rule (Sec. 8)
Insert here
In this case, they went up on certiorari because it is an error of
De Guzman v Ochoa jurisdiction. Because accordingly the ground relied upon in this case is a
Omnibus motion in relation to motion dismiss matter of jurisdiction, it is not just a matter of any lack of cause of action
or other grounds, but an error of jurisdiction. A motion to dismiss may
either be granted or denied. If it is denied, the order denying it is? What
Facts of the case
kind of order? Interlocutory order. What is an interlocutory order? There
What was the principal action? Annulment of contract of is no finality yet as the court has still something to do. When the court
has nothing more to do, it is a final order, and thus, the remedy is
appeal. But if it is interlocutory, thus the court has still something more to
What happened? Why was there an action for foreclosure/annulment of do, then, the remedy is certiorari.
mortgage? Failure to pay the loan. There are no other grounds for

Remedial Law Review I – Civil Procedure

The second motion to dismiss was also denied because of the omnibus 3. Rule 37 (new trial/recon)
motion rule. Is the omnibus motion rule an absolute rule? No. 4. Rule 40-45 (appeals)
5. After judgment has been entered, Rule 38 and 47 (petition for
What are the exceptions? Only matters of jurisdiction; Rule 9, Sec. 1 relief from judgment and annulment of judgment)

What is the doctrine derived from this case? The Court disposed the Where do you find the equivalent of motion to dismiss in criminal
issue on interlocutory orders, which do not terminate a case. The procedure? Motion to quash under Sec. 3, Rule 117. Read this together
general rule is that a denial of a motion to dismiss cannot be questioned with Sec. 1, Rule 16. Every ground for a motion to dismiss has its
in a special civil action. equivalent in a motion to quash. But take note that these are two
different things. What are the distinction between a motion to dismiss
So, what is the remedy of the party whose motion to dismiss is denied? and a motion to quash?
Take note, certiorari is not a remedy, as a general rule, because under 1. MTD applies in civil cases; MTQ applies in criminal cases
Rule 65, Sec. 1, certiorari is anchored only on three grounds – lack of 2. MTD has 10 grounds; MTQ has 9 grounds, why is it so? What is
jurisdiction, excess of jurisdiction, grave abuse of discretion amounting lacking in motion to quash? Venue. Because in criminal cases,
to lack of jurisdiction – that is why certiorari is not a remedy against an venue is jurisdictional, so it is not a ground anymore for MTQ.
order denying a motion to dismiss, what then is the remedy? File an a. But every ground in MTD has an equivalent in MTQ.
answer, go to trial, and if you lose, you have all the remedies against a Examples:
judgment – appeal. And in your appeal, you now assign as error, the i. Under res judicata or that the cause of action
error of the court in denying your motion to dismiss. That is why has been barred by prior judgment or by the
pursuant to the SC AM 07-7-12, amendments on Rule 41, 45, 58 and statute of limitation = That the accused has
65, specifically regarding 65, it provides that when you avail of certiorari been previously convicted or acquitted or the
when you should not have availed of it, and it was found out by the court case against him has been dismissed without
that you are simply delaying the resolution of the case, the penalty is not his consent;
only on the party, but to the lawyer as well. Triple? (check the AM, ii. Failure to state cause of action = That the facts
insert here) charged do not constitute an offense
iii. That plaintiff has no legal capacity to sue = That
When is there grave abuse of discretion? When there are capricious and the officer who filed the information has no
whimsical, arbitrary and despotic actuations of the court (remember authority to do so
these, they go in twos) iv. Litis pendentia = duplicity of offense filed in one
When you cannot establish whimsical, capricious, arbitrary, and v. Condition precedent = Did not comply
despotic, certiorari is out of the question. But here, denial of a motion to substantially with the prescribed form
dismiss therefore, even if it is interlocutory, certiorari is not the remedy, 3. In a MTD, you seek to dismiss the complaint; In a MTQ, you
but you go to trial and whatever judgment, if unfavorable, you appeal. Or seek to quash the information.
other remedies under Rule 37, new trial or reconsideration, or appeal.
Remember, there are only three remedies against a final order. But MTD grounds, discussion; cont.
when judgment has already been entered, forget about those remedies. 1. That the court has no jurisdiction over the person of the
You are only left with two remedies, which are petition for relief from defendant
judgment and annulment of judgment. a. How does the court acquire jurisdiction over the person
of the defendant?
Remedies: i. Valid service of summons;
1. Rule 16 (MTD); ii. Voluntary appearance
2. Demurrer;
Remedial Law Review I – Civil Procedure
2. That the court has no jurisdiction over the subject matter of the 4. If the parties reside in different cities or
case municipalities except when they
a. What is the principle? voluntarily submit themselves in the
i. Jurisdiction is conferred by law except the proper forum and the barangay in which
jurisdiction of the Supreme Court, which is they reside is adjacent to each other.
conferred by the Constitution. So even if the parties reside in different
3. That venue is improperly laid cities or municipalities but they reside in
a. Under Rule 4 a barangay who is adjacent to each
4. That the plaintiff has no legal capacity to sue other there is still a need for barangay
a. Under Rule 3 on parties conciliation.
5. Litis pendentia 5. When parties avail any one of the
a. One suit for a single cause of action and joinder of provisional remedies
causes of action a. What are these provisional
6. That cause of action had been barred by prior judgment or the remedies? AIRRS
statute of limitations i. Preliminary Attachment
a. Sec. 47, Rule 39 ii. Preliminary Injunction
7. Unenforceability of claim pursuant to the statute of frauds iii. Receivership
a. Civil in nature iv. Replevin
8. That the claim has been paid, waived, abandoned, or otherwise v. Support pendente lite
extinguished 6. When party is arrested pursuant to Sec.
a. Obligations and contracts 5, Rule 113 or warrantless arrest
b. When is an obligation extinguished? b. When the case is between or among members of the
i. Payment, loss of the thing due, merger, immediate family
subrogation, novation, etc. i. Immediate family = up to 2 degree of
c. See affirmative defenses. consanguinity
9. Condition precedent 1. Vertical line = no limitation
a. Katarungang Pambaranggay Law 2. Horizontal line = up to brothers and
i. General Rule: All cases must pass through the sisters
barangay conciliation proceedings; otherwise it ii. However under Rule 3, we spoke of parties -
is a ground for dismissal on the ground of spouses
prematurity. 1. In-laws are included, because they
1. It is no longer jurisdictional. It is just a have to be impleaded as spouse/s.
matter of prematurity. The Court will c. Exhaustion of administrative remedies
merely archive the case until condition i. Exercise of primary jurisdiction
precedent has been complied with.
ii. Exceptions: If a MTD is granted, what happens? The case is dismissed. What is the
1. An action wherein one of the parties is a remedy? Appeal, because an order denying a motion to dismiss is a final
government instrumentality order – court has nothing left to do. If denied, what is your remedy? File
2. When a public officer is involved and an answer. When? Within the remaining balance of days for the period
the action involved his office of filing an answer from receipt of notice of denial, which must not be
3. Where one of the parties is a less than 5 days. When do we not apply the Neypes? Doctrine (fresh
corporation period rule)? Rules 12, 16 and 64. Example: If summons was duly
st th
served on 1 of the month, the defendant has until the 16 of the month
Remedial Law Review I – Civil Procedure
to file an answer; however, he filed a MTD on the 5 day. How many Section 2. Dismissal upon motion of plaintiff. — Except as provided in
days were consumed? 4 days. What is the balance of the period? 11 the preceding section, a complaint shall not be dismissed at the plaintiff's
days. MTD was denied, when should the defendant file an answer? instance save upon approval of the court and upon such terms and
Within 11 days from receipt of the notice of the denial of the motion to conditions as the court deems proper. If a counterclaim has been
dismiss (only the balance of the period but not less than 5 days). pleaded by a defendant prior to the service upon him of the plaintiffs
motion for dismissal, the dismissal shall be limited to the complaint. The
Rule 17 dismissal shall be without prejudice to the right of the defendant to
Dismissal of actions prosecute his counterclaim in a separate action unless within fifteen (15)
days from notice of the motion he manifests his preference to have his
Sec.1 notice of dismissal by plaintiff counterclaim resolved in the same action. Unless otherwise specified in
Section 1. Dismissal upon notice by plaintiff. — A complaint may be the order, a dismissal under this paragraph shall be without prejudice. A
dismissed by the plaintiff by filing a notice of dismissal at any time before class suit shall not be dismissed or compromised without the approval of
service of the answer or of a motion for summary judgment. Upon such the court. (2a)
notice being filed, the court shall issue an order confirming the dismissal.
Unless otherwise stated in the notice, the dismissal is without prejudice, A motion, not a notice, filed by the plaintiff on any ground. There is again
except that a notice operates as an adjudication upon the merits when a sanction if he filed the motion when answer has already been filed and
filed by a plaintiff who has once dismissed in a competent court an served upon him, which includes a counterclaim. What is the effect? The
action based on or including the same claim. (1a) counterclaim will not be dismissed. The dismissal is limited to the
original complaint. Why? Because there is already prejudice on the part
Who files the notice? Plaintiff. What are the grounds? No grounds. of the defendant, i.e. acquired services of counsel, paid acceptance fee,
Nobody will be prejudiced except the plaintiff. There is, however, a etc.
sanction to the plaintiff, which is the two-dismissal rule. What is the two-
dismissal rule? A situation where the plaintiff has twice dismissed a What happens now to the counterclaim? Defendant has two options: (1)
complaint without order of the court, and in such event, the dismissal will Defendant may file a separate action; and (2) Make a manifestation in
be a judgment on the merits. the trial court to continue the case as to the counterclaim. Is there any
qualification as to what kind of counterclaim? No. Does that not go
Example: A v B. A, plaintiff, files notice of dismissal on the ground against the basic doctrine that a compulsory counterclaim can only co-
improper venue. The court dismissed the case. He again filed another exist with a complaint; remove the complaint; the compulsory
claim against B. But then he found out that B is a (close friend of his counterclaim dies with it? What should be the proper interpretation of
friend), so he drops the case again. Will the two-dismissal rule apply? this rule? Irrespective of the kind of counterclaim, the counterclaim will
Yes. However, if one of the grounds is a jurisdictional matter, the two- not be dismissed. Within 15 days, if you don‘t want a separate action,
dismissal rule will not apply. For instance, (Patmig‘s example), one of you manifest before the trial court.
the grounds for filing a notice of dismissal is on the ground of lack of
jurisdiction over the subject matter. Sec. 3 defendant files motion/court motu propio dismisses the case
Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable
What is the requirement for the notice of dismissal to become effective? cause, the plaintiff fails to appear on the date of the presentation of his
There must be order of confirmation from the court. It is the order issued evidence in chief on the complaint, or to prosecute his action for an
by the court pursuant to Sec. 1, Rule 17 for the purpose of effecting the unreasonable length of time, or to comply with these Rules or any order
notice of dismissal. Without such order, the notice does not become of the court, the complaint may be dismissed upon motion of the
effective. Do not confuse this with another order of confirmation (of sale) defendant or upon the court's own motion, without prejudice to the right
under Rule 68 for the purpose of cutting the equity of redemption. of the defendant to prosecute his counterclaim in the same or in a
separate action. This dismissal shall have the effect of an adjudication
Sec. 2 motion by plaintiff upon the merits, unless otherwise declared by the court. (3a)
Remedial Law Review I – Civil Procedure
Under Rule 18, under mandatory requirement there is appearance of the
(8 grounds for a dismissal of a case motu propio) parties and counsels. What are the sanctions if any of the party does not
1. Summary procedure; appear? It depends. If it is the plaintiff, the action will be dismissed
2. Lack of jurisdiction (Sec.1, Rule 9) without prejudice, unless otherwise ordered by the court or in other
3. Litis pendentia (Sec.1, Rule 9) words, non-suited. If it is the defendant, it shall be cause to allow plaintiff
4. Res judicata (Sec.1, Rule 9) to present his evidence ex parte. Note that there is no more declaration
5. Prescription (Sec.1, Rule 9) here, ―as in default‖. But if the counsel is not present, but the party,
plaintiff or defendant, then the rule will not apply because it is the
Under this rule, there are three grounds: counsel who is not present. Unfortunately there is no sanction for
1. Failure of the plaintiff to appear upon the presentation of his lawyers under this rule. In criminal procedure, however, sanction is up to
evidence in chief; P20, 000 for private lawyers, and up to P5, 000 for government lawyers.
2. Failure of the plaintiff to prosecute his action for an
unreasonable length of time; Present rule:
3. Failure to comply with any order of the court. Rule on national mediation and conciliation proceedings before the
Philippine Mediation and Conciliation Office (amended Rule 18 and Rule
118); the term preliminary conference is not limited now to summary
Rule 18 procedure only. Even in the pre-trial, as amended, there is preliminary
Pre-trial conference. That preliminary conference is done before the branch clerk
of court. Identification of evidence, marking of evidence, stipulations and
Rule 18 must be read together with Rule 118 of criminal procedure. admissions – they are all done before the branch clerk of court. So when
the plaintiff sets pre-trial on a particular day, you go to court and 100%
What is a pre-trial? Trial before trial, LOL. Requirements? After the last pre-trial will not push through because you will be referred to Philippine
pleading has been served and filed, it shall be the duty of the plaintiff to Mediation and Conciliation Office, which is mandatory and cannot be
promptly move ex parte that the case be set for pre-trial. What is that waived. Within 30 days, you must find ways and means to settle. And
last pleading? Reply. this 30-day period is extendible to another 30 days, maximum of 60 days
for mediation and conciliation. What happens if there is settlement
When pre-trial is set, what happens? Presentation of documents and there? Mediator will simply draft compromise agreement, and when
names of witnesses; marking and identification of evidence parties are amenable, they will sign it, and they give it to the court which
will render judgment on compromise that is immediately executory. If
What don’t you find under Rule 18 that you find in Rule 118? Plea- there is no settlement before the mediation officer, then it is brought
bargaining. There is no plea-bargaining in civil cases, in criminal cases, back to the court for preliminary conference before the branch clerk of
plea-bargaining is mandatory or the court should at least ask whether court. And after the branch clerk of court has undertaken the preliminary
they will plea bargain. An application for being a state witness, is that conference, you go now to pre-trial proper before the judge. The judge
part of plea-bargaining? No. Because it is upon the discretion of the will now have to issue a pre-trial order. The pre-trial order is mandatory.
prosecution to recommend, although the final say is with the court. That Without a pre-trial and pre-trial order is a ground for disciplinary action
is not part of plea-bargaining because plea-bargaining is asking the against the judge, and pre-trial must be conducted. In criminal procedure
other party to accept your plea to a lower charge, e.g., murder to under Rule 121, lack of pre-trial is a ground for new trial.
homicide, and that is done during pre-trial.
Take note that when you plea bargain for the reduction or removal of Summary:
one of the accused from the charge sheet, it must always be by leave of 1. Mediation and conciliation with the PMCO;
court. a. 30 days, extendible for another 30 days
2. If settled
a. Mediation officer drafts compromise agreement;
Remedial Law Review I – Civil Procedure
b. Parties sign;
c. Submit to court; Rule 20, 21, 22 = READ!
d. Court issues judgment on compromise (immediately Take note of how to quash a subpoena and viatory (not sure about this)
executory). right under Sec. 10, Rule 21.
3. If not settled
a. Case brought back to court for preliminary conference Modes of discovery
before branch clerk; How many modes of discovery are there?
b. After PC before branch clerk, pre-trial proper before the I. Depositions pending action;
judge; II. Depositions before action;
c. Judge issues pre-trial order. III. Depositions pending appeal
IV. Depositions before appeal;
Rule 19 V. Interrogatories to parties;
Intervention VI. Request for admission by adverse party;
VII. Production of instruments;
Anonuevo v Intestate Estate of Jalandoni VIII. Production of documents
IX. Inspection of instrument;
Who is Anonuevo here? What kind of a party was he? He was the X. Inspection of documents;
intervenor. Under Rule 19 on intervention, what are the requirements? XI. Production and inspection of documents and things;
Must have legal interest in the matter in litigation, or interest in the XII. Physical examination;
success of the plaintiff, or interest in the success of the defendant. The XIII.Mental examination;
kind of pleading you are bound to file depends on whose interest you are XIV. Physical and mental examination
with – if you are with the plaintiff, you file a complaint in intervention; if The least understood of these modes of discovery is Rule 23.
you are with the defendant, you file an answer in intervention; if neither,
you file a complaint in intervention. Rule 23
Depositions pending action
Going back to the facts, Anonuevo and siblings filed an intervention in
the intestate proceedings. What was their claim? They claim that they People v Webb
have a share in the intestate estate because their grandmother was Judge Tolentino stopped the taking of depositions because there were
married to the deceased. What was their evidence? Birth certificate. The more than 150 documents already for resolution or as basis for
administrator of the estate contends that such was not sufficient judgment. Instead the accused wanted to take the deposition of 5 more
because the evidence necessary is a marriage contract, and they were persons in the US. Can the Judge do that under the rules of evidence?
able to establish that their grandmother was married to somebody else. The SC said yes. At any time at the course of the trial, the judge can
The issue is do the intervenors have interest in this case? The trial court stop the trial because the judge may say that there is more than enough
said yes. But on appeal with the CA, it reversed the RTC. The SC ruled evidence. But the more important issue is whether depositions are
that they do not have interest, as they were not able to establish that allowed in criminal cases. The SC ruled NO. It is not allowed. But some
they were grandchildren to Jalandoni, the deceased. justices dissented, particularly PUNO and DAVIDE, saying that while
depositions under Rule 23 are not allowed in criminal cases, they have
What was the doctrine in Yao v Perello? When can one intervene in a their equivalent in criminal cases, which can be found in Sec 12, 13, and
case, at what point in time – you can only intervene before the rendition 15 of Rule 119. This was illustrated in Vda. De Manguera v Risos. This
of judgment. After rendition of judgment, there is no more right to case was about a private complainant, who was from the Visayas, but
intervene. Exception: Pinlac v CA: intervenor was the government, in the she was confined at Makati Med, and she could not testify, so she asked
interest of substantial justice (intervention was already when case was for deposition taking. Was the deposition taking allowed? Yes. But upon
on motion for reconsideration with the Supreme Court) presentation of evidence, it was objected to on the ground that it is not
Remedial Law Review I – Civil Procedure
allowed in criminal cases. The SC ruled no deposition in criminal cases abroad. If within the country, anybody authorized to administer oath,
under Rule 23, but what should have been applied are Sec. 12, 13 and including a notary public.
15 of Rule 119 or advanced testimony.
Modes of taking a deposition:
Sec. 1 provides that depositions may be taken with or without leave of 1. Oral examination
court. When is it without leave of court? After answer has been served. a. Process:
When does it require leave of court? Before answer has been served or i. Give notice to all parties, to deposition officer,
after jurisdiction has been obtained over any defendant or over property and to prospective deponent
which is subject of the action. Why is it that once answer has been ii. Notice to consist of time, place, and name of
served, it must be made without leave of court, and before answer has deposition officer
been served, it must be made with leave of court? Issues are joined. iii. Once notified, they may or may not attend.
When issues are joined, why would you ask for leave of court when the Parties may waive right to attend.
questionnaire will be limited already to the issues involved? But if with iv. What happens? Like a trial = direct, cross, re-
leave of court, you may ask impertinent questions. direct, re-cross
1. All will be taken by stenographic notes
What kind of evidence are depositions? Testimonial evidence. We know v. The transcript sealed in an envelope and
from evidence that testimonies must be taken in open court, as a rule. transferred to the court.
Deposition is the exception as it is taken outside the court. When a 1. Whose evidence is that? No body‘s
deposition is taken, whose evidence is that? It will be the evidence of the evidence; merely forms part of the
party who chooses to offer it. Who offers the deposition? Any party. record of the case; anybody can use it.
Take note of Sec. 7 and 8. The fact that you cause the taking of the 2. Written interrogatories
deposition does not mean that the deposition is your evidence. It is only a. Process:
when somebody offers it. And any party can offer it. Who can cause the i. Questions are prepared beforehand = direct
taking of deposition? Any party. Whose deposition should be taken? Any examination questions
party or non-party, the deponent may be a party or non-party. The ii. The one who prepared to send to all parties
deposition is anybody‘s evidence until a party offers it. We all know that iii. Parties who receive it to prepare cross
evidence is not admissible until it is offered. examination questions and send it to the one
who prepared the direct
How does one take depositions? Let’s say C wants to take the iv. Then if there is re-direct, send again
deposition of X. Will it be with leave of court or without? When answer v. Then re-cross, if the party wishes to.
has been served, no need for leave of court; after answer have been b. Why is this allowed nonetheless though tedious?
served, with leave of court. What is the effect upon filing and service of i. Because what is encouraged is a combination
answer? Issues are joined. When issues are joined, why would you ask of both methods.
for leave of court when the questionnaire will be limited already to the
issues involved? But if with leave of court, you may ask impertinent Sec. 4, uses of deposition
questions. 1. Any deposition may be used to impeach the testimony of the
Before whom should the deposition be taken? Before a deposition a. Is it not that a deposition is testimonial evidence, why is
officer. But distinguish whether deposition will be taken within or outside it that you may use it to impeach that testimony of the
the country. If it is outside the country, deposition will be taken at the PH deponent?
embassy in that country before the consul or vice consul or any other i. If the deponent happens to be a witness also in
person authorized by the court through commission or letters rogatory open court, and his testimony in his deposition
for appointment of a judicial officer to take the deposition of somebody is contrary to what his testimony in open court.
Remedial Law Review I – Civil Procedure
2. It may be used for any purpose interrogatories. How would the court know or determine whether a party
3. Instances where you may avail of deposition under the following should be sanctioned for failure to serve written interrogatories? During
circumstances of par. C of Sec. 4, Rule 23. trial, when a witness/other party is asked a question that should have
been asked in written interrogatories.
Deposition v judicial affidavit
GR: Affidavits are hearsay.
EX: affidavits taken in lieu of direct testimony, subject to cross- Rule 26
examination, i.e., judicial affidavit Request for admission by adverse party

Mere submission of JA is not testimony yet. It must be authenticated. Who should request for admission? Any party may request for
admission. Aren’t there stipulations and admissions during pre-trial, why
Rule 24 would one request for admission? This applies when the party did not
Depositions before action or pending appeal wait for the pre-trial. Does this request for admission contradict Sec. 8,
Rule 8 as regards actionable documents which provides that when you
Why is this allowed, deposition pending appeal? This is because, at that do not specifically deny the claim of one party as against an action
time, appellate courts are not allowed to accept new evidence. Right document, you are deemed to have admitted the authenticity and due
now, with more reason that this is of great use because appellate courts execution of the document, why would one use this? No, there is no
are allowed to take new evidence. Another reason is in case of remand contradiction. Because the documents sought to be admitted under Rule
to the trial court. Whether you take the deposition before the lower court 26 are not actionable documents. They are only relevant and material
or appellate court, the deposition may come in handy in case of remand. documents, but they are not actionable. What are examples of these
non-actionable documents, which must be sought for admission?
What is perpetuation of testimony or deposition before action? This is Voluminous receipts, when such would take time to have each admitted
allowed because by the time you file a case, the person might already one by one.
be dead. This is in case a person dies before a probable case arises
against him. Rule 27
Production or inspection of documents or things
The taking of a deposition, is it real or personal? Personal. What then is
the venue? (trick question ni Sir kay Mica) The rule on venue will not Will exhumation of a cadaver fall under this rule? Yes, because
apply, because the rule itself provides for the venue of the taking of the cadavers are considered things. This is very common in criminal cases –
deposition before action or pending appeal = residence of the ocular inspection.
Rule 28
Rule 25 Physical and mental examination of persons
Interrogatories to parties
Available in actions where it is relevant
Is this pending action, before action or pending appeal? This is pending
action. You cannot avail of this against non-parties, solely against Example of relevant cases where this may be applied:
parties. 1. Annulment of contract by reason of imbecility of a contracting
Where is the sanction under this rule? Sec. 6. Failure to serve written 2. Common in paternity cases;
interrogatories. Who is being sanctioned? The one who failed to prepare
the questions/supposed to prepare the questions. As a result/sanction, Sec. 4 = waiver of privilege
the other party may not be compelled to testify on the matter of the
Remedial Law Review I – Civil Procedure
Section 4. Waiver of privilege. — By requesting and obtaining a report (1) Order of trial = not to be confused with the order of presentation
of the examination so ordered or by taking the deposition of the of evidence;
examiner, the party examined waives any privilege he may have in that (1) plaintiff‘s evidence;
action or any other involving the same controversy, regarding the (2) defendant‘s;
testimony of every other person who has examined or may thereafter (3) … so on.
examine him in respect of the same mental or physical examination. (4) (2) Absences
(1) When party is absent for no valid reason
Under privileged communication (Sec. 24, Rule 130) = doctor and (1) There is usually a penalty, but not strictly
patient; A v. B. A would like to have B examined by Dr. X; Between B imposed.
and Dr. X, there is privileged communication. Is that waived under this (2) They are however strict on postponement
rule? Yes. Because it is by order of the court. The results go to A as he (3) Valid ground for postponement = Unavailability
was the one who requested. B is not entitled to his own medical results. of evidence

Rule 29 Rule 31
Refusal to comply with the modes of discovery Severance and consolidation

Effects of refusal to comply with modes of discovery: Severance and consolidation are not opposites.
1. Compel to answer to the mode of discovery
2. Pay damages; Consolidation = consolidate cases provided there is a common question
3. Cite for contempt of court; of fact or law; commonality of parties/parties-of-interest; issue of
4. Arrest. jurisdiction = bars consolidation

Note that a judgment by default can never be issued without being Severance = look at joinder of causes of action;
preceded by an order of default. Exception = Sec. 3, par. c, Rule 29,
when there is a refusal to comply the modes of discovery, the court may Either join the causes of action or sever them.
issue a judgment by default without being preceded by an order of
default. Example: Case no. 1 = A v B, RTC MLA, Br. 1
Case no. 2 = B v A, Br. 2
Rule 30/119 Case no. 3 = A v B and C, RTC CAL, Br.1
Trial Case no. 4 = B v A and C, RTC QC, Br. 1
Can you consolidate them? Yes. However if there is a case pending
Rule 119 (more important rule) before, say, the MTC of Marikina, you cannot consolidate it, as there is
Principal issues under Rule 119: an issue of jurisdiction. But venue is not a bar to consolidation. What is a
1. Time frame = Trial must be completed within a period of 180 bar is the issue of jurisdiction.
days from the beginning or trial;
2. State witness rule; Rule 32
3. Rule akin to depositions (Sec. 12, 13, 15); Trial by commissioner
4. Demurrer;
5. Reopening (Sec. 24) There are instances where trial by commissioners is mandatory:
1. Rule 67, expropriation
Rule 30 a. Determination of just compensation = done by a
Principal issues under Rule 30: commissioner
2. Rule 69, Partition
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a. Determination of accounting = done by commissioner prosecution. This power to grant leave to the accused to file a demurrer
is addressed to the sound discretion of the trial court. The purpose is to
Court is bound to appoint 3 members of the commission with integrity determine whether the accused in filing his demurrer is merely stalling
and probity. the proceedings.

In all other instances, trial by commissioner is discretionary on the part Radiowealth v. Del Rosario: Applying Section 1 of the 1997 Rules of
of the court. If there are several accounts, or judge is not familiar with Court, the CA should have rendered judgment on the basis of the
issues, which require technical expertise, one may move for trial by evidence submitted by the petitioner. Since it had sufficient evidence on
commissioner. For instance, cases involving the Cybercrime law. record to decide the collection suit, the appellate court shall resolve the
case and render judgment on the merits, inasmuch as a demurrer aims
to discourage prolonged litigations. A remand for further proceedings is
RULE 33: DEMURRER TO EVIDENCE not necessary because the defendant, upon order of dismissal of the
demurrer to evidence, loses his right to present evidence.
What is the literal meaning ―to demur‖? It means to assail, to
question, to impugn. Cabador v. People: The RTC treated petitioner‘s motion to dismiss as a
demurrer to evidence and since he filed his motion without leave of
In a demurrer to evidence, what are you impugning? You are court, said court declared him to have waived his right to present
assailing the or plaintiff‘s (civil) or prosecution‘s (criminal) evidence on evidence in his defense. In criminal cases, a motion to dismiss may be
the ground that upon the facts and the law, the former has shown no filed on the ground of denial of the accused‘s right to speedy trial. This
right of relief. The defendant (civil) or accused (criminal) claims that the was the main thrust of Cabador‘s motion to dismiss. The fact is that he
evidence is insufficient. In other words, it does not reach the required did not even bother to do what is so fundamental in any demurrer. In
quantum of evidence. In criminal cases, it is proof beyond reasonable Enojas, Jr. v. COMELEC, the court held that to determine whether the
doubt; in civil cases, it is by preponderance. pleading filed is a demurrer to evidence or a motion to dismiss, the
following must be considered: (1) the allegations in it made in good faith;
What is overwhelming evidence? This is the highest quantum of (2) the stage of the proceeding at which it is filed; and (3) the primary
evidence. The lowest, on the other hand, is circumstantial evidence. objective of the party filing it. Besides, a demurrer to evidence assumes
that the prosecution has already rested its case. Here, the prosecution
In civil cases, demurrer to evidence is found under Rule 33. In criminal filed its formal offer of exhibits on the same day Cabador filed his motion
cases, it is found in Sec. 23, Rule 119. When you read the demurrer in to dismiss. Since Cabador filed his motion to dismiss before he could
civil, don‘t forget to read the demurrer in criminal. object to the prosecution‘s formal offer, before the trial court could act on
the offer, and before the prosecution could rest its case, it could not be
People v. Sumingwa: The order granting appellant‘s demurrer to said that he had intended his motion to dismiss to serve as a demurrer
evidence was a resolution of the case on the merits, and it amounted to to evidence. In sum, tested against the criteria laid down in Enojas, the
an acquittal. Any further prosecution of the accused after an acquittal Court finds that petitioner Cabador filed a motion to dismiss on the
would violate the proscription on double jeopardy. ground of violation of his right to speedy trial, not a demurrer to
evidence. He cannot be declared to have waived his right to present
Bernardo v. CA: Under the new rule on demurrer to evidence the evidence in his defense.
accused has the right to file a demurrer to evidence after the prosecution
has rested its case. If the accused obtained prior leave of court before Note: There is a difference between completion of the presentation of
filing his demurrer, he can still present evidence if his demurrer is evidence and resting your case. Completion does not amount to resting.
denied. However, if he demurs without prior leave of court, or after his There is only rest if the other party has filed its comment/opposition and
motion for leave is denied, he waives his right to present evidence and the court has ruled on the admissibility/inadmissibility of evidence.
submits the case for decision on the basis of the evidence for the Demurrer cannot be filed without offer of evidence.
Remedial Law Review I – Civil Procedure
How do you distinguish offer from proffer of evidence? XXX
• Denial: In civil cases, if the demurrer is denied, the defendant
When is the prosecution/plaintiff considered to have rested its presents evidence. In criminal cases, if the demurrer is denied,
case? You are only considered to have rested your case after the court you have to make a distinction: whether the demurrer was filed
has admitted your evidence. If you‘re going to trial, the rules on evidence with leave of court or without leave of court. If with leave of court,
says that the offer must be done orally unless the court allows you to the accused presents evidence. If without leave of court, the
offer it formally or in writing. In Cabador, the offer was in writing which is accused loses his right to present evidence.
(5) Because it is dismissal in civil cases, that is a final order;
Summary of Demurrer to Evidence therefore, it is appealable. Because it is acquittal in criminal cases,
therefore, it is not appealable -- otherwise, the accused will be placed
Demurrer to evidence in civil cases is based on Rule 33. In criminal in double jeopardy.
cases, you find it in Sec. 23, Rule 119.
(6) If it is appealed by the plaintiff who ordinarily will appeal it and
Similarities: A demurrer to evidence, whether it is civil or criminal: the appellate court reverses the order of dismissal, the defendant
XV. It is a kind of a motion to dismiss. loses his right to present evidence. In criminal cases, this is not
XVI. They are grounded on the same which is insufficiency of applicable precisely because there is no appeal -- the exception is
evidence. Hun Hyung Park v. Choi.
XVII. As to the time frame, it can only be filed after the
plaintiff/prosecution has rested its case.
Civil Cases Criminal Cases
Praenotanda: Even if it is a motion to dismiss which is a prohibited
pleading under the rules on summary procedure, the same is not true in leave of court is not required a demurrer is filed with or without
demurrer to evidence. Even if it is a kind of a motion to dismiss is NOT a before filing a demurrer leave of court
prohibited pleading in summary procedure. Hun Hyung Park v. Choi is
about violation of BP 22 which is governed by the rules on summary the order of dismissal is not
procedure says that a demurrer to evidence is not a prohibited pleading. if the demurrer is granted, the appealable because of the
The doctrine in that case is that, notwithstanding an acquittal, there was order of dismissal is appealable constitutional policy against
an appeal separating the civil from the criminal (a questionable doctrine double jeopardy
according to professor).

Differences: the accused may adduce his

(3) Even if they are grounded on the same which is insufficiency of evidence only if the demurrer is
if the demurrer is denied, the
evidence, the quantum of evidence differs. In civil cases, it is filed with leave of court; he
defendant may proceed to
preponderance of evidence while in criminal, it is proof beyond cannot present his evidence if he
present his evidence
reasonable doubt. Because of this, it is easier to avail of demurrer to filed the demurrer without leave of
evidence in criminal cases because the quantum of evidence is court
(4) In demurrer, the court may grant or deny it.
Note: Read this as against Rule 35 (Summary Judgments).
• Grant: If the court grants the demurrer in civil cases, that amounts
to dismissal of the case. In criminal cases, if the court grants a
demurrer, that amounts to acquittal.
Remedial Law Review I – Civil Procedure
Section 1. Judgment on the pleadings. — Where an answer fails to
tender an issue, or otherwise admits the material allegations of the The concept of a judgment on the pleadings will not apply when no
adverse party's pleading, the court may; on motion of that party, direct answer is filed. It will come into operation when an answer is served and
judgment on such pleading. However, in actions for declaration of nullity filed but the same fails to tender an issue or admits the material
or annulment of marriage or for legal separation, the material facts allegations of the adverse party‘s pleading.
alleged in the complaint shall always be proved.

Give at least three (3) distinctions between judgment on the RULE 35: SUMMARY JUDGMENTS
pleadings and summary judgment.
When may one file a motion for summary judgment? A summary
judgment, also called accelerated judgment, is proper where, upon a
Judgment on the Pleadings Summary Judgments motion filed after the issues had been joined and on the basis of the
pleadings and papers filed, the court finds that there is no genuine issue
proper where, upon a motion filed as to any material fact except as to the amount of damages. Even if
proper where an answer fails to after the issues had been joined there is an issue, summary judgment may still be availed of provided
tender an issue or otherwise and on the basis of the pleadings that issue is not a genuine issue. PBCom answers what a genuine issue
admits the material allegations of and papers filed, there is no is.
the adverse party‘s pleading genuine issue as to any material
fact Phil. Bank of Communications v. Go: Under the Rules, summary
judgment is appropriate when there are no genuine issues of fact which
3-day-notice before hearing 10-day-notice before hearing call for the presentation of evidence in a full-blown trial. Even if on their
face the pleadings appear to raise issues, when the affidavits,
depositions and admissions show that such issues are not genuine, then
basis of judgment: supporting summary judgment as prescribed by the Rules must ensue as a matter
affidavits, depositions, or of law. The determinative factor, therefore, in a motion for summary
admissions to recover upon a judgment, is the presence or absence of a genuine issue as to any
basis of judgment: pleadings
claim, counterclaim, or cross- material fact. A "genuine issue" is an issue of fact which requires the
claim, or to obtain declaratory presentation of evidence as distinguished from a sham, fictitious,
relief contrived or false claim. The party who moves for summary judgment
has the burden of demonstrating clearly the absence of any genuine
issue of fact, or that the issue posed in the complaint is patently
When is there judgment on the pleadings? Where an answer fails to unsubstantial so as not to constitute a genuine issue for trial. When the
tender an issue, or otherwise admits the material allegations of the facts as pleaded by the parties are disputed or contested, proceedings
adverse party‘s pleading. for summary judgment cannot take the place of trial.

Under Rule 6, when does an answer fail to tender an issue or

otherwise admits the material allegations [of the complaint]? An RULE 36: JUDGMENTS, FINAL ORDERS, AND ENTRY THEREOF
answer fails to tender an issue when the material allegations of the other
party are admitted or not specifically denied by the pleader. Under the Among the three (judgment, final order, and entry), what is the
rules, material allegations of the complaint not specifically denied are most important? It is the entry of judgment. The judgment spoken of is
deemed admitted. There are two (2) kinds of defenses under Rule 6: a judgment in all kinds of cases, whether it is civil or criminal. In criminal
negative defense and affirmative defense. A negative pregnant is cases, you find that in Rule 120. You also find this in Rule 51.
admitting what you seek to deny.

Remedial Law Review I – Civil Procedure

When you look at these rules, they have only one (1) specific What is a judgment on compromise? This is a judgment rendered by
characteristic of a judgment which is that it must be personally written the court on the basis of a compromise agreement entered into between
and directly prepared by the judge. the parties to the action. It has the effect of res judicata upon the parties.
But there will be no execution of the compromise agreement except in
For cultural information: In the CA, it needs to be unanimous. If it is compliance with a judicial compromise. The nature of this compromise is
not, there will be no valid judgment so what the presiding justice will do that it is immediately executory.
would be to create a special division which consists of five (5) justices
and a majority will render a valid judgment. The same goes for the What is a judgment nunc pro tunc? This literally means ―now for
Sandiganbayan. In the SC, when there are five (5) justices, a majority then.‖ This is a judgment intended to enter into the record acts which
vote will suffice. had already been done, but which do not yet appear in the record. Its
purpose is not to supply an omitted action by the court but to enter into
How do you distinguish several judgment from separate the record an action previously done but which was not reflected in the
judgments? A several judgment is one rendered by a court against record by reason of inadvertence or mistake. This is not really a
one or more defendants, but not against all, leaving the action to judgment but rather, a correction of judgment because it is either there
proceed against the others. It is proper when the liability of each party is was some formal, clerical, or typographical error or that it does not
clearly separable and distinct from that of his co-parties, such that the present the facts as it should have been presented.
claims against each of them could have been the subject of separate
suits, and judgment for or against one of them will not necessarily affect Conditional Judgment: A conditional judgment is one the effectivity of
the other. A separate judgment presupposes that there are several which depends upon the occurrence or the non-occurrence of an event.
claims for relief presented in a single action. Such a judgment is generally void because of the absence of a
• Several Judgment: different causes of action
• Separate Judgment: different parties Judgment sin perjuicio: A judgment sin perjuicio is traditionally
understood to be a brief judgment containing only the dispositive portion,
Section 4. Several judgments. — In an action against several without prejudice to the making of a more extensive discussion of the
defendants, the court may, when a several judgment is proper, render findings of fact and law to support it. This is not actually a final decision,
judgment against one or more of them, leaving the action to proceed should be avoided and should not be looked with favor.
against the others.
Judgment upon a confession (cognovit actionem): This is a
Section 5. Separate judgments. — When more than one claim for judgment rendered by the court when a party expressly agrees to the
relief is presented in an action, the court, at any stage, upon a other party‘s claim or acknowledges the validity of the claim against him.
determination of the issues material to a particular claim and all
counterclaims arising out of the transaction or occurrence which is the What is the literal meaning of the entry of judgment? It means that
subject matter of the claim, may render a separate judgment disposing the judgment is recorded in the book of entries. But what is important
of such claim. The judgment shall terminate the action with respect to here it not the actual recording but the date of entry.
the claim so disposed of and the action shall proceed as to the
remaining claims. In case a separate judgment is rendered the court by What is the date of entry? The date of finality of the judgment or final
order may stay its enforcement until the rendition of a subsequent order shall be deemed to be the date of its entry (Sec. 2, Rule 36). This
judgment or judgments and may prescribe such conditions as may be is fundamental. Not understanding this is fatal because entry is used in
necessary to secure the benefit thereof to the party in whose favor the many other provisions of the rules. Hence, while entry is the actual
judgment is rendered. recording of the judgment in the book of entries, what is important is the
date of entry of judgment. You find this also in Sec. 10, Rule 51 which

Remedial Law Review I – Civil Procedure

says that the date when the judgment or final resolution becomes
executory shall be deemed as the date of its entry. NEW TRIAL RECONSIDERATION
(5 grounds) (3 grounds)
• judgment was rendered July 1 5. the damages awarded are
• judgment became final and executory on July 16 1. FAME (fraud, accident, excessive
• clerk of court recorded the judgment July 31 mistake, excusable
: date of entry is July 16 negligence), which ordinary 6. the evidence is insufficient to
prudence could not have justify the decision or final
Why is this so? Because the finality of judgment cannot be made to guarded against and by reason order
depend on the will of the clerk of court who is in charge of recording said of which such aggrieved party
judgment in the book of entries. Otherwise, if the clerk of court is a friend has probably been impaired in 7. the decision or final order is
of a party litigant, he may be influenced to adjust the date favorable to his rights -- constitutes 4 contrary to law
his friend and thus affects the reckoning dates prescribed under the grounds
2. newly discovered evidence,
Examples: which he could not, with
• Under Rule 39, when may you execute a judgment as a matter of reasonable diligence, have
right? Sec. 1 says five (5) years from entry of judgment. discovered and produced at
• Under Rule 38, when are you supposed to file a petition for relief the trial, and which if presented
under Sec. 3? Within six (6) months from the date of entry. would probably alter the result

Note: FAME must be qualified. If you only say FAME, your answer is
RULE 37: NEW TRIAL OR RECONSIDERATION incomplete. You must state the qualifications (...which ordinary
prudence...). But never answer in abbreviation (F.A.M.E.). Spell it out!
These are two (2) of the remedies against a final judgment. Motion for
new trial and reconsideration are NOT MANDATORY. You can If you file a motion for new trial on the ground that the evidence is
immediately go to appeal. insufficient, should it be dismissed? No. The court may consider it as
a motion for reconsideration.
The 1997 Rules of Court specifically distinguishes the grounds from new
trial and reconsideration. If you file a motion for reconsideration on the ground of fraud,
should it be dismissed? No. The court may consider it as a motion for
new trial.

Reason: What counts is the allegation and not the title. Jurisprudence is
lenient on this matter. Before the 1997 Rules of Court, new trial and
reconsideration are anchored on the same grounds. But even now that
the grounds are distinct, an incorrect assignment does not result in the
dismissal of the case.

Mendezona v. Ozamis: Judge Durias‘ testimony cannot be considered

newly discovered evidence since the facts to be testified to were existing
Remedial Law Review I – Civil Procedure
before and during trial. The testimony had been in existence waiting only
to be elicited from him by questioning. • Intrinsic fraud refers to acts of a party in a litigation during the trial,
such as the use of forged instruments or perjured testimony, which did
Note: Equate newly discovered evidence with unavailability of evidence. not affect the presentation of the case, but did prevent a fair and just
If the evidence is available, it is not newly discovered evidence. You did determination of the case.
not exert enough effort to present that.
Example: Pre-trial is set for July 5. The adverse counsel calls you up
Padilla-Rumbaua v. Rumbaua: Blunders and mistakes in the conduct and told you not to attend the pre-trial anymore because he already filed
of the proceedings in the trial court as a result of the ignorance, a motion for resetting which you have not received yet because it was
inexperience or incompetence of counsel do not qualify as a ground for sent via registered mail. Then the next order that you found is that the
new trial. If such were to be admitted as valid reasons for re-opening case was dismissed because you were declared non-suited by non-
cases, there would never be an end to litigation so long as a new appearance during the trial (you are the plainitff).
counsel could be employed to allege and show that the prior counsel
had not been sufficiently diligent, experienced or learned. This will put a Accident: The ground of accident has the same concept as fraud. Any
premium on the willful and intentional commission of errors by counsel, kind of an event which is beyond your control can be used as accident.
with a view to securing new trials in the event of conviction, or an
adverse decision, as in the instant case. Mistake: This refers to mistake of fact. Exceptionally, it can be a mistake
of law depending on the party. If a party is unschooled in the rudiments
Note: As a matter of exception, if the errors of lawyers are so gross, then of law, he can be excused.
the court can consider a misadministration of justice.
Excusable Negligence: If it requires extraordinary diligence, that would
People v. Li Ka Kim: Appellant‘s passport could have easily been be excusable. Conversely, if it requires ordinary diligence, then it is not
presented and produced during the trial. Such presentation of excusable. It is already gross negligence. A failure to take the proper
appellant‘s passport, would hardly be material to the outcome of the steps at the proper time, not in consequence of a party‘s own
case. Appellant was positively identified by the prosecution witnesses as carelessness, inattention, or willful disregard of the process of the
being the perpetrator of the crime. Most importantly, appellant even unavoidable hindrance or accident, or on reliance on the care and
identified himself as Li Ka Kim at the trial and not as Huang Xiao Wei, vigilance of his counsel or on promises made by the adverse party.
that bolsters the conclusion that appellant deliberately concealed his true
identity in the nefarious enterprise. Analogy: If you are a young lady and you get pregnant out of wedlock,
that is excusable negligence. But if you were impregnated the second
What kind of fraud is referred to in a motion for new trial? It is time around, that is already gross. :)
extrinsic fraud as distinguished from intrinsic fraud. Fraud is
deceitfulness. Extrinsic fraud is that which is outside the proceedings, When do we use an affidavit of merits? An affidavit of merit is
outside the course of the trial, of which you do not have control. Intrinsic required in a motion for new trial founded on fraud, accident, mistake, or
fraud is within the proceeding. Suppose the lawyer, in the course of the excusable negligence. Under the Rules, the moving party must show
hearing, presents fraudulent documents. That is intrinsic fraud. If you do that he has a meritorious defense. The facts constituting the movant‘s
not contest it, you have waived your right to oppose it. Hence, it is good and substantial defense, which he may prove if the petition were
admitted. granted, must be shown in the affidavit which should accompany the
motion for a new trial.
• Extrinsic fraud refers to any fraudulent act of the prevailing party in
the litigation which is committed outside the trial of the case, where the If it is newly discovered evidence, there is no need for affidavit of merits
defeated party has been prevented from presenting fully his side of the because the rule provides that said evidence must be attached which
case, by fraud or deception practiced in him by his opponent. can either be object, testimonial, or documentary. Under Rule 8, if the
Remedial Law Review I – Civil Procedure
allegation is a matter of fraud, you have to allege it with particularity. deemed waived. A second motion for new trial, based on a ground not
You avail of affidavit of merits because the nature of the fraud as it was existing nor available when the first motion was made, may be filed
committed will be explained therein. within the time herein provided excluding the time during which the first
motion had been pending.
Demonstrative Evidence: If it is object evidence, you can take a picture
of it. If it is a person, you take his picture which must be not older than No party shall be allowed a second motion for reconsideration of a
six (6) months under criminal procedures. judgment or final order.

When is a party exempted from an affidavit of merits If a motion for new trial is granted, what is the effect? When the
notwithstanding that the ground for new trial is fraud, etc.? When in motion for new trial is granted, you only try matters which were
the very motion for new trial, you already stated what constituted fraud. questioned so that all the pieces of evidence which have already been
Under Rule 6, you must only allege ultimate facts. admitted, they remain to be admitted.
Note: Sec. 6, Rule 37 has been amended.
The motion for new trial may be either granted or denied. If it is
denied, what is your remedy? An order denying a motion for new trial Under Rule 10, when you amend the amended pleading, it supersedes
(or reconsideration) is not appealable, the remedy being an appeal from the original pleading. However, the admitted allegations in the original
the judgment or final order. (Sec. 9, Rule 37) When you appeal from the pleading, while they are no longer part of the record, they become
judgment, you have to assign as an error the denial of your motion for extrajudicial admissions which require offer.
new trial.
When you speak of trial de novo, you set aside everything as if nothing
Note: Effective 27 December 2007, an order denying a motion for new happened.
trial is no longer assailable by certiorari because of the amendment to
Rule 41 by A.M. No. 07-7-12-SC. Take note that in the amendatory circular of the Supreme Court (A.M.
07-7-12-SC), it deleted paragraph Sec. 2(a) of Rule 41.
Estinozo v. CA: Appeal and certiorari are mutually exclusive.

Can you file a second motion for reconsideration? No, because all RULE 38: RELIEF FROM JUDGMENTS, ORDERS, OR OTHER
the grounds were available when you filed the motion: insufficiency of PROCEEDINGS
evidence, excessive award of damages, and decision/final order is
contrary to law. Filing a second motion for reconsideration will violate the The remedies against an executory judgment are as follows:
rule on omnibus motion rule (Sec. 8, Rule 15). Under the ―single motion‖ 1. Rule 38
rule, a party shall not be allowed to file a second motion for 2. Rule 47
reconsideration of a judgment or a final order.
An executory judgment is necessarily final but a final judgment is not
Can you file a second motion for new trial? Yes, but only when a necessarily executory. (big circle: executory judgment/small circle: final
ground for new trial was not existing or available when the first motion judgment)
was made. Consequently, you can only file a second motion for new trial
on the ground of newly discovered evidence. While a second motion for True/False: Rule 38 is a petition so it must be separate and distinct from
reconsideration is not allowed, a second motion for new trial is the original case.
authorized by the Rules. A: False

Section 5. Second motion for new trial. — A motion for new trial shall Why? This is merely a continuation of the case.
include all grounds then available and those not so included shall be
Remedial Law Review I – Civil Procedure
Mesina v. Meer: A petition for relief from judgment is not an available As to the time frame, a petition for relief must be filed within (a) sixty (60)
remedy in the Court of Appeals. Hence, the petition should be filed in the days from knowledge of judgment, order, or other proceedings to be set
same case and in the same court under the same number (?). A petition aside; and (b) six (6) months from entry of such judgment, order, or
for relief is an equitable remedy; it is not a matter of right. So, this other proceeding. These two periods must concur.
remedy is not available when you did not avail of a motion for new trial
or even appeal when you had the time. Section 3. Time for filing petition; contents and verification. — A
petition provided for in either of the preceding sections of this Rule must
This is why the word ―petition‖ is a misnomer. The better term is be verified, filed within sixty (60) days after the petitioner learns of the
―motion.‖ judgment, final order, or other proceeding to be set aside, and not more
than six (6) months after such judgment or final order was entered, or
Why is it called ―petition‖ for relief? Because of the 1997 Rules of such proceeding was taken, and must be accompanied with affidavits
Court. Under the old rules, this was just a motion for relief. showing the fraud, accident, mistake, or excusable negligence relied
upon, and the facts constituting the petitioner's good and substantial
What are the two (2) kinds of relief? cause of action or defense, as the case may be.
1. Petition for relief from judgment, order, or other proceedings (Sec. 1)
2. Petition for relief from denial of appeal (Sec. 2) Note: As to date of entry, refer to Sec. 2, Rule 36.
When does a party come to know of the judgment? Ordinarily, it is
Section 1. Petition for relief from judgment, order, or other when he receives a copy of the judgment from the court. But the 60 days
proceedings. — When a judgment or final order is entered, or any other under this rule does not pertain to such but rather to the time a party
proceeding is thereafter taken against a party in any court through fraud, came to know of the judgment from sources other than the receipt of the
accident, mistake, or excusable negligence, he may file a petition in copy of the judgment.
such court and in the same case praying that the judgment, order or
proceeding be set aside. Otherwise stated, you come to know of the judgment upon receipt
thereof and when you receive a copy of the judgment, your remedy is
Section 2. Petition for relief from denial of appeal. — When a not petition for relief but rather, appeal, new trial, or reconsideration
judgment or final order is rendered by any court in a case, and a party because that is just a final judgment. This is executory judgment and the
thereto, by fraud, accident, mistake, or excusable negligence, has been 60-day period is counted from knowledge. It is only when you come to
prevented from taking an appeal, he may file a petition in such court and know of it from other sources other than receipt of the notice of the
in the same case praying that the appeal be given due course. judgment, that is where the 60-day period will start to operate.

You can still avail of a petition for relief if your appeal is denied. But you Example: The date of entry will be the first point of reference which let‘s
are now limited only to four (4) grounds which are fraud, accident, say is January 1. If you come to know of it on June 15, you only have up
mistake, excusable negligence which ordinary prudence could not have to June 30. If you come to know of it after June 30, you can no longer file
guarded against and by reason of which such aggrieved party has a petition for relief from judgment because the two (2) periods must be
probably been impaired in his rights. complied with.

Note: Sections 1 and 2 have the same grounds and with the same

Illustration: The court denied your notice of appeal because it was filed
out of time. You then file a petition for relief from denial of appeal on the
ground of fraud XXX
Remedial Law Review I – Civil Procedure

A judgment which has no entry yet cannot be executed. 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
General rule: Only the trial court can execute judgment. execution.

Exception: In the case of discretionary, it can be issued by the appellate b. Discretionary (Section 2) (or by leave of court or execution
court. pending appeal)

A. Kinds of Execution Which court has jurisdiction over discretionary execution? It depends.

Execution or satisfaction of judgment may either be by motion or action. Once appeal is perfected, does the court lose jurisdiction over the
Does that apply to any kind of execution, whether discretionary or matter subject matter? No. When does the court lose jurisdiction over the
of right? No. If execution is a matter of right, execution may be by motion subject matter? Upon expiration of the period to appeal, because there
or by action. However, if execution is a matter of right, execution can can be multiple defendants and the perfection of the appeal is only as to
only be by motion. Execution by action is not applicable anymore as those who appealed. Those who did not appeal, perfection will not apply
execution by action presupposes that there is already a final judgment. to them. ―Upon perfection of the appeal as to the appellants.‖ But as to
those who did not appeal, appeal will not be perfected.
Who is a redemptioner? Rule 39, Section 27(b) – A creditor having a lien
by virtue of an attachment, judgment or mortgage on the property sold, This is the basis for the discretionary execution. Discretionary execution
or on some part thereof, subsequent to the lien under which the property means there is in fact an appeal. If there is no more appeal, it is no
was sold. longer discretionary; it is a matter of right.

The judge has no other choice but to issue the writ of execution. What kind of jurisdiction does the trial court use? Residual jurisdiction.

In spite the fact that the issuance of a writ of execution is ministerial… What are the requirements for discretionary execution? (1) motion; (2)
the exercise of ministerial functions depends upon compliance with… It good reason; and (3) special order stating the good reason.
is only through a motion that a writ of execution may be issued.
Page 661 of Riano:
a. Matter of right/ministerial (Section 1)
(1) there must be a motion filed by the prevailing party with notice to
When it is already established that the judgment is executory, it must be the adverse party;
issued as a matter of right. (2) there must be a hearing of the motion for discretionary execution;
(3) the motion must be filed in the trial court while it has jurisdiction
Section 1. Execution upon judgments or final orders. — Execution over the case and is in possession of either the original record or on
shall issue as a matter of right, or motion, upon a judgment or order that the record on appeal;
disposes of the action or proceeding upon the expiration of the period to (4) there must be good reasons to justify the discretionary execution;
appeal therefrom if no appeal has been duly perfected. and
(5) the good reasons must be stated in a special order.
If the appeal has been duly perfected and finally resolved, the execution
may forthwith be applied for in the court of origin, on motion of the When there is execution pending appeal and the court grants the motion
judgment obligee, submitting therewith certified true copies of the for execution pending appeal, the judgment is satisfied. What happens if
judgment or judgments or final order or orders sought to be enforced on appeal, the judgment was reversed?
and of the entry thereof, with notice to the adverse party.
Remedial Law Review I – Civil Procedure
Illustration: A judgment for P1,000,000 was given. The defendant Certificate of Acceptance and Authority to Pay to enable LBRDC-PMGI
(loser, judgment obligor) appeals to the appellate court. The judgment to call on the SLC.
obligee files a motion for execution pending appeal. The court grants the
motion for execution pending appeal. The writ of execution is used, the The work on the project stopped due to the refusal of some of the
sheriff uses it and satisfies the P1,000,000 of A. What happens if the occupants to vacate the premises claiming that they have not been paid
judgment is reversed? their disturbance compensation. By then, PMGI had already
accomplished 78.27% of the contracted project equivalent to
There are certain judgments which are immediately executory. Name P10,957,800.00 of the total project cost of P14,000,000. PMGI
some: support, injunction, receivership, accounting. The enumeration in requested from petitioner for a deductive change order to enable it to
the Rule is not exclusive. For example, a judgment of compromise is collect the above-stated amount based on the 78.27% accomplishment
immediately executory. What is the rationale for the immediate execution of the project. Petitioner claimed that PMGI‘s accomplishment was only
of these? Delay will be prejudicial. 52.89% or equivalent only to P6,958,861.59 based on the
Accomplishment Report. Petitioner refused to pay since the mutually
Under Rule 61, even a judgment for support never becomes final. At any agreed price of P14,000,000 shall only be paid after the completion of
point in time you can go back to court and ask for amendment. How can the project and acceptance by it and since the project is not yet
it be immediately executory? The judgment will be illusory. This is complete, no payment can be paid. The problem on the payment of the
exactly what good reason is. affected occupant, which was the cause of the work stoppage, was
accordingly brought to the attention of the Sangguniang Panlungsod
What is good reason? Consists of circumstances that would justify the which authorized the payment of the affected occupants in the project
execution of the judgment. Otherwise, the same judgment would site.
become illusory. See Stronghold Insurance.
PMGI filed a complaint against petitioner for rescission of the MOA and
Stronghold Insurance vs Felix: This is a collection suit. Execution damages. After the filing of petitioner‘s Answer, a Motion for Partial
pending appeal was not allowed because the one who is sick is not a Summary Judgment was filed by PMGI which claimed that there was no
party to the case. Thus, the illness of the husband has nothing to do with genuine issue as to the fact of the obligation of the petitioner since it
the case (it doesn‘t involve conjugal property). This is unlike the case of admitted the accomplishment of 52.89% or equivalent to P6,958,861.59
Navarro vs Escobido-bidoooo. Second reason, the appeal was of PMGI and that the petitioner had not specifically denied under oath
meritorious. The subject matter subject to the execution was P57 million the genuineness of the Letter of Credit and MOA. An Opposition to the
and the claimed liability of Stronghold was only P12 million. That would Motion for Partial Summary Judgment was filed by petitioner. The trial
be injurious, not only prejudicial. Correlate with City of Iligan case as court granted the Motion for Partial Summary Judgment and ruled in
to summary judgment. favor of PMGI. Petitioner‘s MR was denied. Petitioner filed a Notice of
Appeal. PMGI filed a Motion for Execution Pending Appeal which
Although Stronghold describes what good reason is, it does not alleged that when the appeal is clearly dilatory, order for execution upon
necessarily follow that that is always the case. Good reason must be good reasons may be issued with the discretion of the court. The same
on a case-to-case basis. was granted over the opposition of the petitioner. CA affirmed.

City of Iligan vs Principal Management Group (PMGI): A MOA on a SC: The Order granting execution pending appeal was proper.
‗turn-key‘ arrangement was drawn by Mayor Quijano with Land Bank Executions pending appeal are governed by Section 2 of Rule 39 of the
Realty Development Corporation (LBRDC) as General Contractor and Rules of Court. There are 3 requisites for the execution of a judgment
PMGI as Developer - Financing Manager. The project to be undertaken pending appeal:
was the construction of a Sports Complex which upon completion shall a) a motion must be filed by the prevailing party with notice to the
be turned over to Iligan City for acceptance and the issuance of adverse party;
b) there must be good reasons for execution pending appeal; and
Remedial Law Review I – Civil Procedure
c) the good reasons must be stated in a special order. The petitioner and respondent were mayoral candidates in Balingoan,
Misamis Oriental for the May 14, 2001 elections. Respondent was
Execution pending appeal is, of course, the exception to the general declared mayor by the board of canvassers. Petitioner filed an election
rule. Normally, execution cannot be obtained until and unless protest, and the results were recounted. Petitioner was declared the
(a) the judgment has become final and executory; mayor by virtue of judgment.
(b) the right of appeal has been renounced or waived;
(c) the period for appeal has lapsed without an appeal having been filed; Petitioner filed a Motion for Execution pending appeal. Before the RTC
or could act on the motion, respondent filed a petition for certiorari with the
(d) having been filed, the appeal has been resolved and the records of COMELEC, as well as appealed the RTC‘s decision to the COMELEC.
the case have been returned to the court of origin -- in which case,
execution shall issue as a matter of right. COMELEC issued a Writ of Preliminary Injunction enjoining the RTC
from acting upon the Motion for execution by the petitioner, pending the
On the other hand, when the period of appeal has not yet expired, the case. The COMELEC found the RTC did not err and upheld its ruling.
execution of a judgment should not be allowed except if, in the court‘s Thus it lifted the writ of preliminary injunction, dismissed the petition by
discretion, there are good reasons therefor. These reasons must be the respondent, and directed the RTC to dispatch its judgment.
stated in a special order, because unless these are divulged, it will be
difficult to determine on appeal whether judicial discretion has been RTC granted the Motion for Execution pending appeal, and
properly exercised by the lower court. Good reasons consist of subsequently issued a Writ of Execution upon petitioner‘s posting of a
compelling circumstances that justify the immediate execution of a bond.
judgment, lest it become illusory; or the prevailing party be unable to
enjoy it after the lapse of time, considering the tactics of the adverse Petitioner took his oath of office. Respondent filed MR and supplemental
party who may have no recourse but to delay. petition praying the RTC order be nullified, and the grant of the writ of
execution be set aside.
The good reason relied upon by both the trial and the CA was that the
partial adjudication of the case was based on petitioner‘s own The COMELEC granted the respondent‘s petition and again enjoined
admission; hence, any appeal based on that point would be petitioner from exercising duties as mayor. COMELEC issued a
unmeritorious and merely dilatory. Indeed, both courts ruled that an resolution enjoining petitioner from assuming official functions of mayor
appeal by petitioner would only serve as ―a good and sufficient reason until final resolution of the election case pending appeal.
upon which to issue execution.‖
SC: The RTC should have granted the Writ of Execution upon the
The ascertainment of good reasons for execution pending appeal lies Motion for Execution pending appeal. It is within the RTC‘s discretion to
within the sound discretion of the trial court, and the appellate court will grant the motion for execution pending appeal. Shortness of period of
not normally disturb such finding. Intervention by the latter may be term of office, coupled with public interest and length of time the election
proper, if it is shown that there has been an abuse of discretion. Like the contest has been pending are the valid reasons for execution of
CA, we find no abuse of discretion in the trial court‘s grant of execution judgment pending appeal. Here, the case has been pending for almost 1
pending appeal. Indeed, a good and sufficient reason upon which to year, and the term of office was only for 3 years. To prolong the case
authorize immediate execution is when an appeal is clearly dilatory. would be to deprive the electorate of services of their mayor.

Santos vs COMELEC: The execution pending appeal was granted in The petition for certiorari assailed RTC‘s orders for the execution of its
this case. What was the good reason here? This is a political issue. If decision pending appeal. The grant of execution pending appeal was
there is no city official, the constituents in the community will not be well within the discretionary powers of the RTC. In order to obtain the
properly represented. annulment of said orders in a petition for certiorari, it must first be proved
that the trial court gravely abused its discretion. He should show not
Remedial Law Review I – Civil Procedure
merely a reversible error committed by the RTC, but a grave abuse of be turned into a pauper. Also, the husband filed an appeal. Although he
discretion amounting to lack or excess of jurisdiction. We find that no might not get a total reversal, perhaps the distribution might be unfair.
grave abuse of discretion was committed by the RTC. In its order
granting execution pending appeal, it held: RTC decided in a Civil Case, decreeing among others the legal
separation between petitioner Aida Bañez and respondent Gabriel
It is of judicial notice that for the public official elected last May 14, 2001 Bañez on the ground of the latter‘s sexual infidelity; xxx the surrender by
elections only a short period is left. Relative to this Court‘s jurisdiction respondent of the use and possession of a motor vehicle and the smaller
over the instant case, the settled rule that the mere filing of the notice of residential house to petitioner and the common children within 15 days
appeal does not divest the trial court of its jurisdiction over the case and from receipt of the decision.
to resolve pending incidents,i.e., motion for execution pending appeal
(Asmala vs. COMELEC, 289 SCRA 745) need not be overemphasized. Petitioner filed an urgent ex-parte motion to modify said decision, while
respondent filed a Notice of Appeal.
However, the COMELEC set aside the order, saying that shortness of
term alone is not a good reason for execution of a judgment pending RTC granted petitioner‘s urgent ex-parte motion to modify the decision.
appeal. We disagree.
In another motion to modify the decision, petitioner sought moral and
While it was indeed held that shortness of the remaining term of office exemplary damages, as well as litigation expenses. She filed a motion
and posting a bond are not good reasons, we clearly stated in Fermo v. for execution pending appeal. Respondent filed a consolidated written
COMELEC that: A valid exercise of the discretion to allow execution opposition to the 2 motions, and also prayed for the reconsideration of
pending appeal requires that it should be based ―upon good reasons to the previous order.
be stated in a special order.‖ The following constitute ―good reasons‖
and a combination of two or more of them will suffice to grant execution RTC denied Aida‘s motion for moral and exemplary damages and
pending appeal: (1.) public interest involved or will of the electorate; (2.) litigation expenses but gave due course to the execution pending
the shortness of the remaining portion of the term of the contested office; appeal. A writ of execution was issued to enforce the decision for (1)
and (3.) the length of time that the election contest has been pending. respondent to vacate the premises of the small residential house and for
(2) respondent to surrender the use and possession of said motor
The decision of the RTC was rendered on April 2, 2002, or after almost 1 vehicle to petitioner.
year of trial and revision of the questioned ballots. It found petitioner as
the candidate with the plurality of votes. Respondent appealed the said The petitioner was ordered to post a bond of P1,500,000 to answer for
decision to the COMELEC. In the meantime, the three-year term of the all the damages that respondent may suffer arising from the issuance of
Office of the Mayor continued to run. The will of the electorate, as said writ of execution pending appeal and to further answer for all the
determined by the RTC in the election protest, had to be respected and advances that petitioner may have received from the Special
given meaning. The Municipality needed the services of a mayor even Administrator in this case pending final termination of this present case.
while the election protest was pending, and it had to be the candidate
judicially determined to have been chosen by the people. In a petition for certiorari, respondent elevated the case to the CA. CA
set aside the RTC decision. The writ of execution and the Order granting
Bañes vs Bañes: The wife‘s motion for execution pending appeal was the motion filed by the sheriff to make symbolic delivery of the house
not proper. This is a case of legal separation between husband and wife. and motor vehicle to the administrator of the are SET ASIDE. CA denied
Judgment was rendered in favor of the wife finding the husband guilty. Aida‘s motion for reconsideration. Hence, the petition in G.R. No.
All the properties belonging to the conjugal property were awarded to the 132592, filed by herein petitioner.
wife including the 2 cars and the conjugal home. The wife asked for
execution pending appeal. There was no good reason. The husband will Petitioner manifested that she no longer questions the CA‘s decision on
the vehicle because respondent repossessed it. As to the residential
Remedial Law Review I – Civil Procedure
house, she claimed that being conjugal in nature, justice requires that Discretionary execution may only issue upon good reasons to be stated
she and her children be allowed to occupy and enjoy the house in a special order after due hearing.
considering that during the entire proceedings before RTC, she did not
have the chance to occupy it. Further, she posted a bond. For these (b) Execution of several, separate or partial judgments. — A several,
reasons, she asked for execution pending appeal. separate or partial judgment may be executed under the same terms
and conditions as execution of a judgment or final order pending appeal.
Respondent denied petitioner‘s allegation that she did not have the
chance to occupy the residential house. He averred that she could have, i. stay of discretionary execution (Section 3)
had she chosen to. According to him, as the inventory of the couple‘s
properties showed, petitioner owned 2 houses and lots and 2 motor Section 3. Stay of discretionary execution. — Discretionary execution
vehicles in the U.S., where she is a permanent resident. Respondent issued under the preceding section may be stayed upon approval by the
contended that there was no compelling reason for petitioner to have the proper court of a sufficient supersedeas bond filed by the party against
judgment executed pending appeal. whom it is directed, conditioned upon the performance of the judgment
or order allowed to be executed in case it shall be finally sustained in
SC: The execution of judgment pending appeal was not justified. As held whole or in part. The bond thus given may be proceeded against on
in Echaus vs. Court of Appeals, execution pending appeal is allowed motion with notice to the surety.
when superior circumstances demanding urgency outweigh the
damages that may result from the issuance of the writ. Otherwise, ii. judgments not stayed by appeal (Section 4)
instead of being an instrument of solicitude and justice, the writ may well
become a tool of oppression and inequity. The judgments are immediately executory in receivership, accounting,
compromise, injunction.
There is no superior or urgent circumstance that outweighs the damage
which respondent would suffer if he were ordered to vacate the house. Section 4. Judgments not stayed by appeal. — Judgments in actions
Petitioner did not refute respondent‘s allegations that she did not intend for injunction, receivership, accounting and support, and such other
to use said house, and that she has 2 other houses in the U.S. where judgments as are now or may hereafter be declared to be immediately
she is a permanent resident, while he had none at all. Merely putting up executory, shall be enforceable after their rendition and shall not, be
a bond is not sufficient reason to justify her plea for execution pending stayed by an appeal taken therefrom, unless otherwise ordered by the
appeal. To do so would make execution routinary, the rule rather than trial court. On appeal therefrom, the appellate court in its discretion may
the exception. make an order suspending, modifying, restoring or granting the
injunction, receivership, accounting, or award of support.
Section 2. Discretionary execution. —
The stay of execution shall be upon such terms as to bond or otherwise
(a) Execution of a judgment or final order pending appeal. — On as may be considered proper for the security or protection of the rights
motion of the prevailing party with notice to the adverse party filed in the of the adverse party.
trial court while it has jurisdiction over the case and is in possession of
either the original record or the record on appeal, as the case may be, at B. Modes of Execution
the time of the filing of such motion, said court may, in its discretion,
order execution of a judgment or final order even before the expiration of Section 6. Execution by motion or by independent action. — A final
the period to appeal. and executory judgment or order may be executed on motion within five
(5) years from the date of its entry. After the lapse of such time, and
After the trial court has lost jurisdiction the motion for execution pending before it is barred by the statute of limitations, a judgment may be
appeal may be filed in the appellate court. enforced by action. The revived judgment may also be enforced by

Remedial Law Review I – Civil Procedure

motion within five (5) years from the date of its entry and thereafter by obligor because the purchaser is not yet the owner. Once the title is
action before it is barred by the statute of limitations. consolidated, his rights over the property retroacts to the time of the
levy. What is the rationale behind that retroactivity?
When do you execute a judgment by motion? Within 5 years from the
date of entry of the final judgment. That‘s how important entry is. What is The levy is on January. It was only after the end of January of the
the date of entry of judgment? Date of finality of judgment. Contrary to following year that the title was consolidated. The rights of the purchaser
the literal meaning of entry of judgment, which is the recording of the rights to January of the previous year. Why? Because if there are
dispositive portion of the judgment in the book of entries, but the date of claimants or claims against that property, within that one year period, the
entry is not the date of recording but rather..?! Why? Otherwise, the purchaser has priority rights. First in time, first in right.
prescriptive period will depend on the Clerk of Court. To avoid that
possible abuse!
Judgment for P1,000,000. January 5, 1990 is the date of entry of
Within 5 years, it is a matter of right. Thereafter, it is by independent judgment. Until when can you execute the judgment by motion? January
action called revival of judgment. Aside from section 6, there is another 4, 1995. From January 5, 1995 until January 4, 2000, you can only
revival of judgment in the Rules of Court: section 34. Distinguish them! execute the judgment by independent action called revival of judgment.
Beyond January 4, 2000, how do you execute the original judgment for
Section 34. Recovery of price if sale not effective; revival of judgment. P1,000,000? You can no longer execute that judgment because of
— If the purchaser of real property sold on execution, or his successor in prescription of judgment.
interest, fails to recover the possession thereof, or is evicted therefrom,
in consequence of irregularities in the proceedings concerning the sale, Suppose on March 10, 1996, you revived the judgment, you have now a
or because the judgment has been reversed or set aside, or because the revived judgment. This judgment is totally separate and distinct from the
property sold was exempt from execution, or because a third person has original judgment, because it can happen that you have partially
vindicated his claim to the property, he may on motion in the same executed the original judgment of P1,000,000. There is no such thing as
action or in a separate action recover from the judgment obligee the alias writ of execution. This judgment must again be entered. It will not
price paid, with interest, or so much thereof as has not been delivered to be on March. Say it was entered on April 15, 1996 (date of entry of
the judgment obligor, or he may, on motion, have the original judgment revived judgment), within that period, count 5 years or up to April 14,
revived in his name for the whole price with interest, or so much thereof 2001 to execute that judgment by action again. And on and on without
as has been delivered to the judgment obligor. The judgment so revived limit until you fully satisfy the judgment.
shall have the same force and effect as an original judgment would have
as of the date of the revival and no more. 1. By motion (Section 6)
2. By independent action (Section 6)
Who revives under Section 34? The purchaser.
C. Manner of Execution
If you buy a property in an auction and you paid but you were not able to
get the property for one reason or another, let‘s say there was a third 1. when party is dead (Section 7)
party claim and the third party claimant won, you are prejudiced. What
should you do? Go after the judgment obligee because he got the Section 7. Execution in case of death of party. — In case of the death
money that was supposed to go to you. That is the revival of judgment of a party, execution may issue or be enforced in the following manner:
under Section 34.
(a) In case of the death of the judgment obligee, upon the
During the period of redemption, who has the property subject of application of his executor or administrator, or successor in interest;
redemption? The obligor. Suppose this properties are being utilized and on
they have civil fruits like rentals, to whom should the rentals go? To the
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Levy on 92
(b) In case of the death of the judgment obligor, against his execution
(b) Satisfaction by levy. — If the judgment obligor cannot pay all or part
executor or administrator or successor in interest, if the judgment be for of the obligation in cash, certified bank check or other mode of payment
the recovery of real or personal property, or the enforcement of a lien acceptable to the judgment obligee, the officer shall levy upon the
thereon; properties of the judgment obligor of every kind and nature whatsoever
which may be disposed, of for value and not otherwise exempt from
(c) In case of the death of the judgment obligor, after execution is execution giving the latter the option to immediately choose which
actually levied upon any of his property, the same may be sold for the property or part thereof may be levied upon, sufficient to satisfy the
satisfaction of the judgment obligation, and the officer making the sale judgment. If the judgment obligor does not exercise the option, the
shall account to the corresponding executor or administrator for any officer shall first levy on the personal properties, if any, and then on the
surplus in his hands. real properties if the personal properties are insufficient to answer for the
2. when judgment is for money (Section 9)
The sheriff shall sell only a sufficient portion of the personal or real
Section 9. Execution of judgments for money, how enforced. — property of the judgment obligor which has been levied upon.

(a) Immediate payment on demand. — The officer shall enforce an When there is more property of the judgment obligor than is sufficient to
execution of a judgment for money by demanding from the judgment satisfy the judgment and lawful fees, he must sell only so much of the
obligor the immediate payment of the full amount stated in the writ of personal or real property as is sufficient to satisfy the judgment and
execution and all lawful fees. The judgment obligor shall pay in cash, lawful fees.
certified bank check payable to the judgment obligee, or any other form
of payment acceptable to the latter, the amount of the judgment debt Real property, stocks, shares, debts, credits, and other personal
under proper receipt directly to the judgment obligee or his authorized property, or any interest in either real or personal property, may be
representative if present at the time of payment. The lawful fees shall be levied upon in like manner and with like effect as under a writ of
handed under proper receipt to the executing sheriff who shall turn over attachment.
the said amount within the same day to the clerk of court of the court
PAL v. Pal Employees
that issued the writ. (c) Garnishment of debts and credits. — The officer may levy on debts
due the judgment obligor and other credits, including bank deposits,
If the judgment obligee or his authorized representative is not present to financial interests, royalties, commissions and other personal property
receive payment, the judgment obligor shall deliver the aforesaid not capable of manual delivery in the possession or control of third
payment to the executing sheriff. The latter shall turn over all the parties. Levy shall be made by serving notice upon the person owing
amounts coming into his possession within the same day to the clerk of such debts or having in his possession or control such credits to which
court of the court that issued the writ, or if the same is not practicable, the judgment obligor is entitled. The garnishment shall cover only such
deposit said amounts to a fiduciary account in the nearest government amount as will satisfy the judgment and all lawful fees.
depository bank of the Regional Trial Court of the locality.
The garnishee shall make a written report to the court within five (5)
The clerk of said court shall thereafter arrange for the remittance of the days from service of the notice of garnishment stating whether or not the
deposit to the account of the court that issued the writ whose clerk of judgment obligor has sufficient funds or credits to satisfy the amount of
court shall then deliver said payment to the judgment obligee in the judgment. If not, the report shall state how much funds or credits the
satisfaction of the judgment. The excess, if any, shall be delivered to the garnishee holds for the judgment obligor. The garnished amount in cash,
judgment obligor while the lawful fees shall be retained by the clerk of or certified bank check issued in the name of the judgment obligee, shall
court for disposition as provided by law. In no case shall the executing be delivered directly to the judgment obligee within ten (10) working
sheriff demand that any payment by check be made payable to him. days from service of notice on said garnishee requiring such delivery,
except the lawful fees which shall be paid directly to the court.
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Garnishment of debts and credits. Garnishment is the fastest way.
In the event there are two or more garnishees holding deposits or credits The garnishee bank will immediately inform the court the amount of
sufficient to satisfy the judgment, the judgment obligor, if available, shall deposits. The garnishee will deliver to the court and the court will give
have the right to indicate the garnishee or garnishees who shall be that to the judgment obligor.
required to deliver the amount due, otherwise, the choice shall be made
by the judgment obligee. 3. when judgment is for specific act (Section 10)

The executing sheriff shall observe the same procedure under Section 10. Execution of judgments for specific act. —
paragraph (a) with respect to delivery of payment to the judgment
obligee. (a) Conveyance, delivery of deeds, or other specific acts; vesting title. —
If a judgment directs a party to execute a conveyance of land or
The first way to satisfy a judgment for money is by payment. personal property, or to deliver deeds or other documents, or to perform,
any other specific act in connection therewith, and the party fails to
The sheriff has the writ of execution and goes to the judgment obligor. comply within the time specified, the court may direct the act to be done
Here is a writ of execution for P1 million. Obligor gets P1,000,000 from at the cost of the disobedient party by some other person appointed by
his room and pays the sheriff. Is that valid? No. the court and the act when so done shall have like effect as if done by
the party. If real or personal property is situated within the Philippines,
In a judgment for money, payment is first. It must be given to the the court in lieu of directing a conveyance thereof may by an order divest
judgment obligee. PAL vs PALEA: payment was made to the sheriff the title of any party and vest it in others, which shall have the force and
and this was not considered satisfaction of judgment. It must be paid to effect of a conveyance executed in due form of law.
the judgment oblige.
(b) Sale of real or personal property. — If the judgment be for the sale of
With more reason if it is in check. If it is paid to the order of cash, you will real or personal property, to sell such property, describing it, and apply
not see the sheriff anymore. the proceeds in conformity with the judgment.

What about if the judgment obligor executes a promissory note? No, the (c) Delivery or restitution of real property. — The officer shall demand of
Rule does not allow promissory note but it (or any other form of the person against whom the judgment for the delivery or restitution of
payment) may be allowed if the judgment obligee accepts. real property is rendered and all persons claiming rights under him to
peaceably vacate the property within three (3) working days, and restore
Levy on execution. Distinguish this from levy on attachment (Rule 57) possession thereof to the judgment obligee, otherwise, the officer shall
and levy on foreclosure (Rule 68). Who supervises the levy? The oust all such persons therefrom with the assistance, if necessary, of
judgment obligor. Only in the absence of the judgment obligor will the appropriate peace officers, and employing such means as may be
sheriff take over. In actual practice, the obligor is an absentee obligor. reasonably necessary to retake possession, and place the judgment
obligee in possession of such property. Any costs, damages, rents or
Even real properties may be subject to levy. How? Go to the Register of profits awarded by the judgment shall be satisfied in the same manner
Deeds and have the title annotated (lien). If the judgment to be executed as a judgment for money.
is a Manila Court judgment and you levy on properties in Baguio, do you
go to Baguio? Yes, you can levy on any property in the Philippines. (d) Removal of improvements on property subject of execution. — When
the property subject of the execution contains improvements constructed
They are now in custodia legis (in the custody of the law). It is kept for or planted by the judgment obligor or his agent, the officer shall not
future auction. destroy, demolish or remove said improvements except upon special
order of the court, issued upon motion of the judgment obligee after the
hearing and after the former has failed to remove the same within a
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reasonable time fixed by the court. expressly provided by law, the following property, and no other, shall be
exempt from execution:
(e) Delivery of personal property. — In judgment for the delivery of
personal property, the officer shall take possession of the same and (a) The judgment obligor's family home as provided by law, or the
forthwith deliver it to the party entitled thereto and satisfy any judgment homestead in which he resides, and land necessarily used in connection
for money as therein provided. therewith;
(b) Ordinary tools and implements personally used by him in his trade,
4. when it is a special judgment (Section 11) employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of
There are several kinds of execution: judgment for money, judgment for burden, such as the judgment obligor may select necessarily used by
delivery and special judgment. What is a special judgment? One which him in his ordinary occupation;
only the judgment obligor can accomplish. For other judgments, if the (d) His necessary clothing and articles for ordinary personal use,
obligor cannot comply, the court can assign someone else to comply at excluding jewelry;
the expense of the judgment obligor. Delivery of property is not a special (e) Household furniture and utensils necessary for housekeeping, and
judgment. If the obligor does not want to deliver the property, he can ask used for that purpose by the judgment obligor and his family, such as the
someone to deliver it at his expense. Example: A famous painter tasked judgment obligor may select, of a value not exceeding one hundred
to paint. The court can punish him and send him to jail. Is that a harsh thousand pesos;
and unconstitutional penalty? No, he had the keys to the jail in his (f) Provisions for individual or family use sufficient for four months;
pockets. Comply, get out of jail; don‘t comply, remain in jail. (g) The professional libraries and equipment of judges, lawyers,
physicians, pharmacists, dentists, engineers, surveyors, clergymen,
Section 11. Execution of special judgments. — When a judgment teachers, and other professionals, not exceeding three hundred
requires the performance of any act other than those mentioned in the thousand pesos in value;
two preceding sections, a certified copy of the judgment shall be (h) One fishing boat and accessories not exceeding the total value of
attached to the writ of execution and shall be served by the officer upon one hundred thousand pesos owned by a fisherman and by the lawful
the party against whom the same is rendered, or upon any other person use of which he earns his livelihood;
required thereby, or by law, to obey the same, and such party or person (i) So much of the salaries, wages, or earnings of the judgment obligor
may be punished for contempt if he disobeys such judgment. for his personal services within the four months preceding the levy as
are necessary for the support of his family;
D. Properties exempt from execution (Section 13) (j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities accruing or in any manner
13 items under section 13  growing out of any life insurance;
(l) The right to receive legal support, or money or property obtained as
Spouses A and B borrow money in millions from a bank. This is secured such support, or any pension or gratuity from the Government;
by the home of the spouses. They are not able to pay. Is the family (m) Properties specially exempted by law.
home exempt from execution? No. Since the security is the conjugal
home, then it is no longer exempt from execution pursuant to the last But no article or species of property mentioned in this section shall
paragraph of Section 13. be exempt from execution issued upon a judgment recovered for
its price or upon a judgment of foreclosure of a mortgage thereon.
Salaries and wages: wages are absolutely exempt from execution.
Salaries are not necessarily exempt (if salary is too big, it is not exempt). D’Armoured Security and Investigation Agency vs Orpia: The sheriff
You don‘t deprive an individual of living or survival. tried to levy on guns and ammunitions of the security agency. The
security agency objected because these tools and implements that the
Section 13. Property exempt from execution. — Except as otherwise security guards use are exempt from execution because these are used
Remedial Law Review I – Civil Procedure
in their livelihood. SC: Tools and implements referred to are the tools persons and not to juridical entities. CA correctly ruled that petitioner,
and implements of a working man, not of corporate entities. You don‘t being a corporate entity, does not fall within the exemption, thus:
deprive a working man of his living. Corporations don‘t have tools and
implements. Section 13 of Rule 39 of the Rules of Court is plain and clear on what
properties are exempt from execution. Section 13 (i) of the Rules
Respondents, who were employed as security guards by petitioner, and pertinently reads:
assigned to Fortune Tobacco, Inc., filed with the Labor Arbiter a
complaint for illegal dismissal and various monetary claims against ‗SECTION 13. Property exempt from execution. – Except as otherwise
petitioner and Fortune Tobacco. LA rendered a Decision stating that all expressly provided by law, the following property, and no other, shall be
the respondents except Antonio Cabangon Chua are entitled to exempt from execution:
P1,077,124.29 for underpayment, overtime pay, legal holiday pay,
service incentive leave pay, 13th month pay, illegal deduction and refund xxx xxx xxx
of firearms bond.
(i) So much of the salaries, wages or earnings of the judgment obligor
From the said Decision, Fortune Tobacco interposed an appeal to the for his personal services within the four months preceding the levy as
NLRC. Petitioner did not appeal. NLRC dismissed the complaint against are necessary for the support of his family.‘
Fortune Tobacco. This Decision became final and executory. Thus, the
award specified in the Decision of the Arbiter became the sole liability of The exemption under this procedural rule should be read in conjunction
petitioner. with the Civil Code, the substantive law which proscribes the execution
of employee‘s wages, thus: ‗ART. 1708. The laborer‘s wage shall not be
Upon respondents‘ motion, the Arbiter issued a writ of execution. The subject to execution or attachment, except for debts incurred for food,
sheriff served a writ of garnishment upon the Chief Accountant of shelter, clothing and medical attendance.‘
Foremost Farms, Inc., a corporation with whom petitioner has an
existing services agreement. Thus, petitioner‘s receivables with Obviously, the exemption under Rule 39 of the Rules of Court and
Foremost were garnished. Article 1708 of the New Civil Code is meant to favor only laboring men or
women whose works are manual. Persons belonging to this class
Petitioner filed with the NLRC a ―Motion to Quash/Recall Writ of usually look to the reward of a day‘s labor for immediate or present
Execution and Garnishment‖ which was opposed by respondents. The support, and such persons are more in need of the exemption than any
Arbiter issued an Order denying the motion and directing the sheriff to other [Gaa vs. Court of Appeals].
release the garnished sum of money to respondents pro rata.
Petitioner‘s MR was denied, hence, it interposed an appeal to the NLRC. In this context, exemptions under this rule are confined only to natural
The NLRC dismissed the appeal for petitioner‘s failure to post a bond persons and not to juridical entities such as petitioner. Thus, the rule
within the reglementary period. Its MR was denied. Petitioner filed with speaks of salaries, wages and earning from the ‗personal services‘
the CA a petition for certiorari and prohibition with prayer for issuance of rendered by the judgment obligor. The rule further requires that such
a writ of preliminary injunction. CA dismissed the petition. Hence, this earnings be intended for the support of the judgment debtor‘s family.
petition for review on certiorari.
Necessarily, petitioner which is a corporate entity, does not fall under the
SC: The garnished amount is not exempt from execution. exemption. If at all, the exemption refers to petitioner‘s individual
employees and not to petitioner as a corporation.
No. The Rule clearly enumerates what properties are exempt from x x x. Parenthetically, in a parallel case where a security agency
execution. It is apparent that the exemption pertains only to natural claimed that the guns it gives to its guards are tools and implements

Remedial Law Review I – Civil Procedure

exempt from execution, the SC ruled that the exemption pertains only to When the writ of execution is issued in favor of the Republic of the
natural and not to juridical persons, thus: Philippines, or any officer duly representing it, the filing of such bond
shall not be required, and in case the sheriff or levying officer is sued for
‗However, it would appear that the exemption contemplated by the damages as a result of the levy, he shall be represented by the Solicitor
provision involved is personal, available only to a natural person, such General and if held liable therefor, the actual damages adjudged by the
as a dentist‘s dental chair and electric fan (Belen v. de Leon). As court shall be paid by the National Treasurer out of such funds as may
pointed out by the Solicitor General, if properties used in business are be appropriated for the purpose.
exempt from execution, there can hardly be an instance when a
judgment claim can be enforced against the business entity‘ [Pentagon Rule 57, Section 14. Proceedings where property claimed by third
Security and Investigation Agency vs. Jimenez]. person. — If the property attached is claimed by any person other than
the party against whom attachment had been issued or his agent, and
It stands to reason that only natural persons whose salaries, wages and such person makes an affidavit of his title thereto, or right to the
earnings are indispensable for his own and that of his family‘s support possession thereof, stating the grounds of such right or title, and serves
are exempted under Section 13 (i) of Rule 39 of the Rules of Court. such affidavit upon the sheriff while the latter has possession of the
attached property, and a copy thereof upon the attaching party, the
E. Third Party Claim (Section 16) sheriff shall not be bound to keep the property under attachment, unless
the attaching party or his agent, on demand of the sheriff, shall file a
Rule 39, Section 16. Proceedings where property claimed by third bond approved by the court to indemnify the third-party claimant in a
person. — If the property levied on is claimed by any person other than sum not less than the value of the property levied upon. In case of
the judgment obligor or his agent, and such person makes an affidavit of disagreement as to such value, the same shall be decided by the court
his title thereto or right to the possession thereof, stating the grounds of issuing the writ of attachment. No claim for damages for the taking or
such right or title, and serves the same upon the officer making the levy keeping of the property may be enforced against the bond unless the
and copy thereof, stating the grounds of such right or tittle, and a serves action therefor is filed within one hundred twenty (120) days from the
the same upon the officer making the levy and a copy thereof upon the date of the filing of the bond.
judgment obligee, the officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the officer, files a bond The sheriff shall not be liable for damages for the taking or keeping of
approved by the court to indemnity the third-party claimant in a sum not such property to any such third-party claimant, if such bond shall be
less than the value of the property levied on. In case of disagreement as filed. Nothing herein contained shall prevent such claimant or any third
to such value, the same shall be determined by the court issuing the writ person from vindicating his claim to the property, or prevent the
of execution. No claim for damages for the taking or keeping of the attaching party from claiming damages against a third-party claimant
property may be enforced against the bond unless the action therefor is who filed a frivolous or plainly spurious claim, in the same or a separate
filed within one hundred twenty (120) days from the date of the filing of action.
the bond.
When the writ of attachment is issued in favor of the Republic of the
The officer shall not be liable for damages for the taking or keeping of Philippines, or any officer duly representing it, the filing of such bond
the property, to any third-party claimant if such bond is filed. Nothing shall not be required, and in case the sheriff is sued for damages as a
herein contained shall prevent such claimant or any third person from result of the attachment, he shall be represented by the Solicitor
vindicating his claim to the property in a separate action, or prevent the General, and if held liable therefor, the actual damages adjudged by the
judgment obligee from claiming damages in the same or a separate court shall be paid by the National Treasurer out of the funds to be
action against a third-party claimant who filed a frivolous or plainly appropriated for the purpose.
spurious claim.
Rule 60, Section 7. Proceedings where property claimed by third
person. — If the property taken is claimed by any person other than the
Remedial Law Review I – Civil Procedure
party against whom the writ of replevin had been issued or his agent, A vs B. Judgment was rendered in favor of A. A could not pay, so sheriff
and such person makes an affidavit of his title thereto, or right to the levied on the property of B. The properties of B were taken in legal
possession thereof, stating the grounds therefor, and serves such custody by the sheriff. X, not a party to the case, executes an affidavit,
affidavit upon the sheriff while the latter has possession of the property which is his third party claim. X will give the affidavit to the sheriff. The
and a copy thereof upon the applicant, the sheriff shall not be bound to sheriff will give the affidavit of third party claim to A. It is not the third
keep the property under replevin or deliver it to the applicant unless the party claimant that posts the bond. Upon receipt of the third party claim,
applicant or his agent, on demand of said sheriff, shall file a bond the judgment obligee, he will post the bond. This holds true in Rule 57
approved by the court to indemnify the third-party claimant in a sum not (attaching creditor) as well as in Rule 60 (applicant).
less than the value of the property under replevin as provided in section
2 hereof. In case of disagreement as to such value, the court shall The judgment obligee posts a bond equivalent to the value of the
determine the same. No claim for damages for the taking or keeping, of property. What is that bond for?
the property may be enforced against the bond unless the action
therefor is filed within one hundred twenty (120) days from the date of What happens if the judgment obligee does not post a bond? The sheriff
the filing of the bond. will deliver the property to the third party claimant.

The sheriff shall not be liable for damages, for the taking or keeping of It has the same provision in attachment and replevin. More so in replevin
such property, to any such third-party claimant if such bond shall be where the sale of personal property is quickly processed.
filed. Nothing herein contained shall prevent such claimant or any third
person from vindicating his claim to the property, or prevent the If the judgment obligee posts a bond equivalent to the value of the
applicant from claiming damages against a third-party claimant who filed property, subject of the third party claim, the sheriff keeps the property
a frivolous or plainly spurious claim, in the same or a separate action. for auction sale.

When the writ of replevin is issued in favor of the Republic of the What is the remedy of the judgment obligee against a frivolous third
Philippines, or any officer duly representing it, the filing of such bond party claim? File a claim for damages in the same action or in a separate
shall not be required, and in case the sheriff is sued for damages as a action.
result of the replevin, he shall be represented by the Solicitor General,
and if held liable therefor, the actual damages adjudged by the court When should the sheriff auction the property? Between the hours of 9 in
shall be paid by the National Treasurer out of the funds to be the morning up to 2 in the afternoon. Where should it be? Where the
appropriated for the purpose. properties are located. As to personal properties, the properties where
they may be found.
Section 16 of Rule 39 (execution), Section 14 of Rule 57 (attachment)
and Section 7 of Rule 60 (replevin) – same formulation During auction, who may purchase the property? Anybody; that‘s open
to the public. May the judgment obligee be the purchaser? Yes, that is
How do you distinguish a third party claim from a third party complaint usually the case. How much does he have to pay? If he bids less than
(under Rule 6; kinds of pleadings)? the judgment debt, he does not have to pay. If he bids more than the
judgment debt, he has to pay.
Illustrate a third party claim: The property of a judgment obligor has
already been levied and has been taken in actual custody by the sheriff. Exception: the purchaser will have to pay even if he bids within the
rd rd
X who is a 3 party files an affidavit of 3 party claim gives it to the judgment debt when there is a third party claim. Why? A case may crop
sheriff. Sheriff gives it to the judgment obligee who will subsequently file up between the third party claimant (saying the property to be auctioned
a bond. is his) and judgment obligee. If that happens and the third party claimant
wins, the judgment obligor will have to pay twice. That‘s not fair!

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F. Execution Sale (Sections 17-26) manual delivery, the sale shall be held in the place where the property is
When the auction begins, there must first be a notice under Section 15.
The 2 other requirements are posting and publication. Notice is an absolute requirement.

Section 15. Notice of sale of property on execution. — Before the sale Posting is discretionary as to the period.
of property on execution, notice thereof must be given as follows:
Publication is necessary only in cases of real property where the fair
(a) In case of perishable property, by posting written notice of the market value is at least P50,000. It must be published once a week for 2
time and place of the sale in three (3) public places, preferably in consecutive weeks in a newspaper of general circulation.
conspicuous areas of the municipal or city hall, post office and public
market in the municipality or city where the sale is to take place, for such What is a newspaper of general circulation? According to Pinlac vs CA,
time as may be reasonable, considering the character and condition of (1) there must be fixed paying subscribers; (2) issuing at least 500
the property; copies; and (3) must be published regularly.

(b) In case of other personal property, by posting a similar notice in Under Rule 103 and 108, as to change of name and correction of
the three (3) public places above-mentioned for not less than five (5) entries, the requirement is newspaper of national circulation.
Section 17. Penalty for selling without notice, or removing or defacing
(c) In case of real property, by posting for twenty (20) days in the notice. — An officer selling without the notice prescribed by section 15 of
three (3) public places abovementioned a similar notice particularly this Rule shall be liable to pay punitive damages in the amount of five
describing the property and stating where the property is to be sold, and thousand (P5,000.00) pesos to any person injured thereby, in addition to
if the assessed value of the property exceeds fifty thousand his actual damages, both to be recovered by motion in the same action;
(P50,000.00) pesos, by publishing a copy of the notice once a week for and a person willfully removing or defacing the notice posted, if done
two (2) consecutive weeks in one newspaper selected by raffle, whether before the sale, or before the satisfaction of the judgment if it be satisfied
in English, Filipino, or any major regional language published, edited and before the sale, shall be liable to pay five thousand (P5,000.00) pesos to
circulated or, in the absence thereof, having general circulation in the any person injured by reason thereof, in addition to his actual damages,
province or city; to be recovered by motion in the same action.

(d) In all cases, written notice of the sale shall be given to the Section 18. No sale if judgment and costs paid. — At any time before
judgment obligor, at least three (3) days before the sale, except as the sale of property on execution, the judgment obligor may prevent the
provided in paragraph (a) hereof where notice shall be given the same sale by paying the amount required by the execution and the costs that
manner as personal service of pleadings and other papers as provided have been incurred therein.
by section 6 of Rule 13.
Section 19. How property sold on execution; who may direct manner
The notice shall specify the place, date and exact time of the sale which and order of sale. — All sales of property under execution must be made
should not be earlier than nine o'clock in the morning and not later than at public auction, to the highest bidder, to start at the exact time fixed in
two o'clock in the afternoon. The place of the sale may be agreed upon the notice. After sufficient property has been sold to satisfy the
by the parties. In the absence of such agreement, the sale of the execution, no more shall be sold and any excess property or proceeds of
property or personal property not capable of manual delivery shall be the sale shall be promptly delivered to the judgment obligor or his
held in the office of the clerk of court of the Regional Trial Court or the authorized representative, unless otherwise directed by the judgment or
Municipal Trial Court which issued the writ of or which was designated order of the court. When the sale is of real property, consisting of several
by the appellate court. In the case of personal property capable of known lots, they must be sold separately; or, when a portion of such real
Remedial Law Review I – Civil Procedure
property is claimed by a third person, he may require it to be sold Section 24. Conveyance to purchaser of personal property not capable
separately. When the sale is of personal property capable of manual of manual delivery. — When the purchaser of any personal property, not
delivery, it must be sold within view of those attending the same and in capable of manual delivery, pays the purchase price, the officer making
such parcels as are likely to bring the highest price. The judgment the sale must execute and deliver to the purchaser a certificate of sale.
obligor, if present at the sale, may direct the order in which property, real Such certificate conveys to the purchaser all the rights which the
or personal shall be sold, when such property consists of several known judgment obligor had in such property as of the date of the levy on
lots or parcels which can be sold to advantage separately. Neither the execution or preliminary attachment.
officer conducting the execution sale, nor his deputies, can become a
purchaser, nor be interested directly or indirectly in any purchase at such Section 25. Conveyance of real property; certificate thereof given to
sale. purchaser and filed with registry of deeds. — Upon a sale of real
property, the officer must give to the purchaser a certificate of sale
Section 20. Refusal of purchaser to pay. — If a purchaser refuses to containing:
pay the amount bid by him for property struck off to him at a sale under
execution, the officer may again sell the property to the highest bidder (a) A particular description of the real property sold;
and shall not be responsible for any loss occasioned thereby; but the (b) The price paid for each distinct lot or parcel;
court may order the refusing purchaser to pay into the court the amount (c) The whole price paid by him;
of such loss, with costs, and may punish him for contempt if he disobeys (d) A statement that the right of redemption expires one (1) year from the
the order. The amount of such payment shall be for the benefit of the date of the registration of the certificate of sale.
person entitled to the proceeds of the execution, unless the execution
has been fully satisfied, in which event such proceeds shall be for the Such certificate must be registered in the registry of deeds of the place
benefit of the judgment obligor. The officer may thereafter reject any where the property is situated.
subsequent bid of such purchaser who refuses to pay.
Section 26. Certificate of sale where property claimed by third person.
Section 21. Judgment obligee as purchaser. — When the purchaser is — When a property sold by virtue of a writ of execution has been
the judgment obligee, and no third-party claim has been filed, he need claimed by a third person, the certificate of sale to be issued by the
not pay the amount of the bid if it does not exceed the amount of his sheriff pursuant to sections 23, 24 and 25 of this Rule shall make
judgment. If it does, he shall pay only the excess. express mention of the existence of such third-party claim.

Section 22. Adjournment of sale. — By written consent of the judgment G. Redemption

obligor and obligee, or their duly authorized representatives, the officer
may adjourn the sale to any date and time agreed upon by them. Here, the properties are already sold to the public. When does the
Without such agreement, he may adjourn the sale from day to day if it purchaser of the property become the owner of such property
becomes necessary to do so for lack of time to complete the sale on the auctioned? As of the time of the levy. If it was levied in October and the
day fixed in the notice or the day to which it was adjourned. sale is on December, he became the owner of the property as of
October. Redemption only applies to real property, not to personal
Section 23. Conveyance to purchaser of personal property capable of property.
manual delivery. — When the purchaser of any personal property,
capable of manual delivery, pays the purchase price, the officer making That does not hold true in case of real properties. If real properties are
the sale must deliver the property to the purchaser and, if desired, the subject of an auction, the purchaser only becomes the owner of the
execute and deliver to him a certificate of sale. The sale conveys to the property after consolidation of title, which is a separate action under
purchaser all the rights which the judgment obligor had in such property Rule 63 (declaratory relief and other similar remedies). That is why when
as of the date of the levy on execution or preliminary attachment. it comes to real property, there is redemption.

Remedial Law Review I – Civil Procedure

A filed a case against B for a sum of money. Judgment was rendered in If this is January 2014, attachment was 2000! Within that period from the
favor of A. B could not pay the amount so A was able to levy on the 3 time it was attached until it was sold, 14 years went by. Section 1 of Rule
race horses of B. The same was duly registered. Until when may B 57, when can you attach a property? At the commencement of the action
redeem the race horses? B cannot redeem. Redemption applies only in or at any time. When you attach the property and you try to satisfy the
real properties and horses are personal property. judgment you don‘t go to Rule 39. It is not sale on execution but sale on
attachment. If you were able to attach the property worth P10,000,000
When did A become the owner of the property? As of the time of the levy and the debt was only P1,000,000, many other subsequent lien holders
(Sections 23, 24, 33). The rights of ownership retroact to the time of will be dealing with the property. These are called redemptioners. If your
levy. lien is PRIOR to the lien under which the property was sold, you are not
a redemptioner.
Can you redeem soil on flowerpots? No, those are still personal
property. The nature of redemption is that this property is immovable. If the judgment obligor redeems it, can a redemptioner redeem it again?
You cannot relocate them. Soil in a flowerpot can be relocated. Why does the rule provide that once the obligor redeems, no further
redemption is allowed? Because the property has returned to the original
The period of redemption is 1 year from the registration of the certificate owner.
of sale (example: March 2005-March 2006).
If a redemptioner redeems, it can still be redeemed by a judgment
Within that period, who may redeem? Judgment obligor or creditor who obligor or other redemptioner. When? Within 60 days from the previous
has a lien on the property. redemption.

What is the nature of the lien? Execution. You can only redeem from a redemptioner. If it is the judgment obligor
that first redeems the property, no further redemption is allowed. But if it
There are 2 kinds of persons who may redeem: (1) judgment obligor; (2) is a redemptioner who redeems the property, within a period of 60 days,
redemptioner (examples: attaching creditor, mortgagee; must be after it can still be redeemed either by the judgment obligor or another
the lien under which the property was sold). redemptioner. If it exceeds the 60 day period,

Look at the time frame: the property was levied on January. It was sold Mar 10, 1995  (1 year from registration of COS)  Mar 9, 1996
in March. From the levy up to the execution sale, there is a gap of 2
months. What lien are we selling the property here? Under the levy of Apr 5  Jun 4  Feb 14
execution. The levy took place on January. The sale took place on
March. Within January and March, who may be a possible lien holder? Within the 1 year period (March 10, 1995- March 9, 1996), if it is
B‘s creditors. redeemed by the judgment obligor, that‘s the end of it and there can no
longer be any redemption.
Illustration: 1 hectare of land is levied upon. It was sold. Who will
negotiate or deal with that land within a 2-month period? Under On April 5, it is redeemed by a redemptioner. Until when? Until June 4.
paragraph b, attaching creditor, mortgagee, etc. Who owns this land? This is a 60-day period. Can it still be redeemed? Only by the judgment
The judgment obligor. When it is levied upon, is there anyone who would obligor beyond the June 4.
deal with said land? (would anyone attach on the land?) Rule 57. The
other creditors of B! If the obligation is P1,000,000, the value of the land In any occasion, the judgment obligor always has a period of one year.
is P10,000,000, a lot of people would still deal with the property. These
people are redemptioners because they are selling the property On February 14, a redemptioner redeems. Can it be redeemed again?
pursuant to a lien on levy on execution which happened in January. Until when may a redemptioner redeem? April 14, even though it is
beyond the one year period. When it comes to redemptions, the Rules
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are relaxed. The more redemptions, the better. It is economically sound. place in which the property is situated and the registrar of deeds must
The more obligations are paid for with just one property, the better. note the record thereof on the margin of the record of the certificate of
Everybody wins. How much is the additional amount? 2% if sale. The payments mentioned in this and the last preceding sections
redemptioner; 1% per month if judgment obligor. Even if the redemption may be made to the purchaser or redemptioner, or for him to the officer
by a redemptioner is within a period of 1 month from the last redemption, who made the sale.
he pays 2% plus. But if it is the judgment obligor that redeems, he pays
only 1% for every month. H. Other remedies to fully satisfy judgment

The one-year period can be extended but only as far as the redemption (Referring to section 6 example) In this revived judgment, which you can
is concerned. The last redemption will only be the maximum limit. But if revive again and again so judgment will not expire for execution
the last re-redemption is only up to March 9. If it was redeemed by a purposes, suppose you were not able to satisfy it fully, what other legal
redemptioner and it would go beyond the maximum of 1 year, it may still recourse do you have to fully satisfy it?
be redeemed beyond that. But if the Rule provides that a redemptioner
can redeem it, with more reason that the obligor could redeem it Judgment for money under section 9: payment, levy, garnishment. If you
because it belongs to him. have exhausted all of these but the judgment is still not satisfied, what
are your other remedies? Examination of the judgment obligor under
1. the right of redemption vs equity of redemption section 36, examination of obligor of judgment obligor under section 37,
appointment of a receiver under section 41 and sale of ascertainable
2. who may redeem (Section 27) interest under section 42.

Section 27. Who may redeem real property so sold. — Real property 1. Examination of judgment obligor (Section 36)
sold as provided in the last preceding section, or any part thereof sold
separately, may be redeemed in the manner hereinafter provided, by the Section 36. Examination of judgment obligor when judgment
following persons: unsatisfied. — When the return of a writ of execution issued against
(a) The judgment obligor; or his successor in interest in the whole or any property of a judgment obligor, or any one of several obligors in the
part of the property; same judgment, shows that the judgment remains unsatisfied, in whole
(b) A creditor having a lien by virtue of an attachment, judgment or or in part, the judgment obligee, at any time after such return is made,
mortgage on the property sold, or on some part thereof, subsequent to shall be entitled to an order from the court which rendered the said
the lien under which the property was sold. Such redeeming creditor is judgment, requiring such judgment obligor to appear and be examined
termed a redemptioner. concerning his property and income before such court or before a
commissioner appointed by it at a specified time and place; and
3. effect of redemption (Section 29) proceedings may thereupon be had for the application of the property
and income of the judgment obligor towards the satisfaction of the
Section 29. Effect of redemption by judgment obligor, and a certificate judgment. But no judgment obligor shall be so required to appear before
to be delivered and recorded thereupon; to whom payments on a court or commissioner outside the province or city in which such
redemption made. — If the judgment obligor redeems he must make the obligor resides or is found.
same payments as are required to effect a redemption by a
redemptioner, whereupon, no further redemption shall be allowed and 2. Examination of obligor of judgment obligor (Section 37)
he is restored to his estate. The person to whom the redemption
payment is made must execute and deliver to him a certificate of Section 37. Examination of obligor of judgment obligor. — When the
redemption acknowledged before a notary public or other officer return of a writ of execution against the property of a judgment obligor
authorized to take acknowledgments of conveyances of real property. shows that the judgment remain unsatisfied, in whole or in part, and
Such certificate must be filed and recorded in the registry of deeds of the upon proof to the satisfaction of the court which issued the writ, that a
Remedial Law Review I – Civil Procedure
person, corporation, or other juridical entity has property of such When you execute a judgment against a surety, should you implead the
judgment obligor or is indebted to him, the court may, by an order, principal?
require such person, corporation, or other juridical entity, or any officer,
or member thereof, to appear before the court or a commissioner General rule: You cannot run after the surety without the principal.
appointed by it, at a time and place within the province or city where
such debtor resides or is found, and be examined concerning the same. Exception: In matters of implementing a judgment against a principal
The service of the order shall bind all credits due the judgment obligor and a surety, you don‘t have to bring in the principal. The surety is
and all money and property of the judgment obligor in the possession or already an indispensable party. But you may bring in the principal if you
in the control of such person corporation, or juridical entity from the time want to because the principal is a necessary party.
of service; and the court may also require notice of such proceedings to
be given to any party to the action in such manner as it may deem J. Effect of judgment (Section 47)
Section 47. Effect of judgments or final orders. — The effect of a
3. Appointment of a receiver (Section 41) 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 41. Appointment of receiver. — The court may appoint a
receiver of the property of the judgment obligor; and it may also forbid a (a) In case of a judgment or final order against a specific thing, or in
transfer or other disposition of, or any interference with, the property of respect to the probate of a will, or the administration of the estate of a
the judgment obligor not exempt from execution. deceased person, or in respect to the personal, political, or legal
condition or status of a particular person or his relationship to another,
4. Sale of ascertainable interest (Section 42) the judgment or final order is conclusive upon the title to the thing, the
will or administration or the condition, status or relationship of the
Section 42. Sale of ascertainable interest of judgment obligor in real person, however, the probate of a will or granting of letters of
estate. — If it appears that the judgment obligor has an interest in real administration shall only be prima facie evidence of the death of the
estate in the place in which proceedings are had, as mortgagor or testator or intestate;
mortgagee or otherwise, and his interest therein can be ascertained
without controversy the receiver may be ordered to sell and convey such (b) In other cases, the judgment or final order is, with respect to the
real estate or the interest of the obligor therein; and such sale shall be matter directly adjudged or as to any other matter that could have been
conducted in all respects in the same manner as is provided for the sale missed in relation thereto, conclusive between the parties and their
of real state upon execution, and the proceedings thereon shall be successors in interest, by title subsequent to the commencement of the
approved by the court before the execution of the deed. action or special proceeding, litigating for the same thing and under the
same title and in the same capacity; and
Suppose the obligor comes from a very rich family. Can the receiver sell
the interest of the obligor in the estate of his father? (c) In any other litigation between the same parties or their successors in
interest, that only is deemed to have been adjudged in a former
I. Judgment: principal vs surety (Section 46) judgment or final order which appears upon its face to have been so
adjudged, or which was actually and necessarily included therein or
Section 46. When principal bound by judgment against surety. — When necessary thereto.
a judgment is rendered against a party who stands as surety for another,
the latter is also bound from the time that he has notice of the action or Among the grounds in a motion to dismiss in Rule 16 is res judicata. The
proceeding, and an opportunity at the surety's request to join in the explanation of res judicata is in Section 47.

Remedial Law Review I – Civil Procedure

(a) and (b) of Section 47 is res judicata proper or estoppel (barred by The rule distinguishes: If it is judgment against a specific thing, it is
prior judgment). conclusive; if it is against a person, it is a presumptive evidence of
a right (example: divorce).
(c) is conclusiveness of judgment. As to the issue, it can no longer be
retried in the next case. Section 48. Effect of foreign judgments or final orders. — The effect of a
judgment or final order of a tribunal of a foreign country, having
The issue of ownership has already been resolved in unlawful detainer. jurisdiction to render the judgment or final order is as follows:
Can that be again resolved in another case (reivindicatoria)? Yes. This is
the exception. Under Rule 70, the only issue in unlawful detainer is (a) In case of a judgment or final order upon a specific thing, the
possession. In an action for unlawful detainer, if the issue of ownership judgment or final order, is conclusive upon the title to the thing, and
is raised in the pleading, the court is not divested of its jurisdiction but
must resolve the issue of ownership only to resolve the issue of (b) In case of a judgment or final order against a person, the judgment or
possession. final order is presumptive evidence of a right as between the parties and
their successors in interest by a subsequent title.
In all other instances, conclusiveness of judgment will apply. Like in
settlement of estate, if you are probating the will, probating of the will In either case, the judgment or final order may be repelled by evidence
only refers to the authenticity and due execution of the will, nothing else. of a want of jurisdiction, want of notice to the party, collusion, fraud, or
If the parties submit to the probate court the issue of ownership of clear mistake of law or fact.
properties belonging to the estate, and the court resolves that, you
cannot bring that up anymore because conclusiveness of judgment will Panotes vs CTDC: The property was sold to him as a buyer, not as a
apply. developer. He was not a successor-in-interest because he was a buyer
in good faith. He did not even know there was an encumbrance in the
K. Effect of foreign judgment (Section 48) property. Writ of execution cannot be implemented against a non-
party to an action. How about a successor-in-interest? Under the
Republic vs Orbesillo: A and B divorced in another country. In the doctrine of res judicata, identity of parties is not absolute. It is identity of
Philippines, A is still married to B but B, who is not in the Philippines, is interest and not identity of persons.
not married to A anymore. He filed declaratory relief under Rule 63,
wanting to know what his rights are in the Philippines. SC: Fine, you can The case stemmed from a complaint filed with the National Housing
remarry since it would be unreasonable if you remain married to Authority (NHA) by Rogelio Panotes, then president of the Provident
someone who is not married to you. Village Homeowners Association, Inc., against Provident Securities
Corporation (PROSECOR), owner-developer of the Provident Village in
How do you enforce foreign judgment here? There must be a petition for Marikina City. The complaint alleges that PROSECOR violated PD 957
enforcement of a foreign judgment. You cannot implement a foreign (REGULATING THE SALE OF SUBDIVISION LOTS AND
judgment here in the country. You file another case, the subject matter CONDOMINIUMS, PROVIDING PENALTIES FOR VIOLATIONS
of which is the judgment. THEREOF), one of which was its failure to provide an open space in the
said subdivision. NHA directed PROSECOR to provide the Provident
In Manotoc, that is an enforcement of a foreign judgment. Imee Village an open space which is Block 40. Considering that PROSECOR
Manotoc was adjudged abroad and she wanted to implement that here. did not appeal from the NHA Resolution, it became final and executory.
Judgment obligee said it cannot be implemented. Manotoc filed an
enforcement of that foreign judgment. The summons was served to Maki When Panotes filed a motion for execution of the NHA Resolution, it was
dela Cruz, who was not related to Imee. The doctrine here is substituted found that the records of the case were ―mysteriously missing.‖ Hence,
service. You cannot enforce that here. his motion was ―provisionally dismissed‖ without prejudice.

Remedial Law Review I – Civil Procedure

Meanwhile, PROSECOR sold to City Townhouse Development successor-in-interest of PROSECOR. When CTDC bought Block 40,
Corporation (CTDC), respondent, several lots in the subdivision. Among there was no annotation on PROSECOR‘s title showing that the property
the lots sold were those comprising Block 40. CTDC was unaware of the is encumbered. In fact, the NHA Resolution was not annotated thereon.
NHA Resolution ordering PROSECOR to have Block 40 utilized as open CTDC is thus a buyer in good faith and for value, and as such, may not
space of Provident Village. be deprived of the ownership of Block 40.

The new president (Araceli Bumatay) of the Provident Homeowners The real party-in-interest in the revival of NHA Case is PROSECOR and
Association, Inc. filed with the HLURB a complaint for the revival of the not CTDC. PROSECOR was the lone defendant or respondent in that
NHA Resolution. Impleaded thereon as defendant was CTDC, which case against whom judgment was rendered. To insist that CTDC is a
was alleged as successor-in-interest of PROSECOR. HLURB rendered successor-in-interest of PROSECOR may have some truth if we are
its Decision in favor of Bumatay, reviving NHA Resolution and declaring talking about the ownership of the lots sold by PROSECOR in favor of
Block 40 of the Provident Village as ―open space‖ for the said CTDC as a result of a civil action between the two. But then, to hold
subdivision. On appeal to the HLURB Board of Commissioners, the CTDC as the successor-in-interest of PROSECOR as the developer of
Decision was affirmed with modification in the sense that CTDC has the the subdivision, is far from realty. CTDC is simply on the same footing as
right to recover from PROSECOR ―what it has lost.‖ After its MR was any lot buyer-member of PVHIA.
denied, CTDC interposed an appeal to the Office of the President which
affirmed in toto the judgment of the HLURB Board of Commissioners. Furthermore, strangers to a case, like CTDC, are not bound by the
CTDC then filed with the CA a petition for review under Rule 43. CA judgment rendered by a court. It will not divest the rights of a party who
rendered its Decision reversing the Decision of the OP and dismissing has not and never been a party to a litigation. Execution of a judgment
the complaint for revival of judgment. can be issued only against a party to the action and not against one who
did not have his day in court.
SC: NHA Resolution may not be enforced against CTDC. An action for
revival of judgment is no more than a procedural means of securing the Fajardo vs Quitalig: Sheriff Rodolfo Quitalig of the MTCC was charged
execution of a previous judgment which has become dormant after the by Reverend Fernando Fajardo with conduct prejudicial to the best
passage of 5 years without it being executed upon motion of the interest of the service and/or dereliction of duty.
prevailing party. It is not intended to re-open any issue affecting the
merits of the judgment debtor‘s case nor the propriety or correctness of Petitioner filed a motion for execution of a judgment in an ejectment
the first judgment. case. The court issued a writ of execution. Sheriff served writ on
defendant, who asked for a period of 2 weeks to remove her personal
The original judgment or the NHA Resolution sought to be revived was properties. After 2 weeks he went to Sheriff Quitalig so that the Writ of
between Rogelio Panotes and PROSECOR, not between petitioner Execution may be implemented but he was told that a restraining order
Araceli Bumatay and respondent CTDC. In maintaining that CTDC is was issued, but when he asked for it, Quitalig told him that he left it in
bound by the NHA Resolution, petitioner claims that CTDC is the the office. Fajardo discovered that no restraining order has really been
successor-in-interest of PROSECOR and, therefore, assumed the issued. He told Quitalig to implement the Writ of Execution. Sheriff,
obligations of the latter to provide an open space for Provident Village. accompanied by a policeman and the barangay captain went to the
CTDC purchased from PROSECOR Block 40 in the said village, not as place where the Writ of Execution is to be implemented but when they
an owner-developer like PROSECOR, but as an ordinary buyer of lots. reached the place, Quitalig did not do anything except to ask the
Even after the sale, CTDC did not become an owner-developer. The defendant to bring out her personal properties. His reason is that an
Deed of Sale executed by CTDC, as buyer, and PROSECOR, as seller, employee of the Probation Office, Leonardo Martinez, talked to him. The
shows that the subject matter of the sale is the unsold lots comprising restraining order was brought to the place, and Quitalig told him that the
Block 40 within the subdivision to CTDC. The contract does not include writ of execution can no longer be implemented.
the transfer of rights of PROSECOR as owner-developer of the said
subdivision. Clearly, there is no basis to conclude that CTDC is the
Remedial Law Review I – Civil Procedure
Quitalig denied the charge. He asked for the dismissal of the case,
because he had already implemented the Writ as evidenced by his Villaruel vs Fernando: Panfilo Villaruel is the former Assistant
Report of Service. OCA found Quitalig to have been negligent in the Secretary for Air Transportation Office (ATO) of DOTC. Fernando,
performance of his duty as a sheriff. Abarca and Cleofas are the Chief, Chief Admin Assistant and Admin
Assistant of Civil Aviation Training Center (an adjunct agency of ATO
SC: Quitalig was negligent in the performance of his duty as sheriff. tasked to train air traffic controllers, airway communicators and related
Quitalig enforced the Writ of Execution dated March 7, 2000 only on civil aviation personnel).
August 24, 2000, as shown by his August 25, 2000 Report of Service.
Within 30 days from receipt thereof and every 30 days thereafter until Villaruel issued a memorandum detailing respondents to the Office of
the judgment is fully satisfied, a sheriff is required by the Rules of Court DOTC Undersecretary Primitivo Cal. The latter wrote to DOTC Secretary
to render a report on the action taken on a writ of execution. Evidently, Garcia requesting to reconsider the detail order but to comply with the
Quitalig was not only remiss in his implementation of the Writ, but order, they reported Cal‘s office.
likewise derelict in his submission of the returns thereof.
Without acting on this request, Villaruel issued another memorandum
Quitalig should have immediately implemented and made a return of the placing Abarca under preventive suspension for 90 days without pay
Writ after duly serving it upon the defendant on March 9, 2000. pending investigation for alleged grave misconduct. After 90 days,
Nonetheless, because of the request of the defendant and her promise respondents requested Sec. Garcia to lift these orders and they also
that she would vacate the premises on March 23, 2000, he allowed her sought the intervention of the Ombudsman. Ombudsman inquired but
to remain there. However, when he came back on March 24, 2000, he Garcia only replied that he already issued a memorandum recalling
was unable to enforce the Writ because of a TRO issued by the RTC. respondents to their mother unit. In the end, the respondents were never
He averred that he was finally able to execute the Writ on August 24, reinstated to their old positions.
2000 and to submit his Return thereof on the next day.
Respondents filed a Petition for Mandamus and Damages with Prayer
By his own words, Quitalig admitted his dereliction of duty. First, as we for Preliminary Mandatory Injunction (RTC). Injunction was granted and
have said earlier, he should have immediately executed the Writ when ordered Villaruel to recall respondents to their mother unit. Villaruel
he served it upon the defendant on March 9, 2000. Second, he should never complied with this order so he was declared guilty of indirect
have immediately reported to the MTCC that he was unable to enforce contempt.
the Writ because another court had issued a TRO enjoining him from
doing so. Third, he should have informed the parties, particularly the Villaruel, through the OSG, filed a special civil action for certiorari (CA)
plaintiff or his counsel, about his inability to enforce the Writ. Fourth, he assailing the order of contempt.
should have immediately enforced it 20 days after its issuance. Fifth, he
should have made periodic Reports to the MTCC until the judgment was Meanwhile trial in the RTC continued and Villaruel was declared in
fully satisfied and the parties furnished a copy thereof. Sixth, within 30 default. Respondents‘ evidence were already presented ex parte.
days from his receipt of the Writ, he should have promptly made his Judgment was rendered in favor of the respondents.
Return, a copy of which he should have immediately furnished the
parties. Villaruel appealed this decision to CA. (So he has two cases before CA:
certiorari and appeal). Apparently, respondents filed MTD in the
The actuations of Quitalig constitute disrespect, if not outright defiance, certiorari case and it was granted because the issue there is already
of the MTCC‘s authority. In the absence of instructions to the contrary, a moot and academic. OSG failed to file a memorandum. The appeal was
sheriff has the duty to execute a Writ with reasonable celerity and dismissed. Assistant Solicitor Luciano filed MR but it was denied and the
promptness in accordance with its mandate. resolution was declared final and executory.

RCBC vs Magwin Marketing Corp

Remedial Law Review I – Civil Procedure
Respondents filed a Motion for Execution with the RTC and a copy was administrative case before the Ombudsman, the issue was whether
served to OSG but the latter did not file any opposition. RTC issued a respondents were guilty of violating RA 6713. In contrast, the issue in
writ of execution and the sheriff issued a notice of sheriff‘s sale the civil action before the RTC was whether respondents were entitled to
(Villaruel‘s real estate property). the issuance of the writ of mandamus and damages.

Villaruel through a new counsel filed a Motion to Quash Writ of The findings of the Ombudsman did not render the execution of the trial
Execution and Suspend Sheriff‘s sale alleging that the RTC‘s decision court‘s decision unjust and inequitable. The resolution of the
never became final and executory because it deprived him of due Ombudsman finding Abarca guilty of violating Section 7(d) of RA 6713
process. OSG failed to file his memorandum and failed to inform him of did not state that petitioner had a valid reason to detail respondents to
the orders of dismissal and granting of execution. He further alleged that the Office of Undersecretary Cal. In fact, the Ombudsman dismissed the
the resolution of the Ombudsman (Abarca was found guilty, Fernando charges against Reynaldo Fernando and Mary Lou Cleofas. Thus, the
and Cleofas were also dismissed) superseded the RTC decision. RTC trial court correctly awarded damages to respondents. Contrary to
quashed the writ because the Sheriff failed to follow Section 9, Rule 39 petitioner‘s contention, awarding damages to respondents does not
and issued an Alias Writ. The MR filed by Villaruel was denied. Villaruel amount to rewarding respondents for their alleged wrongdoing. The
went to CA again and filed certiorari (based on the motion for execution). award merely compensates respondents for petitioner‘s own unlawful
CA dismissed this and the MR so now Villaruel filed this case. acts. Clearly illegal were petitioner‘s acts of unjustifiably detailing
respondents to the office of DOTC Undersecretary Cal and refusing to
Issue: WON the Ombudsman resolution finding Abarca guilty comply with the 9 November 1995 directive of Secretary Garcia to recall
superseded the trial court‘s decision and rendered it unjust and immediately respondents to their mother unit.
Morta vs Bagagnan: Sps. Morta charged Judge Bagagnan of the MTC
SC: No. A judgment that has acquired finality becomes immutable and with gross ignorance of the law, incompetence, bias and delay. They
unalterable and may no longer be modified in any respect except only to also indicted Sheriff Matias of RTC with gross ignorance of the law,
correct clerical errors or mistakes. This rule admits of certain exceptions. negligence and connivance with the defendants in 2 civil cases in the
One of these exceptions is whenever circumstances transpire after the MTC.
finality of the decision rendering its execution unjust and inequitable.
This, however, is not the case here. The Ombudsman issued his Judge Magagnan, in his Answer/Comment, explained that he had
Resolution prior to the finality of the RTC‘s decision. The Ombudsman denied the spouses' motion for the issuance of a writ of possession
issued his Resolution on 22 January 1997 while the RTC‘s decision because by the time the 2 civil cases were finally decided by the SC,
became final and executory on 14 June 1997. Therefore, the resolution they had already been ousted from the lots pursuant to a DARAB
of the Ombudsman is not a supervening event to warrant the stay of the decision (directing them to cease and desist from disturbing the peaceful
execution of the decision of the trial court. possession of Jaime Occidental), and a decision ordering the spouses to
vacate the lots (a writ of execution/demolition was issued). Regarding
Furthermore, the resolution of the Ombudsman finding Abarca guilty of the alleged delay in the resolution of the Motion for Contempt, Judge
violating Section 7(d) of RA 6713 did not and could not supersede the Bagagnan contended that an ocular inspection and a hearing had been
decision of the RTC holding petitioner liable for damages. The action conducted to determine if their motion had any basis. The hearing had to
filed by the petitioner before the Ombudsman is completely different be deferred pending receipt of the sheriff's report.
from the action instituted by respondents before the RTC. The 2
actions, which are clearly separate and distinct from each other, Sheriff Matias admitted that there was delay in the full implementation of
presented 2 different causes of action. Petitioner‘s cause of action the Writ of Execution of the 2 civil cases, and explained that the delay
arose from respondents‘ alleged violation of certain provisions of RA was due to his heavy workload and was unintentional.
6713 whereas respondents‘ cause of action resulted from petitioner‘s
refusal to recall respondents to their mother unit at CATC. In the
Remedial Law Review I – Civil Procedure
Office of the Court Administrator (OCA): the explanation of the judge excuse of heavy workload cannot absolve the Sheriff from administrative
was sufficient, the records showed that the spouses had been evicted sanctions. He should at all times show how a high degree of
from the lots they were claiming when the 2 civil cases were finally professionalism in the performance of his duties. He failed to observe
decided by the SC; the delay in the contempt proceedings was due that degree of dedication required of him as a sheriff.
primarily to the need of the court to clarify some important matters, and
not due to the negligence or partiality of the judge. OCA recommended Serrano vs CA: Sps Serrano were the owners of a parcel of land at QC.
that the charges against him be dismissed. OCA, however, found that The couple mortgaged the properties in favor of GSIS as security for a
Sheriff Matias failed to implement the Writ of Execution promptly and loan of P50,000. However, the couple was able to pay only P18,000.
efficiently, and recommended that he be ordered to pay a fine.
Sps Serrano, as vendors, and Sps Emilio and Evelyn Geli, as vendees,
SC: The writ of execution was not implemented promptly and efficiently. executed a deed of absolute sale with partial assumption of mortgage
Sheriff Matias is guilty of simple neglect of duty. The final stage in the over the parcel of land. The Sps Geli paid P38,000 as partial payment,
litigation process, the execution of judgment, must be carried out with the balance of P32,000 to be paid by them to the GSIS for the
promptly. Those tasked to implement court orders and processes should account of Sps Serrano. The Sps Geli thereafter took possession of the
exert every effort and indeed consider if their bounden duty to do so, in property. Evelyn Geli died and was survived by husband Emilio Geli and
order to ensure the speedy and efficient administration of justice. A their children.
decision that is left unexecuted or delayed indefinitely because of the
sheriff‘s inefficiency or negligence remains an empty victory on the part However, Emilio and his children failed to settle the f P32,000 to GSIS.
of the prevailing party. For this reason, any inordinate delay in the GSIS filed a complaint against Geli and his children with RTC for the
execution of judgment is truly deplorable and cannot be countenanced recission of the deed of absolute sale with partial assumption of
by the Court. mortgage. RTC ordered the rescission of the deed.

According to Section 14, Rule 39 of the ROC, a writ of execution shall be Geli appealed to the CA. During pendency of the appeal, GSIS
returnable to the court issuing it immediately after the judgment has foreclosed the real estate mortgage over the property for non-payment
been satisfied in part or in full. If the judgment cannot be satisfied in full of the P50,000 loan. GSIS was the highest bidder at the public auction.
within 30 days after his receipt of the writ, the officer shall report to the A certificate of sale over the property was issued by the sheriff Geli paid
court and state the reason. Such writ shall continue in effect during the the redemption price to GSIS, wherein GSIS executed a certificate of
period within which the judgment may be enforced by motion. The redemption and turned over to Geli the TCT in the names of Sps
officer shall make a report to the court every 30 days on the proceedings Serrano. Geli did not inform the Sps Serrano and the CA that he had
taken thereon until the judgment is satisfied in full, or its effectivity paid the redemption price to GSIS. CA dismissed the appeal of Geli on
expires. The returns or periodic reports shall set forth the whole of the the ground that the appellants failed to pay the requisite docket fees. No
proceedings taken, and shall be filed with the court and copies thereof motion for reconsideration was filed. The dismissal of the appeal
promptly furnished the parties. According to Administrative Circular No. became final and executory.
12, October 1, 1985, he must submit to the judge concerned a report on
actions taken on all writs and processes assigned to them within 10 days Sps Serrano filed with the RTC a motion for execution of the RTC‘s
from receipt. earlier decision. The defendants Geli filed a motion to quash the claim
because he had already redeemed the property, arguing that this
A Writ of Execution was issued November 22, 1999. The Return of constituted a supervening event that would make the execution of the
Service of that Writ was filed on May 25, 2000, about 6 months after. trial court‘s decision unjust and inequitable.
There is nothing in the records that shows he submitted a periodic report
on the actions he had taken every 30 days. The writ was partially RTC denied the motion. It noted that the payment of Geli of the
executed on December 15-28, 1999 and January 11, 2000, but it was redemption price took place before the CA dismissed the appeal, and
only on May 25 that this matter was reported to the trial court. The
Remedial Law Review I – Civil Procedure
before the decision of the RTC became final, hence, it did not constitute executory decision must fail. Once a judgment has become final and
a supervening event warranting a quashal of the writ of the execution. executory, the only remedy left for material attention thereof is that
provided for in Rule 38 of the Rules of Court, as amended. There is no
Emilio Geli died intestate and was survived by his children. The heirs other prerequisite mode of thwarting the execution of the judgment on
filed with the CA a petition for certiorari and/ or prohibition praying for the equitable grounds predicated on facts occurring before the finality of
nullification of the RTC orders. Under the terms of the deed of absolute judgment. In the second situation, the execution may be stayed,
sale with assumption of mortgage which was still subsisting at that time, notwithstanding the affirmance of the appealed judgment by this Court. It
they were ipso facto subrogated to the rights of the Spouses Serrano as is required, however, that the supervening facts and circumstances must
mortgagors of the property; hence, they became the owners of the either have a direct effect upon the matter already litigated and settled or
property and were entitled to the possession thereof. CA ruled that since create a substantial change in the rights or relations of the parties
Geli paid the redemption price while his appeal was pending with the therein which would render execution of a final judgment unjust,
CA, the redemption was a supervening event which rendered the impossible or inequitable or when it becomes imperative in the interest
enforcement of the writ of execution issued by the RTC against them of justice. The interested party may file a motion to quash a writ of
unjust and inequitable. execution issued by the trial court, or ask the court to modify or alter the
judgment to harmonize the same with justice and further supervening
Petitioner argues: that the payment of the redemption price by Emilio facts. Evidence may be adduced by the parties on such supervening
Geli during the pendency of the appeal in the CA was ineffective facts or circumstances.
because, subsequently, when the respondents‘ appeal was dismissed
by the CA, the summary decision of the RTC declaring the deed of The payment by Emilio Geli to the GSIS for the account of the
absolute sale with partial assumption of mortgage rescinded had petitioners was made while the appeal of the private respondents from
become final and executory. The deed of absolute sale with partial the summary judgment of the RTC was pending. The summary
assumption of mortgage executed by the petitioners and the Spouses judgment of the RTC had not yet become final and executory. It
Geli had ceased to exist with its rescission as decreed by the RTC. behooved the said respondents to prosecute their appeal and file their
According to the petitioners, the payment of the redemption price was brief, where they should have invoked the payment of the redemption
conditioned upon the perfection and outcome of the appeal. Since the price as a ground for the reversal of the trial court‘s summary judgment
appeal of the respondents was dismissed by their failure to pay the in their favor. The respondents failed to do so, and even concealed the
requisite docket fees, they must suffer the consequences thereof. payment of the loan for the account of the petitioners. Worse, the
respondents did not pay the requisite docket fees for their appeal, which
Issue: WoN the redemption constituted a supervening event which resulted in its dismissal. The respondents even opted not to file any
changed the relation of the parties, thus rendering execution inequitable motion for the reconsideration of the resolution of the CA dismissing
under the premises. their appeal. In sum, the respondents allowed the decision of the trial
court to become final and executory. Consequently, the enforcement of
SC: No. Generally, the execution upon a final judgment is a matter of the summary judgment of the trial court can no longer be frustrated by
right on the part of the prevailing party. It is the ministerial and the respondents‘ payment, through Emilio Geli, to the GSIS in 1987.
mandatory duty of the trial court to enforce its own judgment once it
becomes final and executory. It may happen, however, that new facts Irrefragably, the Spouses Geli, as vendees-mortgagors under the deed
and circumstances may develop or occur after a judgment had been of absolute sale with partial assumption of mortgage, would have been
rendered and while an appeal therefrom is pending; or new matters had subrogated to the rights and obligations of the petitioners under the said
developed after the appeal has been dismissed and the appealed deed, including the right to redeem the property from the GSIS.
judgment had become final and executory, which the parties were not However, the CA dismissed their appeal for failure to pay the requisite
aware of and could not have been aware of prior to or during the trial or docket fees, and such dismissal became final and executory. Hence,
during the appeal, as they were not yet in existence at that time. In the the summary judgment of the trial court declaring the deed of absolute
first situation, any attempt to frustrate or put off the enforcement of an
Remedial Law Review I – Civil Procedure
sale with partial assumption of mortgage rescinded had also become - The property was sold for only P4.5 million, the balance of their
final and executory. account with the bank but about 400% lower than the prevailing
price of the property.
Perez vs CA: The spouses Digos secured a loan of P5.8 million from - The bank rejected their plea for a 5 month extension to redeem,
the International Exchange Bank to finance their project for the and their offer of P1 million in partial payment of their loan account
construction of townhouses on their property. However, the project was to reduce the same to P3.5 million but the bank granted them an
delayed because the homeowners in Pillarville Subdivision which extension of only 1 month to redeem the property, designed to
abutted the property refused to allow them to build an access road. divest them of the same and enrich some characters at their
Thus, the equipment to be used for the project could not pass through. expense.

The spouses Digos failed to pay the amortization on their loan. The The spouses caused the annotation of a notice of lis pendens at the
Bank caused the extrajudicial foreclosure of their real estate mortgage. dorsal portion of the TCT. The trial court did not issue a TRO or writ of
The property was sold at public auction with the bank as the highest preliminary injunction. The bank moved for dismissal and for the
bidder at P4.5 million, which appeared to be the account of the spouses cancellation of the notice of lis pendens.
at that time. The certificate of sale was executed by the sheriff and was
registered with the Register of Deeds. The trial court granted the bank‘s motion to dismiss. The trial court held
that it had no authority to extend the period for redemption and since it
In the meantime, the spouses referred the matter to barangay had already expired, the spouses had no more right to redeem the
conciliation but the barangay captain failed to resolve the matter due to property; as such, the defendant [bank] had the right to consolidate its
the vehement objections of some of the subdivision homeowners. title to the property.

The spouses wrote the bank and asked for 6 months within which to The spouses did not appeal. Instead, they filed a petition for certiorari
redeem the property. The bank denied their request. They again wrote to with the CA. CA dismissed the petition for being filed out time. They filed
the bank and pleaded for an extension of 3 months to redeem the an MR but they later withdrew via a motion. CA resolved to grant the
property. The bank granted them 1 month. However, the bank motion and the resolution dismissing the petition became final and
consolidated its title over the property and the Register of Deeds issued executory. Entry of judgment was made.
a TCT in the bank‘s name.
Meanwhile, the bank sold the property to the petitioners, Isidro Peres
First Complaint: and Narciso Ragua. The Register of Deeds issued a TCT in their names.

Instead of repurchasing the property, the spouses filed a complaint Second complaint:
against the bank for the nullification of the extrajudicial foreclosure of the
real estate mortgage and sale at public auction and/or redemption of the The spouses filed a complaint with the RTC against the bank, Perez and
property, with a prayer for a temporary restraining order and a writ of Ragua, for the cancellation and annulment of the extrajudicial
preliminary injunction to enjoin the bank from consolidating the title over foreclosure of the real estate mortgage executed by them in favor of the
the property. bank, the sale at public auction as well as the certificate of sale executed
by the sheriff, and the Torrens title issued to them.
- They were denied due process because the foreclosure of the real
estate mortgage was extrajudicial. - They reiterated the allegations in the first complaint.
- The sale at public auction was without prior notice to them. - They admitted their failure to pay the amortization on their loans.

Remedial Law Review I – Civil Procedure

- That the extrajudicial foreclosure of the real estate mortgage and that has been definitely and finally settled on its merits by a court of
the sale at public auction were illegal because the bank charged competent jurisdiction without fraud or collusion.
much more than the amount due on their loan account.
- That although they pleaded for a restructuring of their loan account There are 4 essential requisites which must concur for the application
and a moratorium on the payment of their account, they were of this doctrine:
unaware of the erroneous computation of the balance of their loan
account. (a) finality of the former judgment;
- That the bank‘s consolidation of its title over the property was
premature because they were given one month to redeem their (b) the court which rendered it had jurisdiction over the subject
property. matter and the parties;

The bank filed a motion to dismiss. The bank alleged, among others, (c) it must be a judgment on the merits; and
that the spouses were guilty of splitting a single cause of action because
they already assailed the extrajudicial foreclosure of the real estate (d) there must be, between the first and second actions, identity of
mortgage and the sale of the property at public auction on account of parties, subject matter and causes of action.
lack of due process and arbitrary abuse in their first complaint and again
sought to do so in the second complaint this time grounded on the Section 49(c) of Rule 39 enumerates the concept of conclusiveness
invalid foreclosure of the real estate mortgage, and the sale at public of judgment. This is the second branch, otherwise known as
auction of the property for an amount in excess of the balance of the collateral estoppel or estoppel by verdict. This applies where,
loan account. The bank also alleged that the spouses are barred by res between the first case wherein judgment is rendered and the second
judicata form filing the second complaint for the same causes of action case wherein such judgment is involved, there is no identity of causes of
even if additional defendants were impleaded. Consequently, they were action. As explained by this Court:
also guilty of forum shopping. Perez and Ragua filed a motion to dismiss
on similar grounds. It has been held that in order that a judgment in one action can be
conclusive as to a particular matter in another action between the
The RTC denied the motions, ruling that there was no identity of issue in same parties or their privies, it is essential that the issues be
the 2 actions because the second complaint assailed the legality of the identical. If a particular point or question is in issue in the second action,
extrajudicial foreclosure, on the sole ground that the bank had unlawfully and the judgment will depend on the determination of that particular
increased their obligation, contrary to the terms and conditions of the point or question, a former judgment between the same parties will be
loan contract. The court held that the causes of action in the 2 final and conclusive in the second if that same point or question was in
complaints were not identical: in the first case, it was for the issue and adjudicated in the first suit; but the adjudication of an issue in
redemption of the mortgaged property, distinct and separate from the first case is not conclusive of an entirely different and distinct issue
their cause of action in the second case which is rooted on the arising in the second. In order that this rule may be applied, it must
erroneous computation of the balance of their loan account with clearly and positively appear, either from the record itself or by the
the bank. aid of competent extrinsic evidence that the precise point or
question in issue in the second suit was involved and decided in
The defendants filed an MR but it was denied. They filed a petition for the first. And in determining whether a given question was an issue in
certiorari, prohibition and mandamus to the CA. The CA dismissed the the prior action, it is proper to look behind the judgment to ascertain
petition and affirmed the RTC orders. whether the evidence necessary to sustain a judgment in the
second action would have authorized a judgment for the same
SC: The second complaint is barred by res judicata. Section 49(b) party in the first action.
enunciates the first concept of res judicata, known as bar by prior
judgment or estoppel by judgment, which refers to a theory or matter
Remedial Law Review I – Civil Procedure
If indeed the bank made an erroneous computation of the balance of the use of diligence the plaintiffs could have raised therein but failed to
their account as claimed by the private respondents in their second do so, they are barred by res judicata. Nor do legal theories operate to
complaint, this should have been alleged in the first complaint as one of constitute a cause of action. New legal theories do not amount to a new
their causes of action. They failed to do so. The private respondents cause of action so as to defeat the application of the principle of res
unequivocably admitted in their first complaint that the balance of their judicata.
account with the bank was P4,500,000.00 which was the precise amount
for which the bank sought the foreclosure of the real estate mortgage Hao vs Andres: Kenneth Hao is one of the defendants in a civil case for
and the sale of the property at public auction; they even sought judicial replevin pending before the RTC. Judge Renato Fuentes issued an
recourse to enable them to redeem the property despite the lapse of the Order of Seizure against 22 motor vehicles allegedly owned by Hao. On
one-year period therefor. the strength of the said order, Abe Andres, Sheriff of RTC, was able to
seize 9 motor vehicles on different dates.
Relying on these admissions on the part of the private respondents, and
the fact that the bank has already consolidated its title over the property, In his Affidavit-Complaint against Andres before the Office of the Court
the Court thus dismissed their first complaint. The Order of the Court Administrator (OCA), Hao alleged that Andres gave undue advantage to
dismissing the first complaint is a judgment of the case on the merits. Zenaida Silver in the implementation of the order and that Andres seized
the 9 motor vehicles in an oppressive manner. Hao also averred that
The attempt of the respondents in their second complaint to avoid the Andres was accompanied by unidentified armed personnel on board a
application of the principle of res judicata by claiming the nature of their military vehicle which was excessive since there were no resistance
account on the ground therefor and their legal theory cannot prosper. from them. Hao also discovered that the compound where the seized
Case law has it that where a right, question or fact is distinctly put in motor vehicles were placed is actually owned by Silver.
issue and directly determined by a court of competent jurisdiction in a
first case, between the same parties or their privies, the former In view of the approval of Hao‘s counter-replevin bond, Judge
adjudication of that fact, right or question is binding on the parties or Emmanuel Carpio ordered Andres to immediately cease and desist from
their privies in a second suit irrespective of whether the causes of action further implementing the order of seizure, and to return the seized motor
are the same. The ruling of the CA that the action of the private vehicles including its accessories to their lawful owners. However, 8 of
respondents and their legal theory in their second complaint were the 9 seized motor vehicles were reported missing. Andres narrated that
different from their causes of action and legal theory in the first complaint PO3 Rodrigo Despe, one of the policemen guarding the motor vehicles,
is not correct. A different cause of action is one that proceeds not only reported to him that "Nonoy" entered the compound and caused the
on a sufficiently different legal theory, but also on a different factual duplication of the vehicles' keys.
footing as not to require the trial of facts material to the former suit; that
is, an action that can be maintained even if all disputed factual issues Subsequently, Hao reported that 3 of the carnapped vehicles were
raised in the plaintiff‘s original complaint are concluded in defendant‘s recovered by the police. He then accused Andres of conspiring and
favor. conniving with Atty. Oswaldo Macadangdang (Silver's counsel) and the
policemen in the carnapping of the motor vehicles. Hao also accused
In this case, the private respondents‘ second complaint cannot be Andres of concealing the depository receipts from them and pointed out
maintained without trying the facts material to the first case, and the that the depository receipts show that Silver and Atty. Macadangdang
second case cannot be maintained if all the disputed factual issues were the ones who chose the policemen who will guard the motor
raised in the first complaint are considered in favor of the bank. vehicles.

The principle of res judicata applies when the opportunity to raise After the OCA recommended that the matter be investigated, we
an issue in the first complaint exists but the plaintiff failed to do so. referred the case to Executive Judge Renato Fuentes for investigation,
Indeed, if the pleading of a different legal theory would have convinced report and recommendation. Judge Fuentes found Andres guilty of
the trial court to decide a particular issue in the first action which, with
Remedial Law Review I – Civil Procedure
serious negligence in the custody of the 9 motor vehicles. He OCA disagreed with the observations of Judge Fuentes. It
recommended that Andres be suspended from office. recommended that Andres be held liable only for simple neglect of duty.

Judge Fuentes found numerous irregularities in the implementation of SC: We adopt the recommendation of the investigating judge.
the writ of replevin/order of seizure, to wit: (1) at the time of the
implementation of the writ, Andres knew that the vehicles to be seized Being an officer of the court, Andres must be aware that there are well-
were not in the names of any of the parties to the case; (2) one vehicle defined steps provided in the Rules of Court regarding the proper
was taken without the knowledge of its owner,Junard Escudero; (3) implementation of a writ of replevin and/or an order of seizure. The
Andres allowed Atty. Macadangdang to get a keymaster to duplicate the Rules is explicit on the duty of the sheriff in its implementation. To
vehicles' keys in order to take 1 motor vehicle; and (4) Andres admitted recapitulate what should be common knowledge to sheriffs, the pertinent
that prior to the implementation of the writ of seizure, he consulted Silver provisions of Rule 60, of the Rules of Court are quoted hereunder:
and Atty. Macadangdang regarding the implementation of the writ and
was accompanied by the latter in the course of the implementation. SEC. 4. Duty of the sheriff. Upon receiving such order, the sheriff must
Judge Fuentes observed that the motor vehicles were speedily seized serve a copy thereof on the adverse party, together with a copy of the
without strictly observing fairness and regularity in its implementation. application, affidavit and bond, and must forthwith take the property, if it
be in the possession of the adverse party, or his agent, and retain it in
Anent the safekeeping of the seized motor vehicles, Judge Fuentes his custody. If the property or any part thereof be concealed in a building
pointed out several instances where Andres lacked due diligence to wit: or enclosure, the sheriff must demand its delivery, and if it be not
(1) the seized motor vehicles were placed in a compound surrounded by delivered, he must cause the building or enclosure to be broken open
an insufficiently locked see-through fence; (2) 3 motor vehicles were left and take the property into his possession. After the sheriff has taken
outside the compound; (3) Andres turned over the key of the gate to the possession of the property as herein provided, he must keep it in a
policemen guarding the motor vehicles; (4) Andres does not even know secure place and shall be responsible for its delivery to the party entitled
the full name of the owner of the compound, who was merely known to thereto upon receiving his fees and necessary expenses for taking and
him as "Gloria"; (5) except for PO3 Despe and SPO4 Nelson Salcedo, keeping the same.
the identities of the other policemen tapped to guard the compound were
unknown to Andres; (6) Andres also admitted that he only stayed at least SEC. 6. Disposition of property by sheriff. - If within five (5) days after
one hour each day from October 19-21, 2005 during his visits to the the taking of the property by the sheriff, the adverse party does not
compound; and (7) even after it was reported to him that a certain object to the sufficiency of the bond, or of the surety or sureties thereon;
"Nonoy" entered the compound and duplicated the keys of the motor or if the adverse party so objects and the court affirms its approval of the
vehicles, he did not exert his best effort to look for that "Nonoy" and to applicant's bond or approves a new bond, or if the adverse party
confiscate the duplicated keys. requires the return of the property but his bond is objected to and found
insufficient and he does not forthwith file an approved bond, the property
Judge Fuentes also observed that Andres appeared to be more or less shall be delivered to the applicant. If for any reason the property is not
accommodating to Silver and her counsel but hostile and uncooperative delivered to the applicant, the sheriff must return it to the adverse party.
to the complainant. He pointed out that Andres depended solely on
Silver in the selection of the policemen who would guard the seized First, the rules provide that property seized under a writ of replevin is not
motor vehicles. He added that even the depository receipts were not to be delivered immediately to the plaintiff.22 In accordance with the said
turned over to the defendants/third-party claimants in the replevin case rules, Andres should have waited no less than five days in order to give
but were in fact concealed from them. Andres also gave inconsistent the complainant an opportunity to object to the sufficiency of the bond or
testimonies as to whether he has in his possession the depository of the surety or sureties thereon, or require the return of the seized
receipts. motor vehicles by filing a counter-bond. This, he failed to do.

Remedial Law Review I – Civil Procedure

Records show that Andres took possession of two of the subject motor Second, it must be stressed that from the moment an order of delivery in
vehicles on October 17, 2005, four on October 18, 2005, and another replevin is executed by taking possession of the property specified
three on October 19, 2005. Simultaneously, as evidenced by the therein, such property is in custodia legis. As legal custodian, it is
depository receipts, on October 18, 2005, Silver received from Andres Andres' duty to safekeep the seized motor vehicles. Hence, when he
six of the seized motor vehicles, and three more motor vehicles on passed his duty to safeguard the motor vehicles to Silver, he committed
October 19, 2005. Consequently, there is no question that Silver was a clear neglect of duty.
already in possession of the nine seized vehicles immediately after
seizure, or no more than three days after the taking of the vehicles. Third, we are appalled that even after PO3 Despe reported the
Thus, Andres committed a clear violation of Section 6, Rule 60 of the unauthorized duplication of the vehicles' keys, Andres failed to take extra
Rules of Court with regard to the proper disposal of the property. precautionary measures to ensure the safety of the vehicles. It is
obvious that the vehicles were put at risk by the unauthorized duplication
It matters not that Silver was in possession of the seized vehicles merely of the keys of the vehicles. Neither did he immediately report the incident
for safekeeping as stated in the depository receipts. The rule is clear that to the police or to the court. The loss of the motor vehicles could have
the property seized should not be immediately delivered to the plaintiff, been prevented if Andres immediately asked the court for an order to
and the sheriff must retain custody of the seized property for at least five transfer the vehicles to another secured place as soon as he discovered
days.23 Hence, the act of Andres in delivering the seized vehicles the unauthorized duplication. Under these circumstances, even an
immediately after seizure to Silver for whatever purpose, without ordinary prudent man would have exercised extra diligence. His warning
observing the five-day requirement finds no legal justification. to the policemen to closely watch the vehicles was insufficient. Andres
cannot toss back to Silver or to the policemen the responsibility for the
In Pardo v. Velasco, this Court held that: 'Respondent as an officer of loss of the motor vehicles since he remains chiefly responsible for their
the Court is charged with certain ministerial duties which must be safekeeping as legal custodian thereof. Indeed, Andres' failure to take
performed faithfully to the letter. Every provision in the Revised Rules of the necessary precaution and proper monitoring of the vehicles to
Court has a specific reason or objective. In this case, the purpose of the ensure its safety constitutes plain negligence.
five (5) days is to give a chance to the defendant to object to the
sufficiency of the bond or the surety or sureties thereon or require the Fourth, despite the cease and desist order, Andres failed to return the
return of the property by filing a counterbond.' motor vehicles to their lawful owners. Instead of returning the motor
vehicles immediately as directed, he opted to write Silver and demand
In Sebastian v. Valino, this Court reiterated that: Under the Revised that she put up an indemnity bond to secure the third-party claims.
Rules of Court, the property seized under a writ of replevin is not to be Consequently, due to his delay, the eventual loss of the motor vehicles
delivered immediately to the plaintiff. The sheriff must retain it in his rendered the order to return the seized vehicles ineffectual to the
custody for five days and he shall return it to the defendant, if the latter, prejudice of the complaining owners.
as in the instant case, requires its return and files a counterbond.'
It must be stressed that as court custodian, it was Andres' responsibility
Likewise, Andres' claim that he had no knowledge that the compound is to ensure that the motor vehicles were safely kept and that the same
owned by Silver fails to convince us. Regardless of who actually owns were readily available upon order of the court or demand of the parties
the compound, the fact remains that Andres delivered the vehicles to concerned. Specifically, sheriffs, being ranking officers of the court and
Silver prematurely. It violates the rule requiring him to safekeep the agents of the law, must discharge their duties with great care and
vehicles in his custody. The alleged lack of facility to store the seized diligence. In serving and implementing court writs, as well as processes
vehicles is unacceptable considering that he should have deposited the and orders of the court, they cannot afford to err without affecting
same in a bonded warehouse. If this was not feasible, he should have adversely the proper dispensation of justice. Sheriffs play an important
sought prior authorization from the court issuing the writ before role in the administration of justice and as agents of the law, high
delivering the vehicles to Silver. standards of performance are expected of them.29 Hence, his failure to

Remedial Law Review I – Civil Procedure

return the motor vehicles at the time when its return was still feasible conspired with any of the parties to a case to obtain a favorable
constitutes another instance of neglect of duty. judgment or immediate execution. The sheriff is at the front line as
representative of the judiciary and by his act he may build or
Good faith on the part of Andres, or lack of it, in proceeding to properly destroy the institution.
execute his mandate would be of no moment, for he is chargeable with
the knowledge that being an officer of the court tasked therefor, it
behooves him to make due compliance. He is expected to live up to the
exacting standards of his office and his conduct must at all times be RULE 40: APPEAL FROM MUNICIPAL TRIAL COURTS TO THE
characterized by rectitude and forthrightness, and so above suspicion REGIONAL TRIAL COURTS
and mistrust as well.35 Thus, an act of gross neglect resulting in loss of
properties in custodia legis ruins the confidence lodged by the parties to There are two (2) kinds of appeal:
a suit or the citizenry in our judicial process. Those responsible for such 1. notice of appeal
act or omission cannot escape the disciplinary power of this Court. 2. record on appeal

Anent the allegation of grave abuse of authority (oppression), we Time Frames:

likewise agree with the observations of the investigating judge. Records • Notice of Appeal: 15 days after notice to the appellant of the judgment
show that Andres started enforcing the writ of replevin/order of seizure or final order appealed from
on the same day that the order of seizure was issued. He also admitted • Record on Appeal: 30 days after notice of the judgment or final order
that he took the vehicles of persons who are not parties to the replevin
case. He further admitted that he took one vehicle belonging to Junard Why is it that the rule allows a 30-day period for a record on
Escudero without the latter's knowledge and even caused the duplication appeal? Because this refers to multiple appeals. Aside from that, the
of its keys in order that it may be taken by Andres. Certainly, these are rule requires that you have to attach pertinent documents or records of
indications that Andres enforced the order of seizure with undue haste the case relative to the issue on appeal.
and without giving the complainant prior notice or reasonable time to
deliver the motor vehicles. Hence, Andres is guilty of grave abuse of In the Rules of Court, there are several multiple appeals. In Special Civil
authority (oppression). Actions, you find that in Rule 67 (Expropriation) and Rule 69 (Partition).
But a classic example of multiple appeals is settlement of estate,
When a writ is placed in the hands of a sheriff, it is his duty, in the especially if there is a will where you will start with probate of a will.
absence of any instructions to the contrary, to proceed with Every part there is a final order. If you start with the will, once it is
reasonable celerity and promptness to execute it according to its probated, the order probating a will is a final order which is appealable.
mandate. However, the prompt implementation of an order of The next step is appointment of executor/administrator. Again, that is a
seizure is called for only in instances where there is no question final order which you can appeal. Next you submit an inventory and
regarding the right of the plaintiff to the property. Where there is accounting after 1 year which are again final orders. Then you move to
such a question, the prudent recourse for Andres is to desist from partition and distribution which is again a final order.
executing the order and convey the information to his judge and to
the plaintiff. Suppose you appeal the appointment of an executor, the records remain
with the trial court. What you will (send?) to the appellate court are only
True, sheriffs must comply with their mandated ministerial duty to those matters concerning the issue of appointing an executor. You will
implement writs promptly and expeditiously, but equally true is the have to prepare documents, evidence, testimony, etc. so it will take
principle that sheriffs by the nature of their functions must at all some time. That‘s why the rule even allows a joint record on appeal.
times conduct themselves with propriety and decorum and act
above suspicion. There must be no room for anyone to conjecture A record on appeal is already available in the lower court (MTC)
that sheriffs and deputy sheriffs as officers of the court have because of RA 7691. Estate proceedings may now be taken cognizance
Remedial Law Review I – Civil Procedure
by a lower court depending on the gross value of the estate (300K or
below/400K or below, MTC; above that, RTC). Upon elevation of the records from the MTC to the RTC, the RTC, thru
When you file a notice of appeal with the MTC, when is that appeal its clerk of court, must issue a notice to the appellant who may either be
perfected? In Rule 40, you make a cross reference to Sec. 9, Rule 41 plaintiff-appellant of defendant-appellant. Upon that notification, the
which provides the perfection of appeal and the expiration of a period to appellant will submit a memorandum of appeal within a period of 15
appeal. days, copy furnished to the appellee who has the same period of time
within which to file/submit an appellee‘s memorandum. On the basis of
Section 9. Perfection of appeal; effect thereof. — A party's appeal by these memoranda, the court will render judgment, unless one of them
notice of appeal is deemed perfected as to him upon the filing of the would file a Reply memorandum which is not required. If a memorandum
notice of appeal in due time. for the appellant is not filed, it will amount to a dismissal. If there is no
filing of a appellee‘s memorandum, a decision will be rendered by the
A party's appeal by record on appeal is deemed perfected as to him with court. It cannot be dismissed because the appellant filed a
respect to the subject matter thereof upon the approval of the record on memorandum.
appeal filed in due time.
If the decision of the MTC is affirmed by the RTC, you go up to the CA
In appeals by notice of appeal, the court loses jurisdiction over the case by petition for review under Rule 42.
upon the perfection of the appeals filed in due time and the expiration of
the time to appeal of the other parties. New Provision: Sec. 8, Rule 40

In appeals by record on appeal, the court loses jurisdiction only over the Section 8. Appeal from orders dismissing case without trial; lack of
subject matter thereof upon the approval of the records on appeal filed in jurisdiction. — If an appeal is taken from an order of the lower court
due time and the expiration of the appeal of the other parties. dismissing the case without a trial on the merits, the Regional Trial Court
may affirm or reverse it, as the case may be. In case of affirmance and
In either case, prior to the transmittal of the original record or the record the ground of dismissal is lack of jurisdiction over the subject matter, the
on appeal, the court may issue orders for the protection and Regional Trial Court, if it has jurisdiction thereover, shall try the case on
preservation of the rights of the parties which do not involve any matter the merits as if the case was originally filed with it. In case of reversal,
litigated by the appeal, approve compromises, permit appeals of indigent the case shall be remanded for further proceedings.
litigants, order execution pending appeal in accordance with 2 of Rule
39, and allow withdrawal of the appeal. Lack of jurisdiction is a ground for dismissal but the dismissal here may
either be with or without trial on the part of the court. If the case is
This section is important because it applies to all kinds of courts. dismissed by the MTC for lack of jurisdiction, that dismissal is a final
order and so you appeal to the RTC. The RTC, upon taking cognizance
When you file a notice of appeal with the clerk of court, the appeal is of the appeal, may either affirm or reverse the order of dismissal. If it
perfected upon filing of the notice of appeal as far as the appellant is affirms the order of dismissal because the lower court has no
concerned. But the court does not lose jurisdiction over the case jurisdiction, you have to find out whether the RTC has jurisdiction over
because the loss of jurisdiction happens only upon expiration of the the subject matter of the original case (not the appealed case) as it was
period to appeal. filed with the MTC. If it has jurisdiction, instead of throwing out the
complaint, the RTC must take cognizance of it as if it was originally filed
(go back to the example under Jurisdiction, p. 13) therein.

After the filing of the notice of appeal, if it is the MTC, said court has 15 If it is a reversal, the RTC has to remand it to the MTC or await for any
days within which to elevate the records to the RTC. Before the party to file a new action. It can also happen that it was affirmed but it
elevation of the records, the court can still exercise residual jurisdiction. taken cognizance of by the RTC because it has no jurisdiction either.
Remedial Law Review I – Civil Procedure
Rule 41 only differs from Rule 40 in terms of the time frame. The
Example 1: If you file a labor case with the MTC which was dismissed elevation of the record from the RTC to the CA is thirty (30) days.
for lack of jurisdiction and it was appealed to the RTC, the latter court
has no jurisdiction to try the case either. The RTC has to affirm the order When you read Rule 41, you are left hanging because the process is not
of dismissal but it has no jurisdiction. yet done. The continuation of Rule 41 is Rule 44 (Ordinary Appealed
Example 2: Suppose a case was filed with the MTC for the amount of
500K. The MTC has no jurisdiction hence it will dismiss the case. You
then appeal it to the RTC which now has jurisdiction over the amount. As RULE 42: PETITION FOR REVIEW FROM THE REGIONAL TRIAL
such, instead of throwing out the complaint, the RTC takes cognizance COURTS TO THE COURT OF APPEALS
of it as if it was originally filed with it.
This is a kind of appeal from the RTC to the Court of Appeals when the
These inferences seem to be incorrect because an appellate court can former court exercises appellate jurisdiction.
only take cognizance of an appeal when the lower court exercised
original jurisdiction. Otherwise, what the cognizing court exercised would The best example of this rule is an unlawful detainer case because such
in effect be original jurisdiction as well. Sec. 8, Rule 40, however, is the case is originally cognizable by the MTC. Hence you appeal to the RTC
exception. That‘s why this is not in the 1960 Rules of Court. then you go up on a petition for review, in which case you avail of Rule
General Rule: Appellate jurisdiction can only be exercised if the lower
court has original jurisdiction. **This is just a reading matter.**

Exception: Sec. 8, Rule 40

If it has been tried already and it was dismissed, still you appeal it but COURT OF APPEALS
the problem there is that the evidence is already admitted by the lower
court. They remain. They don‘t need to be retaken if there is already The CTA is no longer covered by this rule pursuant to RA 9282 which
trial. elevated said court to the level of the Court of Appeals.

From quasi-judicial bodies, you go up to the CA. This is not by notice of

appeal or by record on appeal but rather, by petition for review.
Pleading-wise, this is the same as Rule 42 as to content of the petition
The RTC here exercises original jurisdiction. for review.

Same rules as Rule 40 with respect to the following: Section 12. Effect of appeal. — The appeal shall not stay the award,
• two (2) kinds of appeal judgment, final order or resolution sought to be reviewed unless the
• notice of appeal (single) Court of Appeals shall direct otherwise upon such terms as it may deem
• record on appeal (multiple) just.
• perfection of appeal (Sec. 9, Rule 41)
• loss of jurisdiction This means that the appeal does not stop the proceeding. In other
• expiration of the period to appeal words, you can have the judgment executed. That is why what you have
to do is to pray for injunctive relief under Rule 58 (Preliminary
Injunction), absence of which, execution will follow.
Remedial Law Review I – Civil Procedure
relating thereto in sufficient detail to make it clearly intelligible, with
As to Section 1 of this rule, there is no need to memorize because the page references to the record;
enumeration is not exclusive. Just remember the five (5) tribunals whose 2. A clear and concise statement of the issues of fact or law to be
decisions and final orders must go up only to the Supreme Court. All the submitted, to the court for its judgment;
rest is with the CA.
1) Under the heading "Argument," the appellant's arguments on each
assignment of error with page references to the record. The
RULE 44: ORDINARY APPEALED CASES authorities relied upon shall be cited by the page of the report at
which the case begins and the page of the report on which the citation
Note that upon elevation of the records from the RTC to the CA, the CA is found;
will notify also the appellant that the records are already with them. Upon
this notice, the appellant is supposed to submit an appellant‘s brief. Rule 1) Under the heading "Relief," a specification of the order or judgment
44 tells you as to what should constitute an appellant‘s brief which is which the appellant seeks; and
1. In cases not brought up by record on appeal, the appellant's brief
Section 7. Appellant's brief. — It shall be the duty of the appellant to shall contain, as an appendix, a copy of the judgment or final order
file with the court, within forty-five (45) days from receipt of the notice of appealed from.
the clerk that all the evidence, oral and documentary, are attached to the
record, seven (7) copies of his legibly typewritten, mimeographed or On the basis of Sec. 13, this order must be strictly followed:
printed brief, with proof of service of two (2) copies thereof upon the subject index
appellee. statement of the case
statement of the facts
Section 13. Contents of appellant's brief. — The appellant's brief shall issues
contain, in the order herein indicated, the following: argumentations
1. A subject index of the matter in the brief with a digest of the
arguments and page references, and a table of cases alphabetically Non-compliance with this order is a ground for dismissal pursuant to
arranged, textbooks and statutes cited with references to the pages Sec.1(f), Rule 50.
where they are cited;
Section 1. Grounds for dismissal of appeal. — An appeal may be
1. An assignment of errors intended to be urged, which errors shall be dismissed by the Court of Appeals, on its own motion or on that of the
separately, distinctly and concisely stated without repetition and appellee, on the following grounds:
numbered consecutively;
xxx xxx xxx
1. Under the heading "Statement of the Case," a clear and concise
statement of the nature of the action, a summary of the proceedings, 3. Absence of specific assignment of errors in the appellant's brief, or of
the appealed rulings and orders of the court, the nature of the page references to the record as required in section 13, paragraphs
judgment and any other matters necessary to an understanding of the (a), (c), (d) and (f) of Rule 44;
nature of the controversy with page references to the record;
xxx xxx xxx
2. Under the heading "Statement of Facts," a clear and concise When the CA notifies you to file an appellant‘s brief, you have to go to
statement in a narrative form of the facts admitted by both parties the CA and look over the records of the case. Don‘t rely on your own
and of those in controversy, together with the substance of the proof records because the basis of your appellant‘s brief must be the official
Remedial Law Review I – Civil Procedure
records of the case which are now with the CA. You will note from Rule • Commission on Elections
41 that before the RTC clerk of court transmits the records to the CA, • Regional Trial Courts
they must be arranged chronologically and paged accordingly. That is
the provision of the rule. If you have the copy of the records of the case, In the first five (5) tribunals, there is no other way but to elevate to the
it bears no paging. Supreme Court. Therefore, what is crucial in Rule 45 is the appeal from
the RTC. As a general rule, no case must go directly to the Supreme
Example: You have a copy of the TSN which consists of 105 pages. If Court. It must always follow the principle of hierarchy of courts.
you look over the records of the case as transmitted to the clerk of court
of the CA, you will see that your pages 1-50 are not necessarily In Rule 45, it is provided that a decision or final order of the Regional
numbered the in same way as the official records. If you are preparing Trial Court bypasses the CA and goes up directly to the Supreme Court.
your appellant‘s brief, you make notations/foot notes. If your foot notes But the limitation is pure question of law so that if you avail of the wrong
will follow the paging in your own copy, said notations will not match the appeal, there is no remand or transmittal under the present rule. It
records of the case such that when the judge reads your brief and finds should be outright dismissal.
that your references are not correct, he will simply dismiss your case.
If you go up to the Supreme Court and you raise questions of fact, it
Trivia: The ordinary market price now for an appellant’s brief is would amount to a dismissal. This has the same effect even if you raise
P50,000.00. questions of fact together with questions of law. The issue is what is a
question of law and what is a question of fact.
Under Rule 44, upon receipt of your notice, you have forty-five (45) days
to prepare an appellant‘s brief (Sec. 7, Rule 44), copy furnished the As a general rule, a question of fact requires the presentation of
appellee who has the same period within which to file his appellee‘s evidence whereas a question of law is simply the determination of what
brief. The appellant, if he wants to, within twenty (20) days from receipt the law in a particular situation is applicable.
of the appellee‘s brief, may submit a reply brief.
For purposes of the bar, there are three (3) exceptions and they are the
Section 8. Appellee's brief. — Within forty-five (45) days from receipt remedies against a decision of the following:
of the appellant's brief, the appellee shall file with the court seven (7) 2. Writ of Amparo (2007)
copies of his legibly typewritten, mimeographed or printed brief, with 3. Writ of Habeas Data (2008)
proof of service of two (2) copies thereof upon the appellant. 4. Writ of Kalikasan (2012)

Section 9. Appellant's reply brief. — Within twenty (20) days from These prerogative writs are also appealable to the Supreme Court under
receipt of the appellee's brief, the appellant may file a reply brief Rule 45 but on both questions of fact and law.
answering points in the appellee's brief not covered in his main brief.
Note: This is not given in the bar but may come in handy in practice. RESOLUTIONS

Section 1. Coverage. — This Rule shall govern the annulment by the

RULE 45: APPEAL BY CERTIORARI TO THE SUPREME COURT Court of Appeals of judgments or final orders and resolutions in civil
actions of Regional Trial Courts for which the ordinary remedies of new
This is an appeal from the following tribunals: trial, appeal, petition for relief or other appropriate remedies are no
• Court of Appeals longer available through no fault of the petitioner.
• Sandiganbayan
• Court of Tax Appeals (en banc) Annulment of judgments is also an equitable remedy. In fact, this is
• Commission on Appointments resorted to only when you were not able to avail all the other remedies
Remedial Law Review I – Civil Procedure
against a final judgment namely, new trial, reconsideration, appeal, and again. Rather, it is only for those which are relevant to the issues that
even petition for relief. It appears from Mesina v. Meer, even before you have been set aside.
can avail of annulment of judgment, you first have to apply for petition for
relief from judgment. In the case of annulment of judgment, what is the effect if it is
granted? It renders the questioned judgment null and void.
Note: Do not confuse an equitable remedy from prerogative remedies
which talk of prerogative writs: Writ of Amparo, Writ of Habeas Data, and Section 7. Effect of judgment. — A judgment of annulment shall set
Writ of Kalikasan. aside the questioned judgment or final order or resolution and render the
same null and void, without prejudice to the original action being refiled
Rule 47 is the last remedy against an executory judgment. in the proper court. However, where the judgment or final order or
resolution is set aside on the ground of extrinsic fraud, the court may on
What are the grounds? motion order the trial court to try the case as if a timely motion for new
1. extrinsic fraud trial had been granted therein.
2. lack of jurisdiction
Which court has jurisdiction over such action? An action to annul a
Section 2. Grounds for annulment. — The annulment may be based judgment or final order of a Municipal Trial Court shall be filed in the
only on the grounds of extrinsic fraud and lack of jurisdiction. Regional Trial Court having jurisdiction over the former. If it is an action
to annul the judgment of the RTC, it is filed with the CA. This exclusive
Extrinsic fraud shall not be a valid ground if it was availed of, or could and original jurisdiction is also in RA 7691.
have been availed of, in a motion for new trial or petition for relief.
Annulment of judgments of RTCs are exclusively and originally
What is important is to consider the requirement that you can only avail cognizable by the Court of Appeals. But you can also seek for the
of this when you were not able to avail of the precedent remedies and annulment of decisions, final orders, and resolution of the lower courts
you are not at fault for not availing of them. Otherwise, you cannot avail but the jurisdiction there is with the RTC.
of annulment of judgments.
How about if you seek to annul the judgment of quasi-judicial
bodies? Which court has jurisdiction? The decisions, resolutions,
What are the limitations? and judgments of quasi-judicial bodies are not subject to annulment.
• extrinsic fraud: action must be filed within four (4) years from its Therefore, you cannot file a petition or an action for annulment of
discovery judgments of quasi-judicial bodies. There is no such remedy. Your only
• lack of jurisdiction: before it is barred by laches or estoppel remedy is limited to Rule 43 which is a petition for review before the
Court of Appeals.
Section 3. Period for filing action. — If based on extrinsic fraud, the
action must be filed within four (4) years from its discovery; and if based **Rules 48-51 are just reading matters.**
on lack of jurisdiction, before it is barred by laches or estoppel.

Note that the effect of these two (2) remedies against an executory
judgment are different.

If you are granted petition for relief from judgment (Rule 38), what
happens? The judgment is set aside or vacated then you have trial de
novo. Take note that this trial is not the presentation of the case all over

Remedial Law Review I – Civil Procedure