NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R.

GATCHALIAN

Substantive law Procedural law proceedings are required

Part of the law which creates Refers to the adjective laws unless prescribed by the
rights concerning life, liberty rules and forms of procedure statute.
or property, or the powers of in order that courts may able
instrumentalities for the to administer justice. In what cases not applicable
administration of public SEC 4. These Rules shall not apply to election
affairs cases, land registration, cadastral, naturalization and
It creates, defines and Prescribes the method of insolvency proceedings, and other cases not herein
regulates rights enforcing rights or obtains provided for, except by analogy or in a suppletory
redress for their invasion character and whenever practicable and convenient.
Construction
RULE 1™ SEC 6. These Rules shall be liberally construed in
order to promote their objective of securing a just,
Cases governed speedy, and inexpensive disposition of every action
SEC 3. These Rules shall govern the procedure to be and proceeding.
observed in actions, civil or criminal, and special
proceedings. RULE 2
a. Civil action is one by which a party sues Cause of Action
another for the enforcement or protection of a
right, or the prevention or redress of a wrong. Ordinary civil actions, basis of
SEC1. Every ordinary civil action must be based on a
A civil action may either be ordinary or cause of action.
special. Both are governed by the rules for
ordinary civil actions, subject to the specific Cause of action, defined
rules prescribed for a special civil action. SEC 2. A cause of action is the act or omission by
which a party violates a right of another.
b. Criminal action is one by which the State
prosecutes a person for an act or omission
In determining the existence of cause of action,
punishable by law. only the statements in the complaint may be
c. Special proceeding is a remedy by which a properly considered.
party seeks to establish a status, a right, or a
particular fact.
Annexes to the complaint may be considered in
determining whether or not a complaint states a
ACTIONS SPECIAL PROCEEDINGS cause of action because such annexes are
The purpose is to enforce a The purpose of a special considered parts of the complaint.
right or prevent or redress proceeding is to establish a
a wrong if the action is civil status, a right or a particular One suit for a single cause of action
or to prosecute a person fact. SEC 3. A party may not institute more than one suit
for an act or omission for a single cause of action.
punishable by law if the
action is criminal. FAILURE TO STATE A LACK OF CAUSE OF ACTION
It is a formal demand of It is an application to CAUSE OF ACTION
one’s right in a court of establish the status or right Refers to the insufficiency Insufficiency of factual basis
justice. of a party or a particular fact of allegation in the for the action.
where usually no formal pleading
May be raised in a May be raised any time
Motion to Dismiss under
™
Reference – Rule 16
1. The Basic Bar Concepts in Civil Procedure By Dismissal for failure to Dismissal for lack of cause is
Dean Willard Riano & state a cause can be usually made after questions
2. Remedial Law Compendium by Florenz D. made at the earliest of fact have been resolved
Regalado. stages of an action. on the basis of stipulations,
admissions or evidence
Note - The codal provisions are arranged for easy reading presented.
and mark with * to give emphasize to the most common
sources of BAR Questions.
Failure to state a cause of action – means the
plaintiff’s allegations are insufficient for the court
To borrow Prof. A. Domondon “Unauthorized users shall to know that there was a violation of his rights by
the defendant.
be punished by the law of karma and they will not pass
the examination they shall take or be unsuccessful and
Splitting a single cause of action; effect of.
unhappy in life”.

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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

SEC 4. If two or more suits are instituted on the basis but the court may make such orders as may be just to
of the same cause of action, the filing of one or a prevent any plaintiff or defendant from being embarrassed
judgment upon the merits in any one is available as or put to expense in connection with any proceedings in
a ground for the dismissal of the others. which he may have no interest.

Related Provisions Applicability of R3 S6

R16 SEC. 1 e] That there is another action pending between
the same parties for the same cause;
f] That the cause of action is barred by a prior judgment or
by the statute of limitations;

Splitting cause of action is disallowed because it
breeds multiplicity of suits.
1.

It is applicable to complaints, counterclaims, and
cross-claims.
Effects
1. Grounds for dismissal based on litis pendentia
2. Res judicata – if final judgment had been rendered
when the second action is filed, the latter may be
dismissed.

When there are two or more defendants, or two or
more plaintiffs, the causes of action against the
defendants can be joined if there is a compliance
with the rules on joinder of parties.
JURISDICTIONS
Over the Subject Matter

Conferred by law

Requires the payment of docket fees

Objections to jurisdiction over the
subject matter, as a rule may be made at
any stage of the proceedings, even for
the first time on appeal as long as
estoppel by laches does not set it.

Joinder of causes of action
It is determined by the allegations in the

SEC 5. A party may in one pleading assert, in the complaint –
alternative or otherwise, as many causes of action as  For this purpose, the court
shall hypothetically assume
he may have against an opposing party, subject to the
the truth of the averments in
following conditions:
the complaint.
a. The party joining the causes of action shall
comply with the rules on joinder of parties;  The truth or the falsity of the
b. The joinder shall not include special civil claim does not matter for
actions or actions governed by special rules; determining the jurisdiction of
c. Where the causes of action are between the the court because such
same parties but pertain to different venues or matters address in the trial of
jurisdictions, the joinder may be allowed in the the case.
RTC provided one of the causes of action falls
within the jurisdiction of said court and the
Jurisdiction of the MTC
venue lies therein; and  Not exceeding P300, 000
d. Where the claims in all the causes of action are  Not exceeding P400, 000
principally for recovery of money, the
aggregate amount claimed shall be the test of
The jurisdictional amount are applicable
jurisdiction. to the following
 Admiralty or maritime case
Applicability  Matters of probates - based on

Here the situation is that there is only one plaintiff the gross value of estate.
and one defendant.

In determining the jurisdictional amount
Permissive joinder of parties [R3 SEC 6] do not include the following
1. All persons in whom or  Damages of whatever kind –
2. against whom determine whether or not the
3. any right to relief in respect to or main action is for damages.
4. arising out of the same transaction or
5. series of transactions is alleged to exist, Damages will be considered in
6. whether jointly, severally, or in the alternative, determining the jurisdictional
7. may except as otherwise provided in these Rules, amount when the main action
join as plaintiffs or be joined as defendants in one is for damages.
complaint,
8. where any question of law or However if damages is not the
9. fact common to all such plaintiffs or to all such main action, damages shall be
defendants may arise in the action; excluded.

 Interest
 Attorney’s fees

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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
 Litigation expenses
 Costs
2. Over the Plaintiff & Defendant
Over the plaintiff –

It is acquired when the said plaintiff files
the complaint.

By seeking affirmative relief through the
complaint, there is an implied submission
of the plaintiff’s person to the jurisdiction
of the court.
Over the Defendant –

Voluntary appearance in the action shall
be equivalent to service of summons.

Valid service of summons
 It is important to know the
distinction between action in
personam or an action in
rem/action quasi in rem.
Reasons
1. To know whether or not
jurisdiction over the person of
the defendant is required.
2. To determine the applicable
service of summons.
Determine
1. What kind of action – whether it is in rem/quasi in
rem or action in personam
2. If it is action in personam –
 determine who is the defendant
 Whether a resident of the Philippines or
non-resident
Actions according to the object/ binding effect of the action
ACTION IN PERSONAM
 When directed against a particular defendant so he may
be bound to be liable to the plaintiff.

Jurisdiction over the person of the defendant is
mandatory.
IF THE DEFENDANT IS A RESIDENT OF THE PHILIPPINES and
the ACTION AGAINST HIM IS IN PERSONAM
 Jurisdiction over him is acquired by:
1. SERVICE IN PERSON – Whenever practicable,
the summons shall be served handing a copy
thereof to the defendant in person, or, if he
refuses to receive and sign for it, by tendering
it to him. [Sec.6 Rule 14]
2. SUBSTITUTED SERVICE – If, for justifiable
causes, the defendant cannot be served
within a reasonable time of personal service.
Service may be effected by:
a. Leaving copies of the summons at the
defendant’s residence with some person
of suitable age and discretion then
residing therein, or
b. Leaving the copies at defendant’s office
or regular place of business with some
competent person in charge thereof.
[R14 SEC. 7]

Efforts be exhausted to serve the
defendant in person and such efforts
need be stated in the sheriffs return.
This is required because substituted
service is in derogation of the usual
mode of service.

Failure to comply with the
requirements of substituted service
renders the service in effective.

The requirement is that for the
substituted service to be effective,
the defendant must have a residence
in the Philippines or office or place of
business. Otherwise substituted
service will not be effective.

A residence or regular place of
business is required to effect
substituted service.
3. VOLUNTARY APPEARANCE [R14 S20]

Defendant’s voluntary 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 voluntary
appearance.
Summons by Publication
 As a general rule it will not enable the
court to acquire jurisdiction over the
person of the defendant.
Exceptions to the GR – these are the 2 instances
and no other
1. In any action where the defendant is
designated as an unknown owner, or the
like, or whenever his whereabouts are
unknown and cannot be ascertained by
diligent inquiry, service may, by leave of
court, be effected upon him by
publication in a newspaper of general
circulation and in such places and for
such time as the court may order [R14
S14]
2. When any action is commenced against a
defendant who ordinarily resides within
the Philippines, but who is temporarily
out of it, service may, by leave of court,
be also effected out of the Philippines, as
under the preceding section. [R14 S16]
IF THE DEFENDANT IS A NON- RESIDENT OF THE PHILIPPINES
AND THE ACTION AGAINST HIM IS IN PERSONAM
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
 Jurisdiction over his person is acquired by
1. Service of summons upon him in person
within the Philippines
2. Voluntary appearance of the defendant

Substituted service will not work because he
has neither a residence in the Philippines, nor
a place of business or office.

Other than the above mentioned service of
summons, there is no other way by which
jurisdiction over the person of the defendant
who is a non-resident can be acquired.
Remedy

There are instances when a non-resident
defendant has properties in the Philippines.

If the action is in personam, the remedy is
1. To file the suit and
2. At the same time avail of the
provisional remedy of attachment.
Rule 57 Sec. 1 Par. F] Grounds upon
which attachment may issue: In an
action against a party who does not
reside and is not found in the
Philippines, or on whom summons
may be served by publication.

Jurisdiction over the person of the
defendant would no longer be required
when there is a writ of attachment over
the defendant’s property because the
suit has assumed the status of an action
quasi-in rem which merely requires
jurisdiction over the res.

Summons by publication or other modes
of extraterritorial service is now available
and the suit can now proceed despite the
absence of the defendant because it
would now be the property which would
be the object of judicial power.
ACTION IN REM/QUASI IN REM

What is required is jurisdiction over the res.

Proceeding may continue as long as there is
jurisdiction over the res but the recourse of the
plaintiff would only be against the property.

Hence the plaintiff cannot recover any deficiency in
the property because the recovery of deficiency is
a recovery of a sum of money, which by its nature
in an action in personam.

If the defendant is in the Philippines, the better
move is to have the defendant summon in the
manner provided for the defendant in an action in
personam even if the action is in rem so that
jurisdiction of the court will be acquired not only
over the res but also over the person of the
defendant.

By so doing, the plaintiff’s right to any claim would
not confine to the property but would extend to
claims against the person of the defendant, like
claims for deficiency or damages if any.
Extraterritorial service [R14 Sec. 15]
Requisites
1. Defendant is a non-resident
2. Not found in the Philippines
3. The action is in rem or quasi in rem
Summons may be served upon him extraterritorially [4
instances when extraterritorial service is proper]
1. When the action affects the personal status of the
plaintiff
2. When the action relates to, or the subject of which
is, property within the Philippines, in which the
defendant has or claims a lien or interest, actual or
contingent
3. The relief demanded consists, wholly or in part, in
excluding the defendant from any interest in
property located in the Philippines.
4. The defendant non-resident’s property has been
attached within the Philippines
The service may, by leave of court, be effected out of the
Philippines by:
1. Personal service; or
2. By publication in a newspaper of general circulation
in such places and for such time as the court may
order, in which case a copy of the summons and
order of the court shall be sent by registered mail
to the last known address of the defendant, or in
any other manner the court may deem sufficient.

Any order granting such leave shall specify a
reasonable time, which shall not be less than 60
days after notice, within which the defendant must
answer.
3. Over the issues

Power of the court to try and decide
issues raised in the pleadings

Look into the pleadings

GR - It means that the court must only
pass upon issues raised by the parties.
 Exception - When issues not
raised by the pleadings are
tried with the express or
implied consent of the parties,
they shall be treated in all
respects as if they had been
raised in the pleadings [R10
Sec. 5]
4. Over the Res

Important only in action in rem/ quasi in
rem
Error of jurisdiction

Correctible by certiorari
Error of judgment

Correctible by appeal
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

When the error of the court consists in the
appreciation of the facts or evidence adduced.
Error of procedure

Do not affect the court’s jurisdiction and not
reviewable by certiorari.
RULE 4
Venue of Actions

The nature of the action is dependent upon the
allegations of the complaint.
Determined
1. Whether the action is real or personal action
2. After determination apply the rules on venue.

According to the foundation of the action - This is
important for the purpose of determining venue.
1. Personal Action – If it is founded upon an interest
in personal property.

Transitory, i.e., venue depends upon the
residence of the plaintiff or the defendant at
the election of the plaintiff.
2. Real Action – If it is founded upon an interest in
real property.

Local, i.e., venue depends upon the location
of the property involved in litigation.

An action is real when it is founded upon the
privity of real estate. It means the realty is
subject matter of litigation.

To be a real action the matter in litigation
must involve any of the following issues:
1. Title
2. Ownership
3. Possession
4. Or any interest in real property.

Therefore, not every action involving real
property is a real action because the realty
may only be incidental to the subject
matter of the suit.
 GR – although the venue is improper, the venue will
be deemed proper if the defendant does not
object.
 Exception – In cases governed by the Rules on
Summary procedure, the court may dismiss the
case outright on any of the grounds apparent in the
complaint. It may be done motu proprio by the
court.
Venue of real actions.
SEC 1. Actions affecting title to or possession of
real property, or interest therein, shall be
commenced and tried in the proper court which has
jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated.
Forcible entry and detainer actions shall be
commenced and tried in the MTC of the
municipality or city wherein the real property
involved, or a portion thereof, is situated.
Venue of personal actions
SEC 2. All other actions may be commenced and
tried where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or any of
the principal defendants resides, or in case of a
nonresident defendant where he may be found, at
the election of the plaintiff.
Venue of actions against nonresidents
SEC 3. If any of the defendants does not reside and
is not found in the Philippines, and the action affects
the personal status of the plaintiff, or any property of
said defendant located in the Philippines, the action
may be commenced and tried in the court of the
place where the plaintiff resides, or where the
property or any portion thereof is situated or found.
When Rule not applicable
SEC 4. This Rule shall not apply
a. In those cases where a specific rule or law
provides otherwise; or
b. Where the parties have validly agreed in
writing before the filing of the action on the
exclusive venue thereof.
Agreement of the Parties

When the agreement is not restrictive or exclusive,
the stipulated venue becomes an additional venue
aside from the possible venues provided by the
Rules of Court.
RULE 3
Parties to Civil Actions
Parties in interest
SEC. 2. A real party in interest is the party who
stands to be benefited or injured by the judgment in
the suit, or the party entitled to the avails of the suit.
Every action must be prosecuted or defended in the
name of the real party in interest.
Related Provision
RULE 16 SEC. 1 g] That the pleading asserting the claim
states no cause of action

A violation of this rule will result in the dismissal of
the complaint for failure to state a cause of action.
Compulsory joinder of indispensable parties
SEC. 7. Parties in interest without whom no final
determination can be had of an action shall be joined
either as
1. plaintiffs or
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
2. defendants.
Necessary party
SEC. 8. A Necessary party is one who is not
indispensable but
1. who ought to be joined as a party if complete
relief is to be accorded as to those already
parties, or
2. for a complete determination or
3. settlement of the claim subject of the action.
Non-joinder of necessary parties to be pleaded
SEC 9. Whenever in any pleading in which a claim is
asserted a necessary party is not joined,
1. the pleader shall set forth his name, if
known, and
2. shall state why he is omitted.
Should the court find the reason for the
omission
1. unmeritorious,
2. it may order the inclusion of the
omitted necessary party if jurisdiction
over his person may be obtained.
The failure to comply with the order for his
inclusion,
3. without justifiable cause,
4. shall be deemed a waiver of the claim
against such party.
The non-inclusion of a necessary party
1. does not prevent the court from proceeding
in the action, and
2. the judgment rendered therein shall be
without prejudice to the rights of such
necessary party.
Misjoinder and non-joinder of parties
SEC. 11. Neither misjoinder nor non-joinder of parties
is ground for dismissal of an action.
Parties may be dropped or added by order of the court
on motion of any party or on its own initiative at any
stage of the action and on such terms as are just.
Any claim against a misjoined party may be
1. severed and
2. proceeded with separately.
Class suit
SEC 12. When the subject matter of the controversy is
one of common or general interest to many persons so
numerous that it is impracticable to join all as parties,
a number of them which the court finds to be
sufficiently numerous and representative as to fully
protect the interests of all concerned may sue or
defend for the benefit of all.
Any party in interest shall have the right to intervene
to protect his individual interest.
Related Provision
Dismissal upon motion of plaintiff
R17 SEC. 2. Last par. A class suit shall not be dismissed or
compromised without the approval of the court.
Requisites of class suit
1. The subject matter is one of common or general
interest to many person
2. The persons are so numerous that is impracticable
to join all of them as parties.

A taxpayer's suit or a stockholder's derivative suits
are in the nature of a class suit.
Death of party; duty of counsel [SEC 16]
1. Whenever a party to a pending action dies, and
2. the claim is not thereby extinguished,
3. it shall be the duty of his counsel to inform the
court within 30 days after such death of the fact
thereof, and
4. to give the name and address of his legal
representative or representatives.
5. Failure of counsel to comply with this duty shall
be a ground for disciplinary action.
The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the
appointment of an executor or administrator and the
court may appoint a guardian ad litem for the minor
heirs.
The court shall forthwith order said legal
representative or representatives to appear and be
substituted within a period of 30 days from notice.
1. If no legal representative is named by the
counsel for the deceased party, or
2. if the one so named shall fail to appear within
the specified period,
3. the court may order the opposing party, within a
specified time, to procure the appointment of an
executor or administrator for the estate of the
deceased and the latter shall immediately appear
for and on behalf of the deceased.
The court charges in procuring such appointment, if
defrayed by the opposing party, may be recovered as
costs.
Determine if
1. The action is one that survives such as the
following
a. actions to recover real personal
property from the estate;
b. actions to enforce a lien thereon;
c. actions to recover for an injury to
person or property by reason of tort
or delict committed by the deceased.
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

Order of substitution – this is necessary for the
court to acquire jurisdictions over the substitute.
2. If the action does not survive, the court shall
simply dismiss the case.
Action on contractual money claims [SEC 20]
1. When the action is for recovery of money
arising from contract, express or implied, and
2. the defendant dies before the entry of final
judgment in the court in which the action was
pending at the time of such death,
3. it shall not be dismissed but shall instead be
allowed to continue until the entry of final
judgment.
A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially
provided in these Rules for prosecuting claims
against the estate of a deceased person.

It provides that the action shall be allowed to
continue until entry of final judgment – hence there
will be an order of substitution. The provision of Sec.
16 is applicable.
RULE 15
Motions

Motion is an application for relief other than by a
pleading.
 GR – In acting upon a motion, the court issues an
order which may be final or interlocutory.
 There are motions which pray for a judgment on
the merits such as
1. Motion for judgment on the pleadings
2. Motion for summary judgment
 GR - all written motions shall be set for hearing,
even if, that hearing may be conducted on less than
3 days advance notice.
 Exceptions

Non-litigable or non-litigated motions -
those which may be acted upon by the
court without prejudicing the rights of the
adverse party.
Exceptions to the 3-day notice rule
1. Ex parte motions
2. Urgent motions
3. motions agreed upon by the parties to be heard
on shorter notice or jointly submitted by the
parties, and
4. Motion for summary judgment which must be
served at least 10 days before its hearing.
**SEC 5. Notice of hearing. The notice of hearing shall
be addressed to all parties concerned, and shall specify
the time and date of the hearing which must not be later
than 10 days after the filing of the motion.
**SEC 6. Proof of service necessary. No written motion set
for hearing shall be acted upon by the court without
proof of service thereof.
RULE 6
Kinds of Pleadings
Pleadings defined
SEC 1. Pleadings are the written statements of the
respective claims and defenses of the parties submitted
to the court for appropriate judgment.
 Pleadings are either
1. Initiatory
2. Non-initiatory.

SEC 2. Motions must be in writing. All motions shall be in
All pleadings are initiatory except
writing except those made in open court or in the course 1. cross claim and
of a hearing or trial. 2. compulsory counterclaim.

SEC 3. Contents. A motion shall state the relief sought to Requirements of an Initiatory Pleading
1. Verification
be obtained and the grounds upon which it is based, and
2. Payment of docket fees
if required by these Rules or necessary to prove facts
3. Certification against forum shopping.
alleged therein, shall be accompanied by supporting
affidavits and other papers. Non-Initiatory Pleadings
1. Verification if applicable
****SEC 4. Hearing of motion. Except for motions which 2. No need of filing fee
the court may act upon without prejudicing the rights of 3. Filed as part of the answer
the adverse party, every written motion shall be set for 4. Subject to waiver.
hearing by the applicant.
PLEADINGS MOTION
Every written motion required to be heard and the notice The relief sought is a The relief sought is an
of the hearing thereof shall be served in such a manner judgment, which by its order that is not included in
as to ensure its receipt by the other party at least 3 days character finally disposes of a judgment
before the date of hearing, unless the court for good the case
cause sets the hearing on shorter notice. May be filed from May be filed at any time
commencement of an action from commencement of
until pre-trial stage action until execution of

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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
the judgment
Pleadings allowed
SEC 2. The claims of a party are asserted in a
complaint, counterclaim, cross-claim, third (fourth,
etc.)- party complaint, or complaint-in-intervention.
The defenses of a party are alleged in the answer to
the pleading asserting a claim against him.
An answer may be responded to by a reply.
Complaint
SEC 3. Complaint is the pleading alleging the
plaintiff's cause or causes of action.
RULE 8
Manner of Making Allegations in Pleadings
SEC 1. Every pleading shall contain in a 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, as the case may be, omitting the
statement of mere evidentiary facts.
If a defense relied on is based on law, the pertinent
provisions thereof and their applicability to him shall be
clearly and concisely stated.
Conditions precedent
**SEC 3. In any pleading a general averment of the
performance or occurrence of all conditions precedent
shall be sufficient.
Fraud, mistake, condition of the mind
***SEC 5. In all averments of fraud or mistake, the
circumstances constituting fraud or mistake must be
stated with particularity.
Malice, intent, knowledge or other condition of the mind
of a person may be averred generally.
Signature and address [*R7 SEC 3]
Every pleading must be signed by the
1. party or
2. counsel representing him,
3. stating in either case his address which should
not be a post office box.
The signature of counsel constitutes a certificate by
him that
1. he has read the pleading;
2. that to the best of his knowledge, information
and belief there is a good ground to support it;
3. and that it is not interposed for delay.
An unsigned pleading produces no legal effect.
However, the court may, in its discretion, allow such
deficiency to be remedied
1. if it shall appear that the same was due to mere
inadvertence and
2. not intended for delay.
Counsel who
1. Deliberately files an unsigned pleading, or
2. Signs a pleading in violation of this Rule, or
3. Alleges scandalous or indecent matter
therein, or
4. Fails to promptly report to the court a change
of his address,
5. shall be subject to appropriate disciplinary
action.
Verification.
*R7 SEC 4. Except when otherwise specifically
required by law or rule, pleadings need not be under
oath, verified or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant
has
1. read the pleading and
2. that the allegations therein are true and correct
of his knowledge and belief.
A pleading required to be verified lacks a proper
verification, shall be treated as an unsigned
pleading.

Absence of verification or non-compliance with
verification requirement does not necessarily render
the pleading defective. It is only a formal and not a
jurisdictional requirement.
Certification against forum shopping [*SEC 5]
1. The plaintiff or
2. principal party
3. shall certify under oath in the complaint or
4. other initiatory pleading asserting a claim for
relief, or
5. in a sworn certification annexed thereto and
simultaneously filed therewith;
a. that he has not therefore commenced any
action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no
such other action or claim is pending therein;
b. if there is such other other pending action or
claim, a complete statement of the present
status thereof; and
c. if he should thereafter learn that the same or
similar action or claim has been filed or is
pending, he shall report that fact within 5 days
therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements
shall not be curable by mere amendment of the
complaint or other initiatory pleading but
1. shall be cause for dismissal of the case without
prejudice,
2. unless otherwise provided,
3. upon motion and after hearing.
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
The submission of a false certification or non-
compliance with any of the undertakings therein shall
constitute
1. indirect contempt of court,
2. without prejudice to the corresponding
administrative and criminal sanctions.
If the acts of the party or his counsel clearly
constitute willful and deliberate forum shopping,
the same shall be
1. ground for summary dismissal with prejudice
and
2. shall constitute direct contempt,
3. as well as a cause for administrative sanctions.

The GR is that the certification is mandatory but not
jurisdictional.

If the plaintiff is a corporation, it should be signed by
any of its authorized directors or officers.
Commencement of Action
*R1 SEC 5. A civil action is commenced by the filing
of the original complaint in court.
If an additional defendant is impleaded in a later
pleading, the action is commenced with regard to him
on the date of the filing of such later pleading,
irrespective of whether the motion for its admission, if
necessary, is denied by the court.
Significant of the filing of the action
1. It enables the court to acquire jurisdiction over the
person of the plaintiff
2. It interrupts the running of the prescriptive period.
Filing

The act of presenting the pleading or other paper to
the clerk of court.
Manner of filing
1. By presenting the original copies thereof,
personally to the clerk of court or
2. By sending them by registered mail - the date of
the mailing shall be considered as the date of their
filing.

When an action is filed, the filing must be
accompanied by the payment of docket fees because
the courts acquires jurisdiction over the case only
upon payment of the prescribed fees.

If fees are not paid at the time of filing, the court
acquires jurisdiction only upon full payment of the
fees within a reasonable time as the court may grant
barring prescriptions.

When the complaint is filed and the prescribed fees
are paid, the action is deemed commenced.
Service

The act of providing a party with a copy of the
pleading or paper concerned. If any party has
appeared by counsel, service upon him shall be made
upon his counsel or one of them, unless service upon
the party himself is ordered by the court.
Modes of Service
1. PERSONAL SERVICE - by delivering personally a
copy to the party or his counsel, or by leaving it in
his office with his clerk or with a person having
charge thereof.
If no person is found in his office, or his office is not
known, or he has no office, then by leaving the
copy, at the party’s or counsel’s residence, if
known, with a person of sufficient age and
discretion then residing therein.
2. SERVICE BY MAIL - by registered mail shall be made
by depositing the copy in the post office.
by ordinary mail - If no registry service is available
in the locality of either the sender or the addressee.
3. SUBSTITUTED SERVICE –The service cannot be
made personally or by mail.
Service may be made by delivering the copy to the
clerk of court, with proof of failure of both personal
service and service by mail. The service is complete
at the time of such delivery.
***Priorities in modes of service and filing

Shall be done personally.

Except with respect to papers emanating from the
court, a resort to other modes must be accompanied
by a written explanation why the service or filing was
not done personally.

A violation of this Rule may be cause to consider the
paper as not filed.
Service of judgments, final orders, or resolutions

Shall be served either personally or by registered
mail.

When a party summoned by publication has failed
to appear in the action, judgments, final orders or
resolutions against him shall be served upon him
also by publication at the expense of the prevailing
party.
RULE 17
Dismissal of Actions
Dismissal upon notice by the plaintiff
SEC 1. A complaint may be dismissed by the plaintiff
by filing a notice of dismissal at any time
1. before service of the answer or
2. a motion for summary judgment.
Upon such notice being filed, the court shall issue an
order confirming the dismissal.
Unless otherwise stated in the notice,
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
1. the dismissal is without prejudice
2. Except that a notice operates as an adjudication
upon the merits when filed by a plaintiff who has
once dismissed in a competent court an action
based on or including the same claim [known as
the two dismissal rule]

The dismissal here is by mere notice.
Dismissal upon motion of plaintiff
*SEC 2. Except as provided in the preceding section,
a complaint shall not be dismissed at the plaintiff's
instance save
1. upon approval of the court and
2. upon such terms and conditions as the court
deems proper.
If a counterclaim has been pleaded by a defendant
prior to the service upon him of the plaintiff's motion
for dismissal,
1. the dismissal shall be without prejudice to the
right of the defendant to prosecute his
counterclaim in a separate action
2. Unless within 15 days from notice of the motion
he manifests his preference to have his
counterclaim resolved in the same action.
Unless otherwise specified in the order, a dismissal
under this paragraph shall be without prejudice.
A class suit shall not be dismissed or compromised
without the approval of the court.
Plaintiff can no longer have his action dismissed by mere
notice
1. After service of the answer or
2. A motion for summary judgment.

Plaintiff must now file a motion for the dismissal of
his complaint. The dismissal is now subject to the
approval of the court.

Sec. 2 does makes no distinction as to the
counterclaim involved, even a compulsory
counterclaim is not deemed dismissed by the
dismissal of the complaint.
Dismissal of counterclaim, cross-claim or third-party claim
SEC 4. The provisions of this Rule shall apply to the
dismissal of any
1. counterclaim,
2. cross-claim, or
3. third-party complaint.
A voluntary dismissal by the claimant by notice as in
section 1 of this Rule, shall be made
1. before a responsive pleading or
2. a motion for summary judgment is served or,
3. if there is none, before the introduction of
evidence at the trial or hearing.
Dismissal due to fault of plaintiff
**SEC 3. If, for no justifiable cause, the plaintiff
1. fails to appear on the date of the presentation
of his evidence in chief on the complaint, or
2. to prosecute his action for an unreasonable
length of time, or
3. to comply with these Rules or any order of the
court,
4. the complaint may be dismissed upon motion
of the defendant or
5. upon the court's own motion,
6. without prejudice to the right of the defendant
to prosecute his counterclaim in the same or in
a separate action.
This dismissal shall have the effect of an
adjudication upon the merits, unless otherwise
declared by the court.
RULE 10
Amended and Supplemental Pleadings
Amendments as a matter of right
*SEC 2. A party may amend his pleading
1. once as a matter of right at any time before a
responsive pleading is served or,
2. in the case of a reply, at any time within 10 days
after it is served.
Related Provision
R11 SEC. 3. Answer to amended complaint. Where the
plaintiff files an amended complaint as a matter of right,
the defendant shall answer the same within 15 days after
being served with a copy thereof.
Where its filing is not a matter of right, the defendant shall
answer the amended complaint within 10 days from notice
of the Order admitting the same. An answer earlier filed
may serve as the answer to the amended complaint, if no
new answer is filed.
This Rule shall apply to the answer to an amended
counterclaim amended cross-claim, amended third (fourth,
etc.)—party complaint, and amended complaint-in-
intervention.
As a matter of right

Amendment of pleading is a matter of right as long
as the said amendment is made before the other
party has serve a responsive pleading.

If the court refuses to accept an amendment made
as a matter of right, the court may be compelled to
do so trough mandamus.

A motion to dismiss is not a responsive pleading.
Amendments by leave of court
***SEC 3. Except as provided in the next preceding
section, substantial amendments may be made only
upon leave of court.
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
But such leave may be refused if it appears to the
court that the motion was made with intent to delay.
Orders of the court upon the matters provided in this
section shall be made upon
1. motion filed in court, and
2. after notice to the adverse party, and
3. an opportunity to be heard.
Related Provision
R15 SEC 9. Motion for leave. A motion for leave to file a
pleading or motion shall be accompanied by the pleading or
motion sought to be admitted.
Jurisprudence adopts a liberal policy on amendments, however
the same will be denied if:
1. Intended for delay
2. It would result in the change of cause of action or
defense change in the theory of the case.
3. When the court has no jurisdiction over the subject
matter of the action and the amendment is for the
purpose of conferring jurisdiction. However, if the
amendment is a matter of right the same may be
allowed.
Effect of amended pleadings
SEC. 8. An amended pleading supersedes the pleading
that it amends.
However, admissions in superseded pleadings may be
received in evidence against the pleader;
and claims or defenses alleged therein not
incorporated in the amended pleading shall be deemed
waived.

Superseded pleading is considered as judicial
admissions.

If the old pleading is amended, it does not follow
that new summons should served.
1. Where the defendant has already
appeared before the court by virtue of
the summons in the original complaint,
[such as filing of the answer] the
amended complaint may be served upon
him without need for another summons
2. If the defendant has not yet appeared he
must be served with summons.
Amendment to conform to or authorize presentation of
evidence
**SEC 5. When issues not raised by the pleadings are
tried with the express or implied consent of the
parties, they shall be treated in all respects as if they
had been raised in the pleadings.
Such amendment of the pleadings as may be necessary
to cause them to conform to the evidence and to raise
these issues may be made upon motion of any party at
any time, even after judgment;
but failure to amend does not affect the result of the
trial of these issues.
If evidence is objected to at the trial on the ground that
it is not within the issues made by the pleadings, the
court may allow the pleadings to be amended and
shall do so with liberality
1. if the presentation of the merits of the action and
2. the ends of substantial justice will be subserved
thereby.
The court may grant a continuance to enable the
amendment to be made.

What if the pleadings are not amended to conform
to the evidence presented? Since the issues have
already been tried with the consent of the parties,
the failure to amend the pleadings does not affect
the result of the trial of such issues. The pleadings
are deemed amended by implication.

The curing effect of amendment under Sec. 5 is
applicable only if a cause of action in fact exists at
the time the complaint is filed, but the complaint is
defective for failure to allege the essential facts.

A complaint whose cause of action has not yet
accrued cannot be cured or remedied by an
amended or supplemental pleading alleging the
existence or accrual of a cause of action while the
case is pending. Reason – a person should not be
summoned before the public tribunals to answer for
complaints which are premature.
Supplemental pleadings
SEC 6. Upon motion of a party the court may, upon
reasonable notice and upon such terms as are just,
permit him to serve a supplemental pleading setting
forth transactions, occurrences or events which have
happened since the date of the pleading sought to be
supplemented.
The adverse party may plead thereto within 10 days
from notice of the order admitting the supplemental
pleading.
Related Provision
Answer to supplemental complaint
R11 SEC. 7. A supplemental complaint may be answered
within 10 days from notice of the order admitting the
same, unless a different period is fixed by the court. The
answer to the complaint shall serve as the answer to the
supplemental complaint if no new or supplemental
answer is filed.
Amended pleading Supplemental pleading
Refer to facts existing at the Refer to facts arising after
time of the commencement the filing of the original
of the action pleading
Results in the withdrawal of Merely in addition to but
the original pleading does not result in the
withdrawal of the original
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

pleading When applied for; purpose.

***SEC 1. Before responding to a pleading, a party
may move for a definite statement or for a bill of
Can be made as a matter of Always with leave of court
particulars of any matter which is not averred with
right, as when no responsive
sufficient definiteness or particularity to enable him
pleading has yet been filed
properly to prepare his responsive pleading.

Supplemental pleading allege facts which occur
after the original pleadings have been filed. If the pleading is a reply, the motion must be filed
within 10 days from service thereof.

It must allege facts pertaining to the original cause
of action in the complaint. Such motion shall point out
1. the defects complained of,

The supplemental pleading must be related to the 2. the paragraphs wherein they are contained, and
original cause of action, if different cause of action 3. the details desired.
the same should not be admitted.
Action by the court
RULE 14 SEC 2. Upon the filing of the motion, the court may
Summons either
1. deny or
SEC 1. Upon the 2. grant it outright, or
1. filing of the complaint and 3. allow the parties the opportunity to be heard.
2. the payment of the requisite legal fees,
3. the clerk of court shall issue the summons to the Effect of non-compliance [SEC 4]
defendants. 1. If the order is not obeyed, or
2. in case of insufficient compliance therewith,
Voluntary appearance 3. the court may order the
***SEC 20. The defendant's voluntary appearance in 4. striking out of the pleading or
the action shall be equivalent to service of summons. 5. the portions thereof to which the order was
directed or
The inclusion in a motion to dismiss of other grounds 6. make such other order as it deems just.
aside from lack of jurisdiction over the person of the
defendant shall not be deemed a voluntary appearance.
The granting of a motion for bill of particulars lies
within the sound discretion of the court and its
Service of summons is required ruling will not be reversed.
1. For the court to acquired jurisdiction over the
person of the defendant Stay of period to file responsive pleading [SEC 5]
2. To comply with the requirements of due process. 1. After service of the bill of particulars or of a
more definite pleading, or
Service upon domestic private juridical entity 2. after notice of denial of his motion,
SEC 11. When the defendant is a 3. the moving party may file his responsive
1. corporation, pleading within the period to which he was
2. partnership or entitled at the time of filing his motion, which
3. association organized under the laws of the shall not be less than 5 days in any event.
Philippines with a juridical personality, service
may be made on the Bill a part of pleading
a. president, SEC 6. A bill of particulars becomes a part of the
b. managing partner, pleading for which it is intended.
c. general manager,
d. corporate secretary, RULE 16
e. treasurer, or Motion to Dismiss
f. in house counsel.
Grounds

A strict compliance with the mode of service is SEC 1. Within the time for but before filing the answer
necessary to confer jurisdiction of the court over a to the
corporation. The officer upon whom service is 1. complaint or
made must be one who is named in the statute; 2. pleading asserting a claim, a motion to dismiss
otherwise the service is insufficient. may be made on any of the following grounds:
a. That the court has no jurisdiction over the
RULE 12 person of the defending party
Bill of Particulars b. That the court has no jurisdiction over the
subject matter of the claim

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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
c. That venue is improperly laid
d. That the plaintiff has no legal capacity to
sue
e. That there is another action pending
between the same parties for the same
cause
f. That the cause of action is barred by a
prior judgment or by the statute of
limitations
g. That the pleading asserting the claim
states no cause of action
h. That the claim or demand set forth in the
plaintiff's pleading has been paid,
waived, abandoned, or otherwise
extinguished
i. That the claim on which the action is
founded is unenforceable under the
provisions of the statute of frauds
j. That a condition precedent for filing the
claim has not been complied with.
Effect of dismissal
SEC 5. Subject to the right of appeal, an order
granting a motion to dismiss based on paragraphs (f),
(h) and (i) of section 1 hereof shall bar the refiling of
the same action or claim.
Related Provisions
Omnibus motion
R15 SEC. 8. Subject to the provisions of section 1
of Rule 9, a motion attacking a pleading, order,
judgment, or proceeding shall include all objections
then available, and all objections not so included
shall be deemed waived.
Defenses and objections not pleaded
R9 SEC 1. Defenses and objections not pleaded
either in a motion to dismiss or in the answer are
deemed waived.
However, when it appears from the pleadings or the
evidence on record that the court has
1. no jurisdiction over the subject matter,
2. that there is another action pending
between the same parties for the same
cause, or
3. that the action is barred by a prior
judgment or
4. by statute of limitations, the court shall
dismiss the claim.

Omnibus motion rule – When a motion to dismiss
is filed, all grounds available at the time the motion
is filed must be invoked in the motion. Grounds not
so invoked are deemed waived.

When a motion to dismiss is not filed, the grounds
for motion to dismiss may be availed of as
affirmative defense in the answer. No defense is
waived because no motion to dismiss was filed.
Pleading grounds as affirmative defense [SEC 6]
1. If no motion to dismiss has been filed,
2. any of the grounds for dismissal provided for
in this Rule may be pleaded as an affirmative
defense in the answer and,
3. in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to
dismiss had been filed.
The dismissal of the complaint under this section shall
be
1. without prejudice to the prosecution in the same
or
2. separate action of a counterclaim pleaded in the
answer.
Hearing of motion
SEC 2. At the hearing of the motion, the parties shall
submit their arguments on the questions of law and
their evidence on the questions of fact involved except
those not available at that time.
Should the case go to trial, the evidence presented
during the hearing shall automatically be part of the
evidence of the party presenting the same.
Resolution of motion
SEC 3. After the hearing, the court may
1. dismiss the action or claim,
2. deny the motion, or
3. order the amendment of pleading.
The court shall not defer the resolution of the
motion for the reason that the ground relied upon is
not indubitable.
In every case, the resolution shall state clearly and
distinctly the reasons therefor.
Time to plead
SEC 4. If the motion is denied, the movant shall file
his answer within the balance of the period prescribed
by Rule 11 to which he was entitled at the time of
serving his motion, but not less than 5 days in any
event, computed from his receipt of the notice of the
denial.
If the pleading is ordered to be amended, he shall file
his answer within the period prescribed by Rule 11
counted from service of the amended pleading, unless
the court provides a longer period.
MOTION TO DISMISS DEMURRER TO EVIDENCE
Grounded on preliminary Based on insufficiency of
objections evidence
May be filed by any May be filed only by the
defending party against defendant against the
whom a claim is asserted in complaint of the plaintiff
the action
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

Should be filed within the May be filed for the dismissal Remedy from the order of default
time for but prior to the filing of the case only after the
Remedies before the judgment by default becomes
of the answer of the plaintiff has completed the final and executory
defending party to the presentation of his evidence 1. Motion for reconsideration of the
pleading asserting the claim, judgment
against him 2. Motion for New Trial
3. Appeal
Declaration of Default

Remedies where the judgment by default became
Default, declaration of final and executory
R9 SEC 3. If the defending party fails to answer 1. Petition for relief
within the time allowed therefor, the court shall, 2. Action to annul the judgment
1. upon motion of the claiming party 3. Petition for certiorari under Rule 65
2. with notice to the defending party, and
3. proof of such failure, declare the defending Effect of partial default
party in default. When a pleading asserting a claim states a
1. common cause of action
Thereupon, the court shall proceed 2. against several defending parties,
1. to render judgment granting the claimant such 3. some of whom answer and the others fail to do
relief as the pleading may warrant, so,
2. unless the court in its discretion requires the 4. the court shall try the case against all upon the
claimant to submit evidence. answers thus filed and render judgment upon
the evidence presented.
Such reception of evidence may be delegated to the
clerk of court. Where no defaults allowed
1. action for annulment or
***Extent of relief, to be awarded 2. declaration of nullity of marriage or
A judgment rendered against a party in default shall 3. for legal separation fails to answer,
1. not exceed the amount or 4. the court shall order the prosecuting attorney to
2. be different in kind from that prayed for investigate whether or not a collusion between
3. nor award unliquidated damages. the parties exists, and if there is no collusion,
to intervene for the State in order to see to it
Effect of order of default that the evidence submitted is not fabricated.
A party in default shall be entitled to notice of
subsequent proceedings, but not to take part in the RULE 34
trial. Judgment on the Pleadings

Relief from order of default Where an answer

A party declared in default may at
1. any time after notice thereof and
2. before judgment file a motion under oath
3. to set aside the order of default
4. upon proper showing that his failure to answer
was due to
a. fraud,
b. accident,
c. mistake or
d. excusable negligence and
e. 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
the interest of justice.
1. fails to tender an issue, or
2. otherwise admits the material allegations of the
adverse party's pleading,
3. the court may, on motion of that party, direct
judgment on such pleading.
However, in actions for declaration of nullity or
annulment of marriage or for legal separation, the
material facts alleged in the complaint shall always be
proved.

The admission arises when
1. There is an actual admission of the
allegations
2. The defendant makes a general denial

The principle of default order do not apply to the Answer

following
1. Where the order of default was invalid
because of lack of or invalid service of
summons.
2. If there is appending motion for
extension to file an answer.
**SEC 4. An answer is a pleading in which a
defending party sets forth his defenses.
Related Provisions
R11 SEC 1. Answer to the complaint. The defendant
shall file his answer to the complaint within 15 days
after service of summons, unless a different period is

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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
fixed by the court.
R11 SEC. 2. Answer of a defendant foreign private
juridical entity. Where the defendant is a foreign private
juridical entity and service of summons is made on the
government official designated by law to receive the
same, the answer shall be filed within 30 days after
receipt of summons by such entity.
Defenses
***SEC 5. Defenses may either be negative or
affirmative.
a. Negative defense is the specific denial of the
material fact or facts alleged in the pleading of
the claimant essential to his cause or causes of
action.
Specific denial
***R8 SEC 10. A defendant must
1. specify each material allegation of fact the
truth of which he does not admit and,
2. whenever practicable, shall set forth the
substance of the matters upon which he
relies upon to support his denial.
Where a defendant desires to deny only a part of
an averment, he shall
1. specify so much of it as is true and material
and
2. shall deny only the remainder.
Where the defendant is without knowledge or
information sufficient to form a belief as to the
truth of a material averment made in the complaint,
he shall so state, and this shall have the effect of a
denial. – NOTE -This type of specific denial must be made
sincerely and in good faith.
Allegations not specifically denied deemed admitted
R8 SEC. 11. Material averment in the complaint,
other than those as to the amount of unliquidated
damages, shall be deemed admitted when not
specifically denied.
Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not denied
under oath.
Action or defense based on document
R8 SEC. 7. Whenever an action or defense is based
upon a written instrument or document,
1. the substance of such instrument or
document shall be set forth in the pleading,
2. 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
pleading, or
3. said copy may with like effect be set forth
in the pleading.
How to contest such documents
R8 SEC. 8. When an action or defense is founded
upon a written instrument, copied in or attached to
the corresponding pleading as provided in the
preceding section, the
1. genuineness and
2. due execution of the instrument shall be
deemed admitted
Unless the adverse party,
1. under oath,
2. specifically denies them, and
3. sets forth what he claims to be the facts;
but the requirement of an oath does not apply
1. when the adverse party does not appear to
be a party to the instrument or
2. when compliance with an order for an
inspection of the original instrument is
refused.
Denial

If the denial is not one of those described, the
denial is deemed to be a general denial – which is
an admission.

Negative pregnant – does not qualify as a specific
denial. It is an admission. Such as when the answer
is a mere repetitions of the allegations

If all the material allegations of the complaint are
denied by way of general denial, the effect is an
admission of those allegations.

Since the allegations are deemed admitted, there is
no more issues between the parties. The plaintiff
may now file a Judgment on the Pleadings.
Actionable document

One which is the basis of either a claim or defense.

R8 S7 - provides for the manner of allegations of
actionable document in the complaint.

R8 S8 – provides for the manner of which the
adverse party desires to contest the document.

Genuineness and due execution – if the same is not
denied under oath, the defendant can no longer
deny that the instrument was forged or that he had
no authority to execute the instrument. These
defenses are deemed waived by the admission.
b. Affirmative defense is an allegation of a new
matter which, while hypothetically admitting
the material allegations in the pleading of the
claimant, would nevertheless prevent or bar
recovery by him.
The affirmative defenses include fraud, statute
of limitations, release, payment, illegality,
statute of frauds, estoppel, former recovery,
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

discharge in bankruptcy, and any other matter R9 SEC. 2. Compulsory counterclaim, or cross-claim, not set
by way of confession and avoidance. up barred. A compulsory counterclaim, or a cross-
claim, not set up shall be barred.
Counterclaim
***SEC 6. Counterclaim is any claim which a Permissive counterclaim/ Compulsory counterclaim/
defending party may have against an opposing party. Set-off Recoupment
Des not arise out of and it is Arise out of or is connected
Cross-claim not connected with the with the transaction or
**SEC 8. Cross -claim is any claim by one party transaction or occurrence occurrence constituting the
against a co-party arising out of the transaction or constituting the subject subject matter of the
occurrence that is the subject matter either of the matter of the opposing opposing party’s claim.
original action or of a counterclaim therein. party’s claim
Not barred even if not set up Barred if not set up
Such cross-claim may include a claim that the party in the answer
against whom it is asserted is or may be liable to the Plaintiff must answer Plaintiff need not answer
cross-claimant for all or part of a claim asserted in the Plaintiff who does not If plaintiff does not answer
answer may be declared in he cannot be declared in
action against the cross-claimant.
default in respect thereto default
Being an initiatory pleading Does not require
Related Provision
requires a certification on
R11 SEC. 4. Answer to counterclaim or cross-claim. A
forum shopping and
counterclaim or cross-claim must be answered within 10
payment of docket fees.
days from service.

GR- A cross claim which is not set up in the action is
R11 SEC. 8. Existing counterclaim or cross-claim. A
barred.
compulsory, counterclaim or a cross-claim that a defending
party has at the time he files his answer shall be contained

Exception - Permissive Cross claim -when it is
therein.
outside the jurisdiction of the court or if the court
cannot acquire jurisdiction over third parties whose
R11 SEC. 9. Counterclaim or cross-claim arising after
presence is necessary for the adjudication of said
answer. A counterclaim or a cross-claim which either
cross claim.
matured or was acquired by a party after serving his
pleading may, with the permission of the court, be
Third, (fourth, etc.)-party complaint
presented as a counterclaim or a cross-claim by
supplemental pleading before judgment. **SEC 11. A third party complaint is a claim that a
defending party may, with leave of court, file against
R11 SEC. 10. Omitted counterclaim or cross-claim. When a a person not a party to the action, called the third party
pleader fails to set up a counterclaim or a cross-claim defendant, for
through oversight, inadvertence, or excusable neglect, or 1. contribution,
when justice requires, he may, by leave of court, set up the 2. indemnity,
counterclaim or cross-claim by amendment before 3. subrogation or
judgment. 4. any other relief, in respect of his opponent's
claim.
***Compulsory counterclaim [sec.7]
1. one which, being cognizable by the regular Answer to third (fourth, etc.)-party complaint
courts of justice, SEC 13. A third party defendant may allege in his
2. arises out of or is connected with the answer his defenses, counterclaims or cross-claims,
transaction or occurrence constituting the including such defenses that the third party plaintiff
subject matter of the opposing party's claim may have against the original plaintiff's claim.
and
3. does not require for its adjudication the presence In proper cases, he may also assert a counterclaim
of third parties of whom the court cannot acquire against the original plaintiff in respect of the latter's
jurisdiction. claim against the third-party plaintiff.
4. Such a counterclaim must be within the
jurisdiction of the court both as to the amount Answer to third (fourth, etc.)—party complaint
and the nature thereof, R11 SEC. 5. The time to answer a third party
5. except that in original action before the RTC, the complaint shall be within 15 days after service of
counterclaim may be considered compulsory summons, unless a different period is fixed by the
regardless of the amount. court.
Related Provision **Reply [Sec. 10]
1. is a pleading,

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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
2. the office or function of which is to deny, or
3. allege facts in denial or
4. avoidance of new matters alleged by way of
defense in the answer and thereby join or 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.
If the plaintiff wishes to interpose any claims arising out
of the new matters so alleged, such claims shall be set
forth in an amended or supplemental complaint.
Related Provisions
R11 SEC 6. Reply. A reply may be filed within 10 days from
service of the pleading responded to.
Exceptions - Instances when reply is compulsory
1. Where the answer alleges the defense of usury in
which case a reply under oath is required, otherwise
the allegations of usury are deemed admitted [Sec.
11 R8]

This does not apply where it is the defendant, not
the plaintiff who is alleging usury.

However, if such allegation was made by the
defendant in a counterclaim in that action, it would
be necessary for plaintiff to make a specific denial
under oath in the answer to such counterclaim
since the latter after all, is in the nature of the
counter-complaint of the defendant.
2. Where the answer is based on an actionable
document in which case a verfied reply is necessary,
otherwise the genuineness and due execution of
said actionable document are generally deemed
admitted [Sec. 8 R8]
RULE 19
Intervention
Who may intervene
*A person who has a
1. legal interest in the matter in litigation, or
2. in the success of either of the parties, or
3. an interest against both, or
4. is so situated as to be adversely affected by a
distribution or other disposition of property in
the custody of the court or of an officer thereof
may,
5. with leave of court, be allowed to intervene in
the action.
The court shall consider
1. whether or not the intervention will unduly
delay or prejudice the adjudication of the rights
of the original parties, and
2. whether or not the intervenor's rights may be
fully protected in a separate proceeding.
Time to intervene
*SEC 2. The motion to intervene may be filed at any
time before rendition of judgment by the trial court.
A copy of the pleading-in-intervention shall be
attached to the motion and served on the original
parties.
Pleadings-in-intervention
SEC 3. The intervenor shall file a
1. complaint-in-intervention if he asserts a claim
against either or all of the original parties, or
2. an answer-in-intervention if he unites with the
defending party in resisting a claim against the
latter.
Answer to the complaint-in-intervention
SEC 4. The answer to the complaint-in-intervention
shall be filed within 15 days from notice of the order
admitting the same, unless a different period is fixed
by the court.
RULE 35
Summary Judgments
Summary judgment for claimant
SEC 1. A party seeking to recover upon
1. a claim,
2. counterclaim, or
3. cross-claim or
4. to obtain a declaratory relief
may, at any time after the pleading in answer thereto has
been served,
1. move with supporting affidavits,
2. depositions or a
3. dmissions for a summary judgment in his favor
upon all or any part thereof.
Summary judgment for defending party.
SEC 2. A party against whom a claim, counterclaim,
or cross-claim is asserted or a declaratory relief is
sought may, at any time, move with supporting
affidavits depositions or admissions for a summary
judgment in his favor as to all or any part thereof.
Motion and proceedings thereon
**SEC 3. The motion shall be served at least 10 days
before the time specified for the hearing.
The adverse party may serve opposing affidavits,
depositions, or admissions at least 3 days before the
hearing.
After the hearing, the judgment sought shall be
rendered forthwith if the pleadings, supporting
affidavits, depositions, and admissions on file, show
that,
1. except as to the amount of damages, there is no
genuine issue as to any material fact and
2. that the moving party is entitled to a judgment as
a matter of law.
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

Case not fully adjudicated on motion documents.

*SEC 4. If on motion under this Rule, judgment is
not rendered upon the whole case or for all the *Effect of failure to appear
reliefs sought and a trial is necessary, the court at the Failure of the plaintiff to appear
hearing of the motion, by examining the pleadings and
when so required shall be cause for dismissal of
the evidence before it and by interrogating counsel the action.
shall ascertain what material facts exist without
substantial controversy and what are actually and in The dismissal shall be with prejudice, unless
good faith controverted. otherwise ordered by the court.

It shall thereupon make an order specifying the facts
If the dismissal is with prejudice, the remedy of the
that appear without substantial controversy, including plaintiff is to appeal from the order of dismissal
the extent to which the amount of damages or other because the dismissal for failure to appear at the
relief is not in controversy, and directing such further pre-trial hearing being with prejudice is
proceedings in the action as are just. adjudication on the merits. It is final in character
and not a mere interlocutory order.
The facts so specified shall be deemed established,
and the trial shall be conducted on the controverted Failure on the part of the defendant
facts accordingly.
shall be cause to allow the plaintiff to present
his evidence ex parte and the court to render
JUDGMENT ON THE SUMMARY JUDGMENTS judgment on the basis thereof.
PLEADINGS
It is proper when it appears It is proper even if there is an SEC. 6. Pre-trial brief
that there is no genuine issue issue as to damages  The parties shall file with the court and serve
between the parties recoverable on the adverse party, in such manner as shall
Based exclusively upon the Based not only on the ensure their receipt thereof at least 3 days
pleadings without pleadings but also upon the before the date of the pre-trial, their respective
introduction of evidence affidavits, depositions and pre-trial briefs.
admissions of the parties
showing that, except as to the  Failure to file the pre-trial brief shall have the
amount of damages, there is same effect as failure to appear at the pre-
no genuine issue trial.
Available in any action, Improper only in actions to
except for annulment of recover a debt, or for a  The remedy of the plaintiff is to file a motion for
marriage or legal separation liquidated sum of money, or reconsideration showing that his failure to file pre-
for declaratory relief trial brief was due to fraud, accident, mistake or
Subject only to the 3-day Requires prior 10-day notice excusable negligence.
notice rule and where all the
material averments of the RULE 33
complaint are admitted, such Demurrer to Evidence
motion may even be made
ex parte After the plaintiff has completed the presentation of
his evidence, the defendant may move for dismissal on
RULE 18 the ground that upon the facts and the law the plaintiff
PRE-TRIAL has shown no right to relief.
When conducted [*SEC. 1]
If his motion is denied, he shall have the right to
1. After the last pleading has been served and filed, present evidence.
2. it shall be the duty of the plaintiff to promptly
move ex parte that the case be set for pre-trial. If the motion is granted but on appeal the order of
dismissal is reversed he shall be deemed to have waived
Appearance of parties
the right to present evidence.
*SEC. 4. It shall be the duty of the parties and their
counsel to appear at the pre-trial. Demurrer to evidence in criminal Proceedings
R119 SEC. 23. After the prosecution rests its case,
The non-appearance of a party may be excused only the court may dismiss the action on the ground of
1. if a valid cause is shown therefor or insufficiency of evidence
2. if a representative shall appear in his behalf 1. on its own initiative after giving the
fully authorized in writing to enter into an prosecution the opportunity to be heard or
amicable settlement, to submit to alternative 2. upon demurrer to evidence filed by the
modes of dispute resolution, and to enter into accused with or without leave of court
stipulations or admissions of facts and of

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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
If the court denies the demurrer to evidence filed
with leave of court, the accused may adduce
evidence in his defense.
When the demurrer to evidence is filed without leave
of court, the accused waives the right to present
evidence and submits the case for judgment on the
basis of the evidence for the prosecution.
The motion for leave of court to file demurrer to
evidence shall specifically state its grounds and shall
be filed within a non-extendible period of 5 days after
the prosecution rests its case.
The prosecution may oppose the motion within a non-
extendible period of 5 days from its receipt.
If leave of court is granted, the accused shall file the
demurrer to evidence within a non-extendible period
of 10 days from notice.
The prosecution may oppose the demurrer to evidence
within a similar period from its receipt.
The order denying the motion for leave of court to file
demurrer to evidence or the demurrer itself shall not
be reviewable by appeal or by certiorari before
judgment.
Demurrer to Evidence in Demurrer to Evidence in
Civil Case Criminal case
The defendant in the civil The filing of the demurrer to
case can always present his the evidence without leave
evidence in the event his of court is a waiver of the
demurer is denied right to present evidence for
the accused
The effect of an order The dismissal based on the
sustaining the demurrer in ground of demurrer to
the civil case, the plaintiff can evidence is not appealable as
appeal from the order of the accused would be placed
dismissal. in double jeopardy.

It is not correct for the appellate court reversing the
order granting the motion [demurrer] to remand the
case to the trial court for further proceedings. The
appellate court should, instead render judgment on
the basis of the evidence submitted by the plaintiff.

An order denying a demurrer to evidence is
interlocutory. It can however be subject to petition
for certiorari.
RULE 36
Judgments, Final Orders and Entry Thereof
Entry of judgments and final orders
***SEC 2. If no appeal or motion for new trial or
reconsideration is filed within the time provided in
these Rules, the judgment or final order shall forthwith
be entered by the clerk in the book of entries of
judgments.
The date of finality of the judgment or final order
shall be deemed to be the date of its entry.
The record shall contain the dispositive part of the
judgment or final order and shall be signed by the
clerk, with a certificate that such judgment or final
order has become final and executory.
REMEDIES AGAINST A JUDGMENT
REMEDIES BEFORE A JUDGMENT BECAME FINAL AND
EXECUTORY
1. MOTION FOR RECONSIDERATION –

Filed within the period for taking an appeal,
upon the grounds that
a. The damages awarded are excessive
b. the evidence is insufficient to justify
the decision or final order or
c. The decision or final order is contrary
to law.

The motion shall be in writing and notice
thereof must be given to the adverse party. It
must also contain a notice of hearing. It must
comply with the rules on motion. If it does
not, it will be considered a pro forma motion
and will not toll the reglementary period for
appeal.

The motion shall point out specifically the
findings or conclusions of the judgment or
final order which are not supported by the
evidence or which are contrary to law.

If the motion is granted, the court may
amend the judgment or final order.

If the motion is denied, an order denying a
motion for new trial or reconsideration is not
appealable, the remedy being an appeal from
the judgment or final order.

No party shall be allowed a second motion for
reconsideration of a judgment or final order.
2. MOTION FOR NEW TRIAL

Filed within the period for taking an appeal,
upon the grounds OF
a. Fraud,
b. Accident,
c. Mistake
d. Excusable Negligence which ordinary
prudence could not have guarded
against and by reason of which such
aggrieved party has probably been
impaired in his rights
e. Newly discovered evidence, which
he could not, with reasonable
diligence, have discovered, and
produced at the trial, and which if
presented would probably alter the
result.
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

If the ground is FAME – it shall be
supported by affidavits of merits which
may be rebutted by counter-affidavits.

The FRAUD must be extrinsic or
collateral - it is the kind of fraud which
prevented the aggrieved party from
having a trial or presenting his case to
the court, or was used to procure the
judgment without fair submission of the
controversy.

If the ground is Newly discovered
Evidence – it shall be supported by
affidavits of the witnesses by whom such
evidence is expected to be given, or by
duly authenticated documents which are
proposed to be introduced in evidence.
Requisites of Newly discovered evidence
1. Must have been discovered after trial,
2. Could not have been discovered and
produced at the trial despite reasonable
diligence, and
3. If presented, would probably alter the
result of the action

The motion shall include all grounds then
available and those not so included shall
be deemed waived.

A second motion for new trial, based on
a ground not existing nor available when
the first motion was made, may be filed
within the time excluding the time during
which the first motion had been pending.

A pro forma motion for new trial or
reconsideration shall not toll the
reglementary period of appeal.

Fresh Period Rule – if the motion for
reconsideration or motion for new trial is
denied the movant has a new period of
15 days to file an appeal, counted from
receipt of the notice or order denying the
motion.
Motion for Reopening the Motion for New Trial
Trial
Properly be presented only Proper only after
after either or both parties promulgation of judgment
have formally offered and
closed their evidence before
judgment
Controlled by no other rule Based upon specific grounds
than the paramount interest set forth in Sec. 1, R37 for civil
of justice, resting entirely on cases, and in Sec. 2, R121 for
the sound discretion of the criminal cases
trial court, the exercise of
which discretion will not be
reviewed on appeal unless a
clear abuse thereof is shown.
REMEDIES AFTER A JUDGMENT BECOMES FINAL AND
EXECUTORY
1. Petition for relief from judgment, order, or other
proceedings

Availed of when the petitioner can no
longer appeal because the period for
appeal has already lapsed.

Other proceeding - includes an order or
writ of execution, or an order dismissing
an appeal. Since these are not required
to be entered, the period starts from
rendition of the order or taking of the
proceeding or from the date of
occurrence and the court will merely set
aside the proceeding and allow the party
to act as if the proceeding never took
place.
Contents of the Petition
1. The petition must be verified,
2. filed within 60 days after the petitioner
learns of the judgment, final order, or
other proceeding to be set aside, and not
more than 6 months after such judgment
or final order was entered, or such
proceeding was taken;
3. Must be accompanied with affidavits
showing the fraud, accident, mistake, or
excusable negligence relied upon, and
the facts constituting the petitioner's
good and substantial cause of action or
defense, as the case may be.
Two steps or hearings in a petition for relief
1. A hearing to determine whether the judg-
ment, order or proceeding should be set
aside; and
2. In the affirmative, a hearing on the merits of
the case
2. Annulment of Judgment
Grounds
a. Extrinsic Fraud - Extrinsic fraud shall not be
a valid ground if it was availed of, or could
have been availed of, in a motion for new
trial or petition for relief.
The action must be filed within 4 years from
its discovery;
b. Lack of Jurisdiction – must be filed before it
is barred by laches or estoppel.

The prescriptive period for the refiling of
the original action shall be deemed
suspended from the filing of such original
action until the finality of the judgment
of annulment.

However, the prescriptive period shall
not be suspended where the extrinsic
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
fraud is attributable to the plaintiff in the
original action.
3. Petition for Certiorari [Rule 65]
RULE 39
Execution, Satisfaction and Effect of Judgments
Execution as a Matter of Right
1. on motion, upon a judgment or order that
disposes of the action or proceeding
2. upon the expiration of the period to appeal
therefrom if no appeal has been duly perfected.
If the appeal has been duly perfected and finally
resolved,
1. the execution may be applied for in the court
of origin,
2. on motion of the judgment obligee, submitting
therewith certified true copies of the judgment
or judgments or final order or orders sought to
be enforced and of the entry thereof, with
notice to the adverse party.

The appellate court may, on motion in the
same case, when the interest of justice so
requires, direct the court of origin to issue the
writ of execution.
 When a judgment becomes final and executor, it is
the ministerial duty of the court to issue a writ of
execution.
Discretionary execution
Execution of a judgment or final order pending appeal
1. On motion of the prevailing party
2. with notice to the adverse party filed in the
trial court while it has jurisdiction over the
case and is in possession of either the original
record or the record on appeal, as the case may
be, at the time of the filing of such motion,
3. said court may, in its discretion, order execution
of a judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost jurisdiction, the
motion for execution pending appeal may be
filed in the appellate court.
4. Discretionary execution may only issue upon
good reasons to be stated in a special order after
due hearing.
Stay of discretionary execution
1. May be stayed upon the approval by the proper
court of a sufficient supersedeas bond filed by
the party against 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 whole or in part.
2. The bond thus given may be proceeded against
on motion with notice to the surety.
Judgments not stayed by appeal
Judgments in actions for
1. Injunction,
2. Receivership,
3. Accounting and Support, and
4. Such other judgments as are now or may
hereafter be declared to be immediately
executory, shall be enforceable after their
rendition and shall not be stayed by an appeal
taken therefrom,
unless otherwise ordered by the trial court.
On appeal therefrom, the appellate court in its
discretion may make an order suspending, modifying,
restoring or granting the injunction, receivership,
accounting, or award of support.
The stay of execution shall be upon such terms as to
bond or otherwise as may be considered proper for the
security or protection of the rights of the adverse
party.
Execution of several, separate or partial judgments
R39 Sec. 2 par. B] A several, separate or partial
judgment may be executed under the same terms and
conditions as execution of a judgment or final order
pending appeal.
Effect of reversal of executed judgment
1. Where the executed judgment is reversed totally
or partially, or annulled, on appeal or otherwise,
2. the trial court may, on motion,
3. issue such orders of restitution or reparation of
damages as equity and justice may warrant under
the circumstances.
Execution by motion or by independent action
***SEC 6. A final and executory judgment or order
may be executed on motion within 5 years from the
date of its entry.
After the lapse of such time, and before it is barred by
the statute of limitations, a judgment may be enforced
by action.
The revived judgment may also be enforced by motion
within 5 years from the date of its entry and thereafter
by action before it is barred by the statute of
limitations.
Related Provision
R36 SEC. 2. Entry of judgments and final orders. The date of
finality of the judgment or final order shall be deemed to be
the date of its entry.
Execution in case of death of party
**SEC 7. In case of the death of a party, execution may
issue or be enforced in the following manner:
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
a. In case of the death of the judgment obligee,
upon the application of his executor or
administrator, or successor in interest;
b. In case of the death of the judgment obligor,
against his executor or administrator or successor
in interest, if the judgment be for the recovery of
real or personal property, or the enforcement of a
lien thereon;
c. In case of the death of the judgment obligor,
after execution is actually levied upon any of his
property, the same may be sold for the
satisfaction of the judgment obligation, and the
officer making the sale shall account to the
corresponding executor or administrator for any
surplus in his hands.
SEC. 9 Execution of judgments for money, how enforced

In executing judgment for money, the sheriff shall
demand from the judgment obligor the full amount
in cash or certified check payable to the judgment
obligee.

If the judgment debtor has no cash or check, the
officer shall levy upon his properties, but the
judgment debtor has the option to choose which
property shall be levied upon. If the option is not
exercised, the officer shall first levy on the personal
properties and then other properties, if the
personal properties are not sufficient.

The officer may also levy upon the bank deposits of
the debtor, royalties, commission or his credits and
others not capable of manual delivery by serving
notice upon the person in possession of the same.
Known as garnishment.
Judgment is one for the delivery of real property

The officer shall demand upon the to vacate the
property within 3 working days, and restore
possession thereof to the judgment obligee;
otherwise, the officer shall oust all such persons
therefrom with the assistance, if necessary, of
appropriate peace officers, and employing such
means as may be reasonably necessary to retake
possession, and place the judgment obligee in
possession of such property.

If however, after being ejected from the property,
the occupant later attempts to enter, actually
enters or induces another to enter the property
from which he was ejected he may be held liable
for indirect contempt.
Execution of special judgments
1. When a judgment requires the performance of
any act other than payment of money or the
delivery of personal or real property,
2. a certified copy of the judgment shall be attached
to the writ of execution and shall be served by the
officer upon the party against whom the same is
rendered, or upon any other person required
thereby, or by law, to obey the same,
3. and such party or person may be punished for
contempt if he disobeys such judgment.
Property exempt from execution
SEC 13. Except as otherwise expressly provided by law,
the following property, and no other, shall be exempt
from execution:
a. The judgment obligor's family home as provided
by law, or the homestead in which he resides, and
land necessarily used in connection therewith;
b. Ordinary tools and implements personally used
by him in his trade, employment, or livelihood;
c. Three horses, or three cows, or three carabaos, or
other beasts of burden, such as the judgment
obligor may select necessarily used by him in his
ordinary occupation;
d. His necessary clothing, and articles for ordinary
personal use, excluding jewelry;
e. Household furniture and utensils necessary for
housekeeping, and used for that purpose by the
judgment obligor and his family, such as the
judgment obligor may select of a value not
exceeding one hundred thousand pesos;
f. Provisions for individual or family use sufficient
for four months;
g. The professional libraries and equipment of
judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding
three thousand pesos in value;
h. One fishing boat and accessories not exceeding
the total value of one hundred thousand pesos
owned by a fisherman and by the lawful use of
which he earns his livelihood;
i. So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within
the four months preceding the levy as are
necessary for the support of his family;
j. Lettered gravestones;
k. Monies, benefits, privileges, or annuities accruing
or in any manner growing out of any life
insurance;
l. The right to receive legal support, or money or
property obtained as such support, or any pension
or gratuity from the Government;
m. Properties especially exempted by law.
But no article or species of property mentioned in this
section shall be exempt from
1. execution issued upon a judgment recovered for
its price or
2. upon a judgment of foreclosure of a mortgage
thereon.
 These exemptions must be claimed otherwise they
are deemed waived.
Proceedings where property claimed by third person
1. If the property levied on is claimed by any person
other than the judgment obligor or his agent, and
2. such person makes an affidavit of his title thereto or
right to the possession thereof, stating the grounds
of such right or title, and serves the same upon the
officer making the levy and a copy thereof upon the
judgment obligee,
3. the officer shall not be bound to keep the property,
unless such judgment obligee, on demand of the
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN
officer, files a bond approved by the court to
indemnify the third-party claimant in a sum not less
than the value of the property levied on. In case of
disagreement as to such value, the same shall be
determined by the court issuing the writ of
execution.
No claim for damages for the taking or keeping of the
property may be enforced against the bond unless the
action therefor is filed within 120 days from the date of the
filing of the bond.
The officer shall not be liable for damages for the taking or
keeping of the property, to any third-party claimant if such
bond is filed.
Nothing herein contained shall prevent such claimant or
any third person from vindicating his claim to the property
in a separate action,
or prevent the judgment obligee from claiming damages
1. in the same or
2. a separate action against a third-party claimant
who filed a frivolous or plainly spurious claim.

Terceria – if the property levied upon the sheriff is
owned or claimed by third person, the claimant
may make an affidavit of his title to the property
levied upon stating the grounds for his claim or
assertion of right. The affidavit shall serve upon the
officer, making the levy with copy of the same given
to the judgment obligee.

Upon receipt of the affidavit, the officer shall
discontinue with the levy.

However, the officer may proceed if the judgment
obligee, protects the officer, by posting a bond in a
sum not less than the value of the property.

If the bond is approved by the court, the officer can
continue with the levy.

The remedy of the third person then is to file an
action for damages with preliminary injunction
against the sheriff or TRO or an action for injunction
as a main action to protect his rights to the
property.

This action will not be deemed an interference with
the court that issued the writ of execution because
the suit is against the sheriff performing an illegal
act and not directed against the power of the court.
Remedy when writ of execution is unsatisfied

When the return for the writ of execution remains
unsatisfied, the judgment creditor may ask from the
court an order requiring the judgment debtor to
appear so he may be examined as to his properties.

The court may also require the appearance of a
person or corporation who holds property from the
judgment debtor or is a debtor of the latter.

However the judgment obligor cannot be required
to appear before a court which is outside the
province or the city where the debtor resides. The
same holds true with respect to the debtor of the
judgment debtor.
Redemption

When real property is sold on execution, the
judgment obligor has 1 year from the date of the
registration of the sale to redeem the property
from the purchaser.

The purchaser is not entitled to the rents, fruits or
income pending the redemption and shall belong to
the judgment debtor until the expiration of the
period of redemption.
Effect of judgments or final orders
SEC 47. The effect of a judgment or final order rendered
by a court or of the Philippines, having jurisdiction to
pronounce the judgment or order, may be as follows:
a. In case of a judgment or final order against a
specific thing, or in respect to the probate of a
will, or the administration of the estate of a
deceased person, or in respect to the personal,
political, or legal condition or status of a
particular person or his relationship to another,
the judgment or final order is conclusive upon the
title to the thing, the will or administration, or the
condition, status or relationship of the person;
however, the probate of a will or granting of
letters of administration shall only be prima facie
evidence of the death of the testator or intestate;
b. In other cases, the judgment or final order is, with
respect to the matter directly adjudged or as to
any other matter that could have been raised in
relation thereto, conclusive between the parties
and their successors in interest by title subsequent
to the commencement of the action or special
proceeding, litigating for the same thing and
under the same title and in the same capacity; and
c. In any other litigation between the same parties
or their successors in interest, that only is deemed
to have been adjudged in a former judgment or
final order which appears upon its face to have
been so adjudged, or which was actually and
necessarily included therein or necessary thereto.
Elements of Res Judicata
1. The judgment must be final or executory.
2. Rendered by a court of competent jurisdiction;
3. It must be judgment on the merits that is , it was
rendered after the consideration of the evidence or
stipulations submitted by the parties at the trial of
the case.
4. There must be, between the first and the second
action identity of parties, subject matter and causes
of action
Effect of foreign judgments or final orders
SEC 48. The effect of a judgment or final order of a
tribunal of a foreign country, having jurisdiction to render
the judgment or final order is as follows:
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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

a. In case of a judgment or final order upon a Must be made within the May be filed not later than
specific thing, the judgment or final order is reglementary period for 60 days from notice of the
conclusive upon the title to the thing; and appeal judgment, order or
b. In case of a judgment or final order against a resolution sought to be
person, the judgment or final order is assailed.
presumptive evidence of a right as between the Stays the judgment, award or Unless a writ of preliminary
parties and their successors in interest by a order appealed from injunction or temporary
subsequent title. injunction is issued, does not
stay the challenged
In either case, the judgment or final order may be repelled proceeding
by The petitioner and the The parties are the aggrieved
1. evidence of a want or jurisdiction, respondents are the original party against the lower court
2. want of notice to the party, parties to the action, and the or other quasi-judicial agency
3. collusion, lower court or other quasi- and the prevailing parties
4. fraud, or judicial agency is not to be who thereby respectively
5. clear mistake of law or fact. impleaded. become the petitioner and
respondents
RULE 41 The prior filing of a motion A motion for reconsideration
for reconsideration is not is condition precedent
SEC. 1 No appeal may be taken from: required
a. An order denying a petition for relief or any The appellate court is in the The higher court exercise
similar motion seeking relief from judgment; exercise of its appellate original jurisdiction under its
b. An interlocutory order; jurisdiction and power of power of control and
c. An order disallowing or dismissing an appeal; review supervision over the
d. An order denying a motion to set aside a proceedings of the lower
judgment by consent, confession or compromise court.
on the ground of fraud, mistake or duress, or any
other ground vitiating consent; APPEALS AND REVIEW OF JUDGMENTS IN CIVIL CASES
e. An order of execution;
f. A judgment or final order for or against one or
 MTC --- [R40]  RTC ---[R42]  CA --- [R45]  SC
more of several parties or in separate claims,
counterclaims, cross-claims and third party
complaints, while the main case is pending,  RTC [ICC & CRC] --- [R43]  CA --- [R45]  SC
unless the court allows an appeal therefrom; and
g. An order dismissing an action without prejudice.  RTC [Pure Questions of Law] --- [R45]  SC

In any of the foregoing circumstances, the aggrieved party  RTC [others] --- [R41]  CA --- [R45]  SC
may file an appropriate special civil action as provided in
Rule 65 [AM 07-7-12-SC]  COA/COMELEC --- [R64/65]  SC

Question of law – exists when there is a doubt or
controversy as to what the law is on a certain state
of facts

Question of fact – when doubt or differences arises
as to the truth or falsehood of facts.
CERTIORARI AS A MODE OF CERTIORARI AS AN
APPEAL ORIGINAL SPECIAL CIVIL
ACTION
The petition is based on The petition rises the issue as
question of law which the to whether the lower court
appellant desires the acted without or in excess of
appellate court to resolve jurisdiction or with grave
abuse of discretion
Involves the review of a It may be directed against an
judgment, award or final interlocutory order of the
order on the merits. court prior to appeal from
the judgment or where there
is no appeal or any other
plain, speedy or adequate
remedy.
 NLRC --- [R65]  CA --- [R45]  SC
 OTHER QJAs --- [R43]  CA --- [R45]  SC
 CTA --- [R45]  SC
 CA --- [R45]  SC
Period to Appeal
 R40/41 – ORDINARY APPEAL [Writ of Error] - By
mere notice of appeal 15/30 days if a record of
appeal is required[in special proceedings and cases
of multiple appeals] from receipt of the judgment
or final order. However, an appeal in habeas corpus
cases shall be taken within 48 hours from notice of
the judgment or final order appealed from. Motion
for reconsideration is optional. Period to
appeal/seek review is non-extendible.
 R42 – PETITION FOR REVIEW – 15 days from
receipt of the judgment or final order. Motion for
reconsideration is optional. Upon proper motion
and the payment of the full amount of the docket
and other lawful fees and the deposit for costs

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NOTES & CASES IN Civil Procedure PERSONAL NOTES OF Atty. OLIVER R. GATCHALIAN

before the expiration of the reglementary period,
the CA may grant an additional period of 15 days
only within which to file the petition for review. No
further extension shall be granted except for the
most compelling reason and in no case to exceed
15 days [R42 Sec. 1]
 R43 - PETITION FOR REVIEW – The appeal shall be
taken within 15 days from notice of the award,
judgment, final order or resolution, or from the
date of its last publication, if publication is required
by law for its effectivity, or of the denial of
petitioner’s motion for new trial or reconsideration
duly filed in accordance with the governing law of
the court or agency a quo. Only 1 motion for
reconsideration shall be allowed. Upon proper
motion and the payment of the full amount of the
docket fee before the expiration of the
reglementary period, the CA may grant an
additional period of 15 days only within which to
file the petition for review. No further extension
shall be granted except for the most compelling
reason and in no case to exceed 15 days [R43 Sec.
4]
 GR – The filing of a motion for reconsideration is
required before the a petition for certiorari
Exceptions
1. where the order is a patent nullity, as where the
court a quo has no jurisdiction;
2. where, under the circumstances, a motion for
reconsideration would be useless;
3. where petitioner was deprived of due process and
there is extreme urgency for relief;
4. where, in a criminal case, relief from an order of
arrest is urgent and the granting of such relief by
the trial court is improbable;
5. where the proceedings in the lower court are a
nullity for lack of due process;
6. where the proceedings was ex parte or in which the
petitioner had no opportunity to object; and
7. where the issue raised is one purely of law or
where public interest is involved
APPEALS & REVIEW OF JUDGMENTS IN CRIMINAL CASES
 MTC [Public Servants] ---- [R40]  RTC ---- [R42]
 SB --- [R45]  SC

 R45 – PETITION FOR REVIEW ON CERTIORARI  MTC [Others] --- [R40]  RTC ---- [R42]  CA ---
[APPEAL BY CERTIORARI] - The petition shall be [R45]  SC
filed within 15 days from notice of the judgment or
final order or resolution appealed from, or of the  RTC [Public Servants] --- [R41]  SB ---- [R45] 
denial of the petitioner’s motion for new trial or SC
reconsideration filed in due time after notice of the
judgment. On motion duly filed and served, with  RTC [Others] --- [R41]  CA ---- [R45]  SC
full payment of the docket and other lawful fees
and the deposit for costs before the expiration of  SB --- [R45]  SC
the reglementary period, the SC may for justifiable
reasons grant an extension of 30 days only within
which to file the petition. Motion for
reconsideration is not required.

 R64 - PETITION FOR CERTIORARI - The petition shall

be filed within 30 days from notice of the judgment
or final order or resolution sought to be reviewed.
The filing of a motion for new trial or
reconsideration of said judgment or final order or
resolution, if allowed under the procedural rules of
the Commission concerned, shall interrupt the
period herein fixed. If the motion is denied, the
aggrieved party may file the petition within the
remaining period, but which shall not be less than 5
days in any event, reckoned from notice of denial
[Sec. 3 R64] Period to appeal/seek review is non-
extendible. Motion for reconsideration depends on
the rules of the quasi-judicial agencies.

 R65 – PETITION FOR CERTIORARI - The petition

may be filed not later than 60 days from notice of
the judgment, order or resolution. In case a motion
for reconsideration or new trial is timely filed,
whether such motion is required or not, the 60 day
period shall be counted from notice of the denial of
said motion. No extension of time to file the
petition shall be granted except for compelling
reason and in no case exceeding 15 days [Sec. 4
R65]

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