Civil Action
Rule 1-40
Rule 62-71
Subject-matter – the thing, the wrongful act, the contract that had given
rise to the case; directly under controversy
Cause of action –
Remedy –
*breach of contract
Criminal Action
Special Proceeding
Adoption
Probate of a will
Escheat
Venue (Rule 4)
Real Action
Personal Action
Binding Effect:
In Rem – the binding effect of the decision of the court is against the whole
world (land registration)
Quasi In Rem – action brought against specific party but involved real
property (foreclosure of property in case of default of payment)
Action Quasi in rem (to bind the person for the purpose of binding his
property)
Elements:
Parties
Plaintiff
Defendant
Exceptions:
Exercise of profession
Judicially separated
Series of transactions-separate dealings but with the same kind of the subject
matter of the suit
Venue
Venue stipulation is for the convenience of the parties, though it’s a valid
stipulation, if it will prejudice one of the parties, it can be questioned.
Uniform Rules
Ordinary Procedure
Kinds of Pleadings
Pleadings are the written statements of the respective claims and defenses
of parties submitted to the court for appropriate judgment
Answer is the pleading that where the defendant states the his defenses to
the complaint
Reply is not optional when the defense of usury is raised or if the defense in
based on actionable document (forged signature)
Counterclaim is either compulsory or permissive
Permissive counter-claim
1. Does not arise on the same transaction, not deem barred if not set
up
Permissive Cross-claim (if outside the jurisdiction of the court) the dismissal
of the complaint carries with it the dismissal of the cross-claim which is
purely defensive. (if filed with affirmative defense, the dismissal of the
complaint does not carry with it the dismissal of the permissive cross-claim,
because it is a new suit altogether)
Compulsory Cross-claim
Third (fourth, etc) party complaint – new complaint with prior leave of the
court intended for contribution, subrogation, other reliefs (third-party
plaintiff v. third-party defendant)
Parts of a Pleading
Caption
Body
Allegations
Reliefs prayed for
Signature
Verification
General Rule
Elements
Identity of Parties
Similarity of interest
Initiatory Pleadings
Alternative Defenses
Capacity to sue
Alleged generally
Fraud
Mistake
Capacity
Alleged Generally
Conditions precedent
Actionable Document
If the counsel was not able to object the technical admission, the
technical admission is deemed waived.
Technical Admission does not apply if the party is not a party to the
document or if there is an order of inspection of the original
document and the inspection was refused
Due execution
Motion to Expunge
Failure to Plead
No Default after defendant filed his answer within the prescribed period
2. Lites pendentia
3. Res judicata
4. Prescription
Default
Defendant is
1. The defendant in default may, at any time after discovery thereof and
before judgment, file a motion under oath to set aside the order of default
on the ground that was failure to answer or appear on the date set for pre-
trial was due to fraud, accident, mistake or excusable negligence, and that
he has a meritorious defense;
3. If the defendant discovered the default after the judgment has become
final and executory, he may file a petition for relief under Sec. 2, Rule 38;
and
4. He may also appeal from the judgment rendered against him as contrary
to the evidence or the law, even if no petition to set aside the order of
default has been presented by him.
(1) the court must have validly acquired jurisdiction over the person of the
defendant either by service of summons or voluntary appearance;
(2) the defendant failed to file his answer within the time allowed therefor;
and
(3) there must be a motion to declare the defendant in default with notice
to the latter.
Order of Default
Fraud
Accident
Mistake
Excusable Negligence
Judgment by Default
Declaration of default
Before Judgment
FAME+Affidavit of Merit
After judgment
FAME+Affidavit of Merit
Partial Default
Only to the extent of the prayed but it can be less than that and it
cannot be more than that or in different kind
Annulment of Marriage
Legal Separation
Amended Complaint
Filing fee should be based on the amended complaint because the original
complaint is deemed vacated (Magaspi v. Ramolete)
After stipulations of the facts, the judgment based on the stipulation is not
anymore subject to amended pleading (MWSS v. CA)
Supplemental / Amended
When to File
10
Summary Procedure
15
Ordinary Procedure
30
If served to a public official authorized to receive summons for a
foreign corporation (SEC) (not applicable to foreigners)
60
If by publication
Extra-territorial service
Service of Summons
Bill of Particulars
Filing
Service
If there are multiple clients and multiple lawyers, each of the lawyers shall
be served a copy of pleading
If there is only one party but there are multiple lawyers, only one copy is
required to be serve to either of the lawyers
Modes of Filing
Personal Filing – deemed filed upon the receipt of the clerk of court
Modes of Service
Personal Service
Completeness of Service
Personal
Registered Mail
Proof of Filing
Proof of Service
Lis Pendes
Summons
Purposes:
Service of Summons
Personal Service
Substituted Service
Service by Publication
Prisoners
Public Corporation
Contents
Served by
Sheriff
Deputy Sheriff
Suitable person
Return
Motion to Dismiss
Grounds
5. Litis Pendentia between the same parties and the same cause
Cause of Action
Plaintiff’s right
9. Statute of Fraud
Statute of Frauds
Dismissal of Actions
Notice of Dismissal
With prejudice if the plaintiff cause the dismissal of that same action
in a court of competent jurisdiction
Motion to Dismiss
Litigated Motion
Mandatory
It is the duty of the plaintiff’s counsel to moved for pre-trial, clerk of court
will moved for pre-trial in default of the plaintiff’s counsel
Both parties must file their pre-trial brief three days before the pre-trial
conference
Plaintiff can only be put in default only at the motion of the defendant
Intervention
Calendar of Cases
Subpoena
Subpoena ad testificandum
Viatory right – the right to decline the subpoena if leaving 100 kilometers
from the court that issued the subpoena, remedy is to take a deposition in
the court where the person leave
Grounds to quash
Subpoena ad testificandum
Computation of Time
If the last day falls on a Sunday or holiday, the last day will be the next
working day
Modes of Discovery
1. Depositions Pending Action (Rule 23) (with leave of court if answer was not yet filed)
2. Depositions before action or pending appeal (Rule 24) (with leave of court if answer was not yet filed)
3. Interrogatories to parties (Rule 25) (with leave of court if answer was not yet filed)
4. Admission by adverse party (Rule 26) (with leave of court if answer was not yet filed)
5. Production or inspection of documents or things (Rule 27) (always with leave of court)
6. Physical and mental examination of persons (Rule 28) (always with leave of court)
Classifications:
Purpose:
Benefits:
5. It expedites the disposal of litigations, saves the time of the court and
helps clear the dockets;
By leave of court after the jurisdiction has been obtained but before the
answer is filed and the issues are joined
May be used against any person present or represented at the taking of the
deposition
Sanctions
Contempt of court
Trial
Order of Trial
Consolidation
One judgment
Severance
To avoid prejudice
Trial by Commissioner
By referral
Instances
Long account
Taking of account is necessary
Question of facts other than those set in the pleadings and trial
Powers of Commissioner
Regulate hearing
The court may adopt the report of petitioner in toto or just a part of it or
not even a part of it
FINALS
Rule 36
Body of decision contains the facts and the law and opinion of the judge
(obiter dictum)
Judgment must go with the pleadings filed, if it is not raised in the issue, the
court cannot tackle it in the decision unless it was openly discussed during
the trial
The date of finality between parties starts to run after such party received
the judgment
Several Judgments is proper only when the liabilities of every parties can be
clearly distinguished from each and every party (joint liability-applicable,
solidary liability-not applicable)
Rule 37
Newly discovered evidence after trial that will alter the course of trial
Facts and laws that do not justify the decision must be stated
Extrinsic Fraud
Pro forma pleadings (i.e. no notice of hearing) does not toll the
running of prescriptive period
Contents of Motion
Rule 38
Refer to judgments, order, and other proceedings
Extra-ordinary writ
FAME
Time of filing
FAME
Meritorious Defense
Two Stages
RULE 39
APPEALS
Rule 40
An Ordinary Appeal is an appeal from a judgment of lower court on
questions of facts or law or mixed questions of law and facts
MTC – RTC (original jurisdiction)
Appellant v. Appellee
Can be both appellant if both parties appeal
File a Notice of Appeal with the court that rendered judgment or final order
Notice of Appeal must contain:
o Parties
o Order
Must served notice to the adverse party
Appeals on Special Proceedings
o Notice of Appeal (within 15 days)
o Record of Appeal (within 30 days)
Full names of parties
Judgment and final order appealed from
Chronological order, copies of pleadings, motions, related to
the appealed judgment
Timeliness of the appeal
Issue of fact raised and evidence
Index if more than 20 pages
Copies to adverse parties
Ordinary appeal is a matter of right, all records are elevated,
Petition for review is a matter of privilege, no records are elevated
Payment of docket fee is with the clerk of court that render the appealed
judgment, non payment is ground for dismissal of appeal
Sec 8
o RTC affirms – RTC will try it on merits
Rule 41
Rule 42
Perfection of appeals
o As to the Party – upon filing of notice of appeal
o As to the Court – after the appeals is perfected as to the party
appealing and after the period to appeal expired and can exercise
residual power so long as the records were not transmitted to the
appellate court
Prior to the transmittal of records, courts can exercise residual powers
Appeal can be withdrawn, but he cannot in order to revive jurisdiction of
the court file an MR or MNT
Appeal by notice of appeal – court loses jurisdiction over the case
Appeal by record on appeal – court loses jurisdiction over the subject
matter which was being appealed
To perfect an appeal, the following must be complied [RP v. Sps. Luriz (26
January 2007)]
o Notice of appeal
o Serve a copy to adverse party
o Payment of docket fee
No need to file a second notice of appeal
In cases of penalty of death or reclusion perpetua, ordinary notice of appeal
to CA, automatic review to SC (People v. Abon, GR 169245)
Requirement as to Form
o Full name of parties
o Timeliness of appeal
o Issues involved
o Arguments
o Certified true copies of the judgment or order being appealed
o Relevant pleadings
o Verification and Certification of Non-Forum Shopping
Reply and Rejoinder is not a matter of right (wait for court order if required
to file)
RTC records need not be elevated to CA (discretionary on the CA) because
the RTC may still issue a writ of execution pending appeal
Rule 43
Rule 44
Rule 45
Rule 46
Rule 47
Rule 48
Rule 49
Dismissal of Appeal
Grounds are not automatically dismiss the appeal, it is within the discretion
of the court to grant dismissal
Wrong mode of appeal, case dismissed
Appeal may be withdraw as a matter of right before the appellee’s filing of
the appellee’s brief
Filing means the filing in court and not the service to the appellant
CA can received evidence
SC will not receive evidence but it can re-evaluate the evidence falling on
the exceptions (misapprehension of fact)
Promulgation of judgment is the delivery of the signed copy to the clerk of
court
Unpromulgated judgment is not a judgment in contemplation with the law
Execution of judgment if immediately executory there is no need to wait for
15 days to file motion for execution
Motion for Execution pending appeal may be filed before the RTC if the
records are still in the RTC, otherwise to the CA if the records had been
transmitted to the CA, the CA will just issue an order to RTC to execute the
decision
Rule 52
Rule 53
Motion for New Trial may be filed anytime after appeal from the lower
court has been perfected and before the CA loses jurisdiction over the case
The only ground is newly discovered evidence
Newly discovered evidence means an evidence which could not have been
discovered prior to the trial in the trial court and which can change the
outcome of the case
Shall be accompanied by affidavit
CA may received evidence in motion for new trial
Corroborative and cumulative evidence is not a newly discovered evidence
Rule 56
PROVISIONAL REMEDIES
Rule 57
Purposes:
o is to seize the property of the debtor in advance of final judgment
and to hold it for purposes of satisfying the said judgment
o to enable the court to acquire jurisdiction over the action by actual
or constructive seizure of the property in those instances where
personal services of summons on the creditor cannot be affected
(action quasi in rem)
Insolvency is not a ground for the issuance of the writ of preliminary
attachment
Must be for the recovery of a specified sum of money
Can be avail by any party, even a defendant can apply for a writ of
preliminary attachment in connection with his permissive or compulsory
counter claim
If the judgment is final and executory, do not ask for a writ of preliminary
attachment rather for a writ of execution of judgment
Can be issued ex parte, affidavit and bond required, notice and hearing
discretionary to the court
Stages
o Order granting the writ of attachment (can be avail even before the
court acquire jurisdiction over the defendant)
o Issuance of writ of attachment (can be avail even before the court
acquire jurisdiction over the defendant)
o Implementation of writ of attachment (the court must have
jurisdiction over the defendant, can be serve together with the
service of summons and copy of complaint to the defendant)
Exceptions: Rule 57, § 5, ¶ 2
Applicant’s bond
o Amount to be determined by the court
o The bond will pay all the costs which may be adjudged to the adverse
party and all damages by reason of wrong attachment
o Motion for reduction of partial discharge if the attachment is
excessively high
Manner of attaching
o Same manner in execution
Discharge of Writ of Attachment
o Counterbond was posted or a cash deposit was made
o Attachment was improper or irregularly issued
o The attachment is excessive
o The property is exempted from execution
o Lost is case
Counter-bond
o Counter-bond responds for the payment of the judgment covered by
the attaching creditor regardless of the wordings of the bond
o Applicant’s bond responds for damages resulting from the
attachment
An order for execution pending appeal can be enforced against the
counter-bond
Merits on the complaint are not triable in a motion to discharge an
attachment
Rule 39, § 16 is identical
Writ of execution is unsatisfied, the counter-bond will be automatically
attached without any need to file separate pleading
Damages must be prove in order to go against the applicant’s bond
Cannot be subject of an independent action (Rule 57, § 20)
o Exceptions
Principal case was dismissed and damages were suffered by
reason of the attachment
Damages suffered by third party
Calderon v. IAC 155 SCRA 531
Rule 58
Rule 59
Rule 60
Rule 61
Initiated by complaint
Initiated by petition
File in MTC, RTC, CA, SC
Govern by the general rules on venue unless otherwise provided
Rule 62
Rule 63
Rule 64
Rule 65
Certiorari
o Original Special Civil Action (this is not a mode of appeal)
o Against any tribunal, board, officer exercising judicial or quasi-judicial
power and not ministerial duties (remedy-mandamus)
o There must be a grave abuse of discretion amounting to lack or
excess of jurisdiction over the subject matter
o There must be no appeal or any plain, speedy and adequate remedy
o Petition must be verified
o MR is required before a petition under Rule 65 is allowed
o Purpose is to annul the judgment
o There must be a certified true copies of the orders denying the MTD
and MR
o Append other relevant documents
o Get a TRO to stop the proceedings in the lower court because it will
not stop the proceedings in the lower court
o RTC, CA, SC concurrent jurisdiction
o Must be accompanied by Certificate of Non Forum Shopping
o Filing of petition under Rule 65 does not stop the running of
prescriptive period to file an answer (file an answer ad cautelam)
o Intended to correct an act performed by the respondent and extends
only to discretionary acts
o Judicial function – power to determine the legal rights of the parties
and undertakes to determine these questions and adjudicate upon
the rights of the parties
o Without jurisdiction – no legal right to determine the case
o In excess of jurisdiction – there is grave abuse of discretion where
respondent acts in a capricious, whimsical, arbitrary or despotic
manner in the exercise of his judgment
o It is an extra-ordinary remedy, if appeal is available, Rule 65 does not
lie (exception is if the appeal in not adequate or speedy remedy, or it
is for special consideration [novel issues])
o Not remedy for loss of appeal or error in judgment
o Pro forma rule not applied in MR or interlocutory orders
Exceptions are patent nullity, urgent necessity, useless,
deprived of due process, relief from judgment of arrest in
criminal cases
o Questions of facts and law cannot be raised, only issue is whether
there is grave abuse of discretion or lack or excess of jurisdiction
Prohibition
o To command the court a quo to desist from further proceedings in an
action or matter specified therein
o Preventive remedy, lies against judicial and ministerial acts
o Accompanied by TRO/WPI
o Administrative remedies must be exhausted in order to be availed
against officers in the executive department
o There must be no other plain, speedy, adequate remedy available
o MTD denied – remedy is Prohibition not Mandamus because the
court exercises judicial function not ministerial function
Mandamus
o Commanding a tribunal, corporation, board, officer to perform an act
which it unlawfully neglect
o Exhaust administrative remedies
Damages may be awarded in Rule 65
When filed
o 60 days from notice of judgment, order, resolution
o 60 days from the denial of motion for new trial or reconsideration
Where filed
o RTC – lower courts, corporations, officers, board
No prior service of a copy thereof to the adverse party
o CA – quasi-judicial agencies
Must have proof of service
o SC – novel issues
Must have proof of service
Parties
o Public respondent – nominal party
o Private respondent – indispensable party
o A party not party to the case may file a comment
Respondent is required to submit memoranda
o In the RTC hearing on memorandum
o In CA and SC no hearing on memorandum
Will not interrupt proceedings
Petition for TRO/WPI
Rule 65 can be availed in criminal cases but only to the civil aspects of the
case (order granting demurrer to evidence can be questioned via Rule 65)
Rule 66
Rule 67
Expropriation
Deed of Absolute sale if no opposition from the private owner
Expropriation Proceedings if there is opposition
Venue of action is where the property lies or one of the properties lies
Preliminary Deposit
o Plaintiff can enter in the property
o The assed value of the property for purposes of taxation
o Will form part of payment of just compensation
o Can stands as indemnity for damages
o Discretionary on the part of plaintiff, mandatory only in case the
plaintiff wants to take possession of the property
o Ministerial duty to the court to issue writ of possession after the
deposit (remedy if denied by court is MR then Mandamus)
o Depository bank is PNB, 10% of the compensation
o Mere notice, no need of hearing suffices for immediate entry to the
property
Defenses and Objections
o No Objection
Entitled to all notices
o Objection
File answer
No third party complaints
Objections not raised is deemed waived but in the higher
interest of justice, amendment can be done within 10 days
o Non filing of answer in the issue of just compensation will not result
to declaration of default
Order of Expropriation
o Lawful right to take the property sought to be expropriated
o Upon payment of just compensation to be determined as of the date
of the taking of the property or the filing of the complaint, whichever
comes first
o Final order sustaining the right to expropriate can be appealed
o Order on Just Compensation can also be appealed
o 30 Days to appeal
Ascertainment of Just Compensation
o Appointment of not more than 3 commissioners
Commissioner must take oath
Can received evidence
Can administer oath
o Formula
Fair Market Value + Consequential Damages = JC
Consequential Benefits > Consequential Damages = Fair
Market Value is JC
o Payment of legal interest from the time of taking of the property to
the time of actual payment
No need for MR (discretionary)
GR 56378 NPC v. CA
Issue on conflicting claims may be decided by the court handling the
expropriation proceedings (RP v. CFI of Pampanga)
It must be used for the public use describe in the property
Entry not delayed by appeal
o If reversed on appeal, restoration of property
o Determine the damages suffered by defendant
Recording of judgment and must be registered to the RD to bind third
persons
Notes
o Barangay cannot expropriate
o File in RTC
o Implead all owners
o Consignation if there are multiple claims
o No need of expropriation if the owner has agreed to the sale
Rule 68
Rule 69
Rule 70
Forcible Entry
o Possession is unlawful from the beginning
o Issue: who between the contending parties has better possession of
the contested property
o Venue: Municipal Trial Court, Metropolitan Trial Court
o Rule on Summary Procedure
o Instituted within one year from dispossession or from discovery of
dispossession in case of stealth
o No need of prior demand to vacate
o Allege: (1) prior physical possession of the property by the plaintiff;
(2) deprivation of said possession by another by means of force,
intimidation, threat, strategy or stealth
Unlawful Detainer
o Possession is lawful in the beginning and becomes illegal after the
expiration of contract of lease
o Issue: who between the contending parties has better possession of
the contested property
o Venue: Municipal Trial Court, Metropolitan Trial Court
o Rule on Summary Procedure
o Within one year after the last demand
o Need of prior demand to vacate
o Allege: (1) prior physical possession of the property by the plaintiff is
not a condition sine qua non; (2) there is a withholding of possession
or refusal to vacate the property by a defendant after the expiration
of the contract of lease
Accion Publiciana
o Issue: who has the better and legal right to possess, independently of
the title
o Venue: RTC
o Ordinary Civil Procedure
o After the expiration of one year but within the period prescribed in
the statute of limitation
Accion Reinvidicatoria
o Issue: possession and ownership
o Venue: RTC
o Ordinary Civil Procedure
o Allege: (1) identity of the property; (2) plaintiff’s title to it
Who may institute proceedings?
o A person deprived of the possession of any land or building by force,
intimidation, threat, strategy or stealth (Forcible Entry)
o A lessor, vendor, vendee, or other person
It may be instituted against all kinds of land except agricultural land
(agrarian court)
Manner of dispossession must be alleged, or it may be dismissed for lack of
jurisdiction
Issue of possession
o Possession de facto only and not de jure
o No res judicata on the issue of ownership
o The mere raise of issue of ownership will not divest the jurisdiction of
the court
Rule 70, Sec. 2 applies only to unlawful detainer
o To pay or comply and to vacate
5 days to vacate in case of buildings
15 days in case of land
Filing of action will be within one year from the demand to vacate
Counting of days is by Article 13 of the Civil Code (1 year = 365 days; 12
months = 360 days)
Demand is not required if
o Expiration of lease
o Enforcement of terms of contract
o Defendant is intruder not lessee
o Month to month lease (better to send demand to vacate to avoid
tacit renewal after 15 days from the expiration of lease)
When deemed accion publiciana or accion reinvidicatoria
o No allegation on how they were able to enter the land
o Defendant refuses to vacate the land on the ground that he is the
lessee of plaintiff’s predecessor-in-interest
How demand is made
o Personally on the defendant
o Written notice
o Posting of notice
o Serve by registered mail
Regardless of amount to be recovered, the MTC has exclusive original
jurisdiction
In case of failure of the defendant to file Answer, No motion to declare
defendant in default but motion to render judgment base on pleadings
submitted is the remedy
Failure of plaintiff to appear in preliminary conference, cause of dismissal of
the complaint
Dates:
o Filing of complaint,
o 10 days to file answer from the service of summons,
o preliminary conference not later than 30 days after the last answer
was filed,
o record of preliminary conference order within 5 days after the
termination of preliminary conference
o filing of affidavits and position papers within 10 days from the receipt
of order,
o Judgment will be rendered within 30 days from the issuance of
record of preliminary conference order
No need of hearing for the receipt of testimonial evidence and adjudication
is based on the pleadings
Matter of ownership if passed upon by court is only provisional and cannot
be barred by res judicata
Writ of Preliminary Mandatory Injunction may be filed within 5 days from
the filing of complaint
o If the appeal of defendant is frivolous or dilatory
o If the appeal of plaintiff is meritorious
Judgment
o Plaintiff’s allegation is true, restitution of property, damages (arrears,
rents, reasonable compensation) no moral and/or exemplary
damages
o Defendant’s allegation is true, payment of costs
o Will not bind title or ownership
o Will not bar future actions between the same parties on ownership
o Appealable to RTC
o Primary relief is recovery of possession, awards of damages is
incidental only (can award amounts more than the limit of its
jurisdiction)
Execution
o Immediate execution if rendered against defendant
o To stay execution, defendant must
Perfect an appeal
Within 15 days, RTC
File a superseadeas bond to be approved by the MTC
By cash or surety in the MTC to answer the rents
Make monthly deposit to the RTC acting as appellate court of
monthly rental, or at the rate determined by MTC
To ensure the payment of rental
Amount determined by the inferior court
Payed on the date of payment according to the contract
or in the absence therof on the 10th day of every month
o RTC to CA or SC – immediately executor, cannot be stayed even with
the paying of rents and superseadeas bond
o Failure to pay monthly deposit pending appeal will result to the
transfer of property to the plaintiff but will not prejudice the appeal
o Execution pending appeal is governed by Sec. 8 of Rule 70 and not by
Sec. 2 of Rule 39
Rule 71