BASIC CONCEPTS IN CIVIL PROCEDURE PART I 1.

The Philippines uses the system of code pleadings as distinguished from the common law system. In the system of code pleading, the procedural rules are set forth in a codified form like the Rules of Court. In the common law system, the procedural rules are not written in codified form (Marquez and Guttierez Lora vs. Varela, 92 Phil. 373 (1972). 2. The Supreme Court has the inherent power to suspend the Rules of Court or to exempt any case from the operation of the Rules (De Guia vs. De Guia, G.R. No. 135384, April 4, 2001) for compelling reasons such as serving the ends of justice and preventing a grave miscarriage of justice. (Public Estates Authority vs. Yuico, G.R. No. 140486, February 6, 2001). 3. The Rules are to be liberally construed (Sec. 6, Rule 1, Rules of Court). Example: The provisions of Sec. 3(b), Rule 9 of the Rules of Court mandates that a motion to set aside the order of default must contain an affidavit of merit (an affidavit stating that the movant has a meritorious defense). However, in De Guia, the absence of an affidavit of merit in a motion to set aside the order of the court was held not to be a reason for the denial of the motion as long as the defenses of the defendant are set forth in the attached sworn answer. This was considered a substantial compliance of the rules. 4. In Public Estates Authority vs. Yuico cited earlier, the Supreme Court reiterated the rule that the payment of the docket fee in case of an appeal is mandatory on the part of the litigant and the court cannot be faulted for dismissing the appeal. However, it was likewise ruled that the mandatory character of the payment of the docket fee does not preclude the court from taking cognizance of the appeal in the interest of justice. It does not mean that non-payment of the fee mandates the court to dismiss the case. It was explained by the Supreme Court that the non-payment gives rise to a discretion on the court to either dismiss or take cognizance of the appeal. In a similar vein, although normally, periods within which to file pleadings or motions have to be strictly followed, the court in the interest of justice may disregard such periods. The court may also accept appeals filed even beyond the reglementary period when doing so would serve the ends of justice. In other words, the Supreme Court, in a particular case may suspend every rule in the Rules of Court. This is because the Rules of Court are to be liberally construed. (Sec. 6, Rule 1, Rules of Court). However, any deviation from the Rules must be for reasons of justice and other compelling considerations. One cannot hark on the rule of liberal construction for every violation of the Rules. (Digital Microwave Corp. vs. Court of Appeals, 328 SCRA 291 [20002]). 5. The Rules of Court are not penal laws and are not be given retroactive effect. (Bermejo vs. Barrios, 31 SCRA 764, 776 [1971]). Rules of procedure however, may be made applicable to actions pending at the time of their promulgation. Such rules are retroactive only in this sense. (Unity Fishing Development Corp. vs. Court of Appeals, G.R. No. 145415, February 2, 200; First Aqua Sugar Traders vs. Bank of the Philippine Islands, G.R. No. 154034, February 5, 2007) 6. The Rules of Court shall not apply to (a) election cases, (b) land registration, (c) cadastral, (d) naturalization, and (e) insolvency proceedings except by analogy or in a suppletory character and whenever practicable and convenient. (Sec. 4, Rule 1, Rules of Court). Examples: (1) An election case

cannot be dismissed for failure to attach a certification against forum shopping which is a requirement under Sec. 5 of Rule 7 of the Rules of Court. Election cases are not covered by the Rules of Court. (Barroso vs. Ampig, 328 SCRA 530 [2000]). (2) A protestee in an election case cannot insist on the right to present his evidence after his demurer to evidence was denied. The Rules of Court have no application to election cases. (Gementiza vs. COMELEC, G.R. No. 140884, March 6, 2001). (3) The Rules of Court are not applicable to court martial proceedings. (Magno vs. Villa, 199 SCRA 663 [1991]). (4) In a naturalization proceeding, the Court of Appeals can deny an application for naturalization on the basis of documents not formally offered in evidence during the trial. This procedure is contrary to Sec. 34 of Rule 132 providing that the court shall consider no evidence, which has not been formally offered but this rule however, does not apply to naturalization proceedings. (Ong Chia vs. Republic, 328 SCRA 749 [2000]). (5) As a rule, affidavits are hearsay but the argument that the affidavits attached to the case are hearsay because the affiants were not presented in court for crossexamination is not persuasive because the rules of evidence are not strictly observed in proceedings before administrative bodies like the NLRC where decisions may be reached on the basis of position papers only. Rules that prevail in judicial proceedings are not controlling before the labor arbiter and the NLRC (Bantolino vs. Coca-Cola Bottlers, Phil., Inc., G.R. No. 153660, June 10, 2003). 7. Philippine courts are both courts of law and equity. (U.S. vs. Tamparong, 31 Phil. 321. Equity cannot be invoked when there is a law applicable to a given case. (Smith Bell Co. vs. Court of Appeals, 267 SCRA 530 [1997]). Equity cannot supplant the law. (Tankiko vs. Cezar, 302 SCRA 559 [1998]. OVERVIEW OF ORDINARY CIVIL ACTIONS 1. Civil procedure starts with the filing of the complaint. Before filing the complaint, the plaintiff must initially determine if he has a cause of action against the defendant. Without this cause of action, he has no right to file a suit against the defendant. This means that the plaintiff has no right of action. 2. If a cause of action exists, the plaintiff may now start considering the preparation of the complaint. But before doing so, he must determine the court that should take cognizance of the action. This involves on inquiry into the rules on jurisdiction. He must also determine the place where the action is to be filed. This means that he must know the venue of the action. He must also know the persons to be impleaded. He needs to know therefore, the rules on parties. As a starting point, the plaintiff must know the concepts of action, right of action, cause of action, jurisdiction, venue and parties before filing the action. 3. In preparing his complaint, the plaintiff should remember that he should allege only ultimate facts, i.e. the facts essential to a partys cause of action. (Sec. 1, Rule 6, Rules of Court). This means that he should not allege conclusions of law and aver evidentiary facts. Conclusions are for the court to make while evidentiary matters are reversed for the trial. Conclusions and evidentiary matters in a pleading may be the subject of a motion to strike. 4. The complaint must be signed by the plaintiff or counsel representing him. (Sec. 3, Rule 7, Rules of Court). The counsel who signs the complaint should be aware of the significance of his signature. His signature constitutes a certificate by him that (a) he has read the pleading, (b) that to the best of his knowledge, information and belief there is good ground to support it, and (c) that it is not interposed for delay. (Sec. 3, Rule 7, Rules of Court).

Remember that an unsigned pleading has no legal effect. (Sec. 3, Rule 7, Rules of Court). It is a mere scrap of paper. 5. The address of the party or of the counsel must not be a post office address. (Sec. 3, Rule 7, Rules of Court). 6. The pleading need not be under oath. This means that a pleading need not be verified, except when a verification is required by law. A pleading is verified by an affidavit that the affiant (plaintiff or counsel) has read the pleading and that the allegations therein are true of his personal knowledge or based on authentic records. (Sec. 4, Rule 7, Rules of Court). A verification is only a formal and not a jurisdictional requirement. It does not affect the validity or the efficacy of the pleading, or the jurisdiction of the court. (Navarro vs. Tamayo, G.R. No. 141307, March 28, 2001; Robert Development Corporation vs. Quitain, 315 SCRA 150 [1999]). All pleadings in a summary procedure are to be verified such as the pleadings in an action for unlawful detainer and forcible entry. Other examples are the special civil actions of certiorari, prohibition and mandamus. 7. Since a complaint is an initiatory pleading, it must be accompanied by a certification against forum shopping. Note: A thorough preparation for the bar requires remembering the contents of the certification against forum shopping in Sec. 5, Rule 7 of the Rules of Court. The certification is mandatory under Sec. 5 of Rule 7 but not jurisdictional. (Robert Development Corporation vs. Quitain, 315 SCRA 150 [1999]) and must be signed by the party himself, it cannot be signed by his counsel. (Digital Microwave Corp. vs. Court of Appeals, 328 SCRA 286 [2000]). This is the general rule and the prevailing rule, subject of course to the power of the Supreme Court to suspend procedural rules. Example: While a petition for certiorari is flawed where the certificate of non-forum shopping certiorari was signed only by counsel and not by the party, this procedural lapse may be overlooked in the interest of justice. (Sy Chin vs. Court of Appeals, G.R. No. 136233, November 23, 2000; Hamilton vs. Levy, G.R. No. 139283, November 15, 2000). The failure to comply with the required certification is not curable by amendment and shall be a cause for the dismissal of the action without prejudice unless ordered by the court to be with prejudice. The general rule therefore, is to the effect that the dismissal is without prejudice where the order is silent on the matter. The dismissal for failure to comply with the requirements relative to the certification against forum shopping cannot be done motu propio. The rule requires that the dismissal be upon motion and after hearing. (Sec. 5, Rule 7, Rules of Court). However, if the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be a ground for summary dismissal. Here, no hearing and motion is required. The dismissal in this case is also with prejudice. Where the dismissal is without prejudice, this means the action can be refiled even if it is dismissed. When the complaint is dismissed without prejudice, the remedy of the plaintiff is not to appeal. This is because an order dismissing an action without prejudice is not appealable. The remedy provided for under Sec. 1 of Rule 41 is to avail of the special civil action of certiorari under Rule 65 (Sec. 1(h), Rule 41, Rules of Court). 8. After all those mentioned above have been considered and duly complied with, the complaint shall now be filed. The filing of the complaint is the act of presenting the same before the clerk of court. Sec. 2, Rule 13, Rules of Court). It may be filed personally or by registered mail. (Sec. 3, Rule 13, Rules of Court). The mailing through a private forwarding agency like

Federal Express, LBC, Johnny Air or UPS, is not allowed. (Benguet Electric Cooperative vs. NLRC, G.R. No. 89070, May 18, 1992). 9. The rule in this jurisdiction is that when an action is filed, the filing must be accompanied by the payment of the requisite docket and filing fees. (Ballatan vs. Court of Appeals, 304 SCRA 34 [1999]). The fees must be paid because the court acquires jurisdiction over the case only upon payment of the prescribed fees. Without payment, the complaint is not considered filed (Manchester Development Corp. vs. Court of Appeals, 149 SCRA 562 [1987]). Payment of the full amount of the docket fee is mandatory and jurisdictional. (Ayala Land, Inc. vs. Carpo, G.R. No. 140162, November 22, 2000) This rule was however, relaxed later by allowing the payment of the fee within a reasonable time but not beyond the prescriptive period. (Sun Insurance Office Ltd. vs. Asuncion, 170 SCRA 274 [1998]). If the fees are not paid at the time of the filing, the court acquires jurisdiction only upon full payment of the fees within a reasonable time as the court may grant, barring prescription. (Ballatan vs. Court of Appeals, 304 SCRA 34 [1997]). Sometimes a problem arises in the amount of the docket fee to be paid. This is because of the conflict between the name given to the action and the allegations of the complaint. Example: A complaint denominated as one for specific performance was filed. The allegations of the complaint as well as the prayer however, show that the true objective of the plaintiff and the prayer is to recover ownership and possession of real property. The name given to the action therefore, does not reflect the true nature of the action, which, although denominated as an action for specific performance, is actually a real action. Where the action is a real action, the docket fee is based on the value of the property. Normally the fee would be higher than the fee for specific performance. If the fee initially paid was for specific performance, there would hence, be a deficiency in the fee paid. Should the court dismiss the action? Following the liberal construction rule, the court should not dismiss the action. Instead, it should give the plaintiff reasonable time to pay the deficiency. Now, if the fee is not paid as directed, this is the time for the defendant to make his move and raise the matter of nonpayment. But he must raise the matter of non-payment seasonably. This means he must move for dismissal on jurisdictional grounds (non-payment of docket fee). He must do so in the trial court and not in the appellate court because he runs the risk of being estopped to raise the issue. 10. When the complaint is filed and the prescribed fees are paid, the action is deemed commenced. (Sec. 5, Rule 1, Rules of Court). The filing of the action is significant. First, the filing of the complaint enables the court to acquire jurisdiction over the person of the plaintiff. Second, it interrupts the running of the prescriptive period. (Art. 1155, Civil Code of the Philippines). 11. Dismissal by the plaintiff Sometimes after filing the action, the plaintiff may have second thoughts about the filing of the complaint. In this case, he may dismiss his own complaint. If the dismissal is before the adverse party had served an answer or a motion for summary judgment, he may have his own complaint dismissed by the mere filing of a notice of dismissal. Upon such notice, the court shall issue an order confirming the dismissal. The court has no discretion on the matter. The court does not order the dismissal. It merely confirms the dismissal because it is not the court which dismisses the action but the plaintiff himself. However, that the confirmation is necessary to give effect to the dismissal by the plaintiff. May the plaintiff refile the case later on? He can. He can do so because such a dismissal is without prejudice. He cannot refile the case however, in the following instances: (1) If the plaintiffs notice of dismissal states that it is with prejudice, or (2) If the same action based on or including the same claim has once been previously dismissed by the plaintiff. The latter is often referred to as the two dismissal rule. Example: Plaintiff filed an action

against Defendant in the RTC. Before Defendant responded to the complaint, Plaintiff filed a notice dismissing the complaint. A couple of months after he filed another complaint based on or including the same claim as the previous complaint based on or including the same claim as the previous complaint dismissed earlier. He again filed a notice dismissing the second complaint before Defendant served his answer to the complaint. May he refile the complaint? He may not refile the same. The rule is clear. He is now barred from doing so under the two dismissal rule. Under the Rules, the second notice of dismissal operates as an adjudication upon the merits. After service of the answer or a motion for summary judgment, the plaintiff can no longer have his action dismissed by mere notice. The plaintiff must now file a motion for the dismissal of his complaint. (Secs. 1-2, Rule 1, Rules of Court). The dismissal is now subject to the approval of the court. Let us consider the following example: Plaintiff filed a motion for the dismissal of his own complaint. The defendant however, prior to the service upon him of the plaintiffs motion had pleaded a compulsory counterclaim in his answer. The court dismissed not only the complaint but the compulsory counterclaim as well. The court reasoned that where the complaint is dismissed, the compulsory counterclaim becomes moot. Did the court act correctly? Here, the court acted erroneously. Under the Rules, the dismissal is limited to the complaint and is without prejudice to the defendants prerogative to prosecute his counterclaim in a separate action or in the same action. (Sec. 2, Rule 17, Rules of Court). Since Sec. 2 of Rule 17 makes no distinction as to the counterclaim involved, even a compulsory counterclaim is not deemed dismissed by the dismissal of the complaint. The defendant may then prosecute his counterclaim despite the dismissal of the complaint in a separate action or in the same action. (Pinga vs. Heirs of Santiago, G.R. No. 163663, June 30, 2006). 12. Amendments Instead of dismissing his complaint as explained in the immediately preceding paragraph, the plaintiff may decide to amend his complaint. Amendment of his pleading is a matter of right as long as the said amendment is made before the other party has served a responsive pleading. (Sec. 2, Rule 10). So if the plaintiff desires to amend his complaint before the defendant serves his answer, the amendment may be done as a matter of right and the court has no discretion on the matter. The amendment has to be accepted. If the court refuses to accept an amendment made as a matter of right, the court may be compelled to do so through the special civil action of mandamus. Note that an amendment made as a matter of right may, by the terms of Sec. 2 of Rule 10, be made only once. May the plaintiff amend his complaint as a matter of right even after a motion to dismiss has been served? He may. This is because a motion to dismiss is not a responsive pleading. Hence, his right to amend his complaint is not affected by the filing of the motion to dismiss. After a responsive pleading has been filed, amendment must be by leave of court. (Sec. 3, Rule 10, Rules of Court). This means for example, that after an answer has been served, an amendment may be done only with leave of court. Example: A complaint was filed. The defendant served an answer to the complaint. The amendment is no longer a matter of right because an answer has already been served by the defendant. The amendment would now require leave of court and the amendment has become a matter of judicial discretion. Although existing jurisprudence adopts a liberal policy on amendments, the amendment is intended for delay. It may also be denied if it would result in a change in the cause of action or defense or a change in the theory of the case. Also, when the court has no jurisdiction over the subject matter of the action and the amendment is for the purpose of conferring jurisdiction upon the court, the amendment shall not be allowed. Since the court is without

jurisdiction over the action, it has no jurisdiction to act on the motion for leave to amend. Comment: The cases (Gaspar vs. Dorado, 15 SCRA 335; Campos Rueda vs. Bautista, 6 SCRA 240), which prohibit amendments to a complaint for the purpose of vesting the court with jurisdiction, involve cases where an answer to the complaint has already been served operates to bring the amendment within the ambit of judicial discretion. Of course, common reason suggests that the court would have no jurisdiction to allow the amendment of a complaint over which it has no jurisdiction . in one case, the Supreme Court declared that the court not having jurisdiction over the original complaint, the court has no power to act on the admission of the amendment complaint. (Rosario vs. Carandang, 96 Phil. 845). Take note however, that there are decisions (Gumabay vs. Baralin, 77 SCRA 258; Soledad vs. Mamangun, 8 SCRA 110), which allowed such amendments when the amendment is made as a matter of right, i.e., before a responsive pleading has been filed. It would seem that the doctrine that amendments cannot be made to cure lack of jurisdiction should be made to apply only to a situation where a responsive pleading has already been served and not to a case where an amendment is made as a matter of right. What is the effect of the amendment of a pleading? An amendment pleading supersedes that it amends. (Sec 8, Rule 10, Rules of Court). This brings us to another question: If the old pleading is superseded, is a new summons required to be served upon the defendant? Answer: Although it is well settled that an amended pleading supersedes the original one, and no longer considered part of the record, it does not follow that new summons be served. Where the defendant has already appeared before the court by virtue of the summons in the original complaint (as when defendant had filed a motion to dismiss or an answer), the amended complaint may be served upon him without need for another summons even if new causes of action are alleged in the amendment. Conversely, a defendant who has not yet appeared must be served with summons. It is not therefore, the change of the cause of action that gives rise to the need to serve new summons. (Viason Enterprises Corporation vs. Court of Appeals, 310 SCRA 26). There are times when there are issues raised in the trial which have not been raised in the pleadings of the parties. If said issues 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 pleadings. This gives rise to a situation where the issues raised in the trial and the evidences thereto do not conform to the issues in the pleadings of the parties. As a remedy, existing rules allow a party to move for an amendment of the pleadings so they may conform to the evidence. Now, what if the pleadings are not amended to conform to the evidence? This is not a problem at all. 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 hence, deemed amended by implication. What if evidence to a matter not in issue in the pleadings is offered in the course of the proceedings and the other party objects on the ground that the evidence is irrelevant because it pertains to a matter not in issue. May the court sustain the objection? It is submitted that the court may sustain the objection but it may also however, allow the amendment of the pleadings if the presentation of the merits of the action and the ends of substantial justice will be observed thereby. It may likewise grant a continuance to enable the amendment to be made. (Sec. 5, Rule 10, Rules of Court). Are amended pleadings the same as supplemental pleadings? They are not. Supplemental pleadings allege facts which occur after the original pleadings have been filed. Note that supplemental pleadings must allege facts pertaining to the original cause of action in the complaint. Example: P files foreclosure proceedings on a loan of D based on a promissory note

secured by a real estate mortgage. D encounters by claiming damages against P. While the action was pending, P files another foreclosure proceedings on a loan also of D based on another promissory note secured by a real estate mortgage. The second loan was based on a different transaction. D now seeks the admission of a supplemental pleading alleging additional damages as a result of the second foreclosure suit. Should the supplemental pleading be admitted? Answer: It should not be admitted. The so-called supplemental pleading does not relate to the cause of action of the first foreclosure suit. Here there are different causes of action based on totally unrelated transactions. 13. When the complaint is filed and the requisite legal fees have been paid, the clerk of court shall issue the summons to the defendant. (Sec. 1, Rule 14, Rules of Court). The service of summons is required so the court may acquire jurisdiction over the person of the defendant and to comply with the requirements of due process. Another way of acquiring jurisdiction over the person of the defendant is his voluntary appearance in the action. Voluntary appearance shall be equivalent to service of summons. (Sec. 20, Rule 14, Rules of Court). 14. Although under the Rules, the defendant is required to answer the complaint within fifteen (15) days from service of summons (Sec. 1, Rule 11), the defendant need not answer. If there are matters in the complaint, which are vague or ambiguous or not averred with sufficient definiteness, he may file a motion for bill or particulars under Rule 12. It is not procedurally correct to file a motion to dismiss because the complaint is ambiguous. If the motion for bill of particulars is granted, the court shall order the submission of a bill of particulars. If the order is not obeyed, the court may order the striking out of the pleading or portions thereof to which the order was directed. (Secs. 4 & 5, Rule 12, Rules of Court). 15. Even when the allegations are now clear enough to enable the defendant to file his responsive pleading because the adverse party has already submitted a bill of particulars, the defendant need not file his answer immediately. He must first explore the possibility of filing a motion to dismiss under Rule 16. if there is no ground for a motion to dismiss, he has to file his answer. When a motion to dismiss is filed, all grounds available at the time the motion is filed must be invoked in the motion. This is required under the omnibus motion rule. Grounds not so invoked are deemed waived. The grounds not waived however, are lack of jurisdiction over the subject matter, litis pendencia, res judicata and prescription. (Sec. 8, Rule 15; Sec. 1, Rule 9). When a motion to dismiss is not filed, the grounds for motion to dismiss may be availed of as affirmative defenses in the answer (Sec. 6, Rule 16). No defense is waived because no motion to dismiss was filed. Note: There is a difference as to effects between filing and not filing a motion to dismiss in relation to waiver of defenses. 16. If the defendant does not file his answer within the time required by the Rules, he may be declared in default under the provisions of Sec. 3 of Rule 9. If the defendant answers but admits all the material allegations of the complaint, the answer is said not to tender an issue. There is therefore, no issue that could be the subject of a trial. In this case, the plaintiff or claiming party should file a motion for judgment on the pleadings. (Rule 34, Rules of Court). If the answer tenders an issue but the issue is not genuine as when the issue is one involving mere accounting or the exact amount of damages the remedy is a motion for summary judgment. (Rule 35).

Default: If the defendant does not file an answer, he may upon proper motion be declared in default. Take note that it is the failure to answer within the reglementary period that supplies the basis for declaring the defending party in default. Hence, it is error to declare an answering defendant in default. Remember: The court cannot motu propio declare the defendant in default. A motion has to be filed by the plaintiff. Query: What is the remedy of the party declared in default? The party declared in default may file a motion to set aside the order of default upon proper showing that his failure to do so was due to FAME (fraud accident, mistake or excusable negligence). This motion must be under oath and must be accompanied by an affidavit of merit, i.e., an affidavit that declares that the defaulting defendant has a meritorious defense. This meritorious defense is embodied in what is commonly known as an affidavit of merit. It is also good practice to attach the answer of the defendant to the motion to set aside the order of default. While normally, the affidavit of merit must accompany the motion, it has been held that this affidavit may be dispensed with if the defendant who fails to file an answer was never served with summons. In such a case, the order declaring him in default is VOID because the court did not acquire jurisdiction over the person of the defendant. This situation is a proper subject of certiorari proceedings because of the jurisdictional issue involved. (Ponio vs. IAC, 133 SCRA 577). The principles in default do not apply where the order of default is invalid because of lack of or invalid service of summons (Laus vs. Court of Appeals, 219 SCRA 688). Also, if there is a pending motion for extension of time to file an answer, in both cases, the period to file an answer has not yet lapsed. In De Guia vs, De Guia, G.R. No. 135384, April 4, 2001, the requirement of an affidavit of merit was liberally interpreted. Here, the requirement for the affidavit was deemed substantially complied with when the answer filed contained the defenses of the defendant and the answer was verified (under oath). Effect of declaration of default on the rights of the party declared in default: A party in default cannot participate in the trial but he is entitled to notice of subsequent proceedings. He must be also notified of the motion declaring him in default as well as the order of default. He is entitled to notices because a default order does not mean a waiver of all the rights of the defendant. By his default, he is not deemed to have been completely thrown out of court. After the defendant is declared in default, must the plaintiff be required to present his evidences to support his material allegations? The matter is addressed to the discretion of the court. The court may either (1) render judgment on the basis of the complaint, or (2) require the plaintiff to present evidence (ex parte). The reception of evidence may be delegated to the clerk of court. Extent of relief to be awarded: May the court award P1 million where the prayer of the complaint seeks for only P500,000? In default judgments, the court may not. A judgment rendered against a party declared in default shall NOT exceed the amount prayed or be different in kind from that prayed for. This is true even if during the reception of evidence the plaintiff proves a higher amount of damages than what has been alleged in the complaint. Also, unliquidated damages shall not be awarded. (Rule 9, Sec. 3(d)). Cases where no default is allowed: (1) Action for annulment of marriage; (2) Action for legal separation, and (3) Action for declaration of nullity of marriage. Instead of declaring the non-answering defendant in default, the court shall order the prosecuting attorney to determine whether or not a collusion exists between parties, and if there is none, to intervene for the State to see to it that the evidence submitted is not fabricated. Query: May the court motu propio declare the defendant in default for failure to timely file his answer? The court cannot do so. There must be a motion filed to that effect.

17. Answer: The answer contains the defenses of the defendant. These defenses are of two kinds: negative and affirmative defenses. The negative defenses are stated in the form of specific denials. The specific denials are described in Sec. 10 of Rule 8 (see them). If the denial is not one of those described, the denial is deemed to be general. A general denial is an admission. If all the material allegations of the complaint are denied by way of a general denial, the effect is an admission of those allegations. Under Sec. 11 of Rule 8, material allegations, (except unliquidated damages), not specifically denied are deemed admitted. Since the allegations are deemed admitted, there is no more issue triable between the parties. The plaintiff may now file a motion for judgment on the pleadings. A negative pregnant does not qualify as a specific denial. It is an admission. Example: A complaint alleges plaintiff extended a loan to Defendant in the amount of P500,000 on July 27, 2002 in Baguio City. The defendant in his answer alleges: Defendant specifically denies that Plaintiff extended a loan to Defendant in the amount of P500,000 on July 27, 2002. The answer is a mere repetition of the allegations made in the complaint. The answer is vague as to what it really denies. Is it the existence of a loan that is denied? Is it the amount? The date? The place? The effect of this kind of denial is an admission. Specific denials: One type of a specific denial is where the defendant alleges that he Is without knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint. This type of specific denial must be made sincerely and in good faith Example: Mr. D signs a promissory note in favor of Mr. P. Because Mr. D failed to pay despite demand, suit was brought against him. The complaint duly pleaded the promissory note as an actionable document. Mr. D denies the alleged promissory note by averring lack of knowledge of the note. This averment is clearly one in bad faith and shall be considered as an admission because it is absurd for Mr. D not to know of the promissory note he himself signed. Actionable documents: - If a complaint was filed based on a promissory note the promissory note is the basis of the action. How is this promissory note alleged in the complaint? It must be done in the following manner: The substance of this promissory note shall be set forth or stated in the pleading AND the original or copy thereof shall be attached to the pleading as an exhibit. When attached as an exhibit the promissory note shall be deemed a part of the pleading, i.e., it may be copied verbatim. (Sec. 7, Rule 8). When the manner of alleging the document is done in accordance with the Rules, the document becomes an actionable document. Now, what shall the adverse party do if he desires to contest the document? The adverse party has to do two things: (a) specifically deny the document, set forth what he claims to be the facts, and (b) deny the document under oath. Without an oath, he is deemed to have admitted the GENUINESS and DUE EXECUTION of the promissory note. Because of this admission, he can no longer deny that the note was forged or that he had no authority to execute the instrument. These defenses are barred by the admission. May he however, still defend by showing that the note was executed by fraud, or that the note has prescribed or was already paid? Yes, he can. These defenses are not barred by the admission. 18. Judgment on the pleadings: A judgment on the pleadings is proper where the answer of the defendant fails to tender an issue, or otherwise admits the material allegations of the other partys pleadings. Actually no issue is tendered when the defendant admits the material allegations of the complaint. This admission arises when (1) there is an actual admission of the allegations, or (2) the defendant makes a general denial instead of a specific denial. Note: Judgment on the pleadings is not proper in the following actions: (1) declaration of nullity; (2) annulment of marriage; or (3) legal separation. In these case, the material facts alleged in the complaint shall always be proved. (Rule 34, Rules of Court).

19. Counterclaim; cross-claim; third-party complaint; complaint in intervention: If the defendant has a claim against the plaintiff, he incorporates in his answer a pleading called a counterclaim. This is a pleading, which a defending party files against the opposing party. (Sec. 6, Rule 6). It is therefore, a claim by the defendant against the plaintiff. In a counterclaim, the original defendant becomes the plaintiff, and the original plaintiff, the defendant. A counterclaim may either be compulsory (Sec. 7, Rule 9) or permissive. If there are two or more defendants, one defendant may file a claim against a co-defendant. This is done through a pleading called a cross-claim. (Sec. 8, Rule 9). If the defendant wants to bring in a person who is not yet a party to the suit, he may do so with leave of court and file a third-party complaint. (Sec. 13, Rule 6). The plaintiff, on the other hand may wish to answer the defendants answer. This answer is a pleading called reply. (Sec. 10, Rule 6). A reply is not mandatory. Even if no reply is filed, the allegations of the answer are anyway deemed controverted or denied. The Rules actually make the denial for the plaintiff. Sometimes, someone who is not a party to the action feels and believes that he has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both. In this case, he may, with leave of court, join the fray and he may do so by filing a complaint for intervention. (Rule 19, Rules of Court). Examples: (1) Mr. P sues Mr. D for a sum of money. Mr. D also claims that he incurred hospital bills as a result of the unjustified complaint of Mr. P. The claim of Mr. D is a counterclaim. Since this counterclaim arises from the complaint, it is called a compulsory counterclaim. This counterclaim must be set up in the same action. If not set up, it will be forever barred. (2) Plaintiff filed an action to recover ownership and possession of a land occupied by defendant. Judgment against defendant. Later defendant filed an action to recover the cost of the improvements he introduced in the land. This claim shall be barred. This claim should have been set up as a counterclaim in the action filed by plaintiff. It is now barred because the counterclaim is compulsory. (Baclayon vs. Court of Appeals, 182 SCRA 761). (3) Plaintiff filed an action for a sum of money against defendant. The latter claims that plaintiff is liable to him for damages arising from a quasi-delict, which occurred prior to the filing of the action. The claim of defendant is a permissive counterclaim. It has no connection to the subject matter of the complaint. It is not barred even if no set up in the action because it could be the subject of an independent action. (4) Plaintiff, lessee filed an action for specific performance against lessor in the RTC so the latter would comply with certain obligations in the lease contract. Lessee filed a counterclaim for unlawful detainer on the ground of expiration of the lease. Is this a compulsory counterclaim? It is not. A compulsory counterclaim must be within the jurisdiction of the court both as to amount and nature. The counterclaim is within the jurisdiction of the MTC, which has jurisdiction over cases of unlawful detainer. An unlawful detainer case must be independently filed in the MTC and not by way of counterclaim in a case. Also, if the counterclaim is a labor claim, it cannot be cognizable by a regular court. NOTE: A compulsory counterclaim need not be answered, otherwise the plaintiff may be declared in default as to the counterclaim. A docket fee must be paid. (5) A depositor sued the bank and its cashier for money deposited with the bank. The bank alleges it never received the money from the cashier. What should the bank do? The bank should file a cross-claim against the cashier. (6) Plaintiff sues the judgment creditor and the Sheriff for selling plaintiffs property. What may the sheriff do? The Sheriff may file a crossclaim against the judgment creditor. (7) P sues D, and S, the surety. Against whom may S, the surety have recourse? Against D. S may then file a crossclaim against D. (8) P sues D on a promissory note. D loaned the money he borrowed to T. What may D do? D may file a third-party complaint against T

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for contribution. (9) S sells a car to B. Later O sues B to recover the car because he is the true owner of the same. B may file a third-party complaint against S to enforce the warranty against eviction. (10) P, whose store was burned filed a claim against the insurance company. The insurance company refused to pay and defended by claiming that the loss was due to the willful act of P. The insurance company then filed a third-party complaint against the re-insurance company for indemnity. May the re-insurer assert as a defense that the plaintiff, P, caused the loss? It can. A third party defendant under Sec. 13 of Rule 6 may allege in his answer defenses, which the thirdparty plaintiff may have against the original plaintiff. NOTE: The third-party defendant may not however, ordinarily file a counterclaim against the original plaintiff, P for lack of privity UNLESS the counterclaim is shown to be in respect to the original plaintiffs claim against the third-party plaintiff. Thus, the re-insurer may only file a counterclaim against the plaintiff P, if the said counterclaim is in respect to the claim of P against the insurance company. (11) Debtor and surety signed a promissory note jointly and severally. If a complaint is filled by the creditor against the surety alone, how may the latter claim against the debtor? By filing a third-party complaint against the debtor. (12) P sues D for damages arising out of a vehicular accident. D claims that it was T who was the proximate cause of the mishap. D may file a third-party complaint against T for subrogation. (13) Creditor files an action against Debtor No. 1 alone who together with Debtor No. 2 signed a note as solidary debtors. Debtor No. 1 may file a third-party complaint against Debtor No. 2 for contribution. Note: in a solidary obligation, the plaintiff need not implead the other debtor because anyone among the debtors may be required to pay the entire debt. The other debtor is not an indispensable party but only a necessary party. (14) P sues D for recovery of a parcel of land. D acquired the land from E who in turn acquired it from F. May D file a third-party complaint against F? No. There is no privity between D and F. D should file a third-party complaint against E and E should file a fourth-party complaint against F. NOTE: Summons on third-party defendant is required to acquire jurisdiction over his person (Feria). If the complaint is dismissed, the third-party complaint will also be necessarily dismissed. (Go vs. Court of Appeals, 100 SCRA 549). The filing of a third-party complaint requires LEAVE of court. NOTE: A third-party complaint seeks affirmative relief. No such relief is sought for in declaratory relief, which merely seek a declaration of ones legal rights and duties under a statute, executive ordinance, or governmental regulation. However, it was held that a counterclaim may be filed in a petition for declaratory relief. (Visayas Packing vs. Reparations Commission 155 SCRA 542). (15) P sells five trucks to XYX Partnership. Before he was paid the purchase price, the partnership was dissolved. In the judicial winding up of the partnership assets, what may P do to protect his interest? P may file a complaint in intervention. (16) Creditor sues S, his surety in a monetary obligation. May D, the principal debtor intervene? He may. A judgment against S will prejudice D because S will have to sue D for reimbursement. (17) A and B are locked in a civil dispute over a parcel of land. C claims the land as his but he is not a party to the action. What may C do? He should file a complaint in intervention. NOTE: Intervention must be with LEAVE of court. It is not an independent action, but is an auxiliary supplemental to the existing litigation. 20. A reply is the last possible pleading that could be filed in the action. It is the responsive pleading to an answer. You do not file a reply to a counterclaim or cross-claim. What you do is to file an answer, not a reply. A reply is not mandatory if your purpose is to deny the new matters alleged in the answer. Even if not filed, the allegations of new matters by the defendant in his answer are deemed controverted or denied anyway. A reply must however, be filed if the defendants defense is based on a document duly pleaded. The reply should be filed because if such document, which forms the basis of the defendants defense, is not specifically denied under oath, its genuiness and due execution shall be deemed admitted. To avoid this

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admission the reply must contain a specific denial. Further, the reply must be under oath. (Toribio vs. Bidin, 134 SCRA 162). An old case held that if the defendants answer alleges the defense of usury, a reply under oath must be made. If not, the allegation of usury will be deemed admitted. (Sun Bros. vs. Caluntad, 16 SCRA 895). It is submitted that the phraseology of the present rule on the matter has made the applicability of the Sun Bros. case suspect. Under Sec. 11 of Rule 8 what need to be specifically denied under oath is an allegation of usury in a COMPLAINT to recover usurious interest and not a defense of usury in the answer. 21. Pre-trials: After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move that the case be set for pre-trial. The motion is an ex parte motion. Because it is an ex parte motion, notice need not be served on the defendant. Remember that the filing of the motion to set the case for pre-trial is the duty of the plaintiff. It is not the duty of the defendant. Remember too that to move for a pre-trial before the last pleading has been filed is premature. Thus, when there is an unresolved motion to dismiss or a motion for bill of particulars, or when no answer has yet been filed, a pre-trial conference is premature. (Rule 18, Rules of Court). The plaintiff must appear in the pre-trial. (Sec. 4, Rule 18). What is the consequence of the non-appearance of the plaintiff? Unless excused, or when a representative appears in his behalf duly authorized in accordance with the Rules, the failure to appear by the plaintiff shall be a cause for dismissal of the action. Under the previous Rules, the plaintiff who fails to appear is declared non-suited. Example No. 1: Mr. Plaintiff did not appear in the pre-trial without a valid excuse and the action is dismissed. He wants to know from you if he can refile the case. What would your advice be? I would advice him that he cannot refile the case. This is the general rule. The dismissal as a rule is a dismissal with prejudice. The only way the plaintiff can refile the case is when the order of dismissal itself declares that the dismissal is without prejudice. If the dismissal is with prejudice and the plaintiff can no longer refile the case, what remedy is left to the plaintiff? He can appeal from the order of dismissal. Why? The remedy is appeal from the order of dismissal because the dismissal for failure to appeal in a pre-trial hearing is an adjudication on the merits. It is final in character and not a mere interlocutory order. (Sec. 5, Rule 18). Example No. 2: The plaintiff appeared in the pre-trial. The defendant did not. What may the court do? The court may order that the plaintiff be allowed to present his evidence ex parte and render judgment on the basis thereof. In the previous Rules, the defendant in this case was declared as in default. The words, as in default, no longer appear in the present rules. Example No. 3: Note that the Rules require the parties to file their pretrial briefs and serve the same on each other at least three (3) days before the pre-trial. Suppose the plaintiff failed to file the required brief and the court dismissed the action, Did the court act correctly? It did. The failure to file the pre-trial brief has the same effect as the failure to appear at the pretrial. The remedy of the plaintiff is to file a motion for reconsideration showing that his failure to file a pre-trial brief was due to fraud, accident, mistake, or excusable neglect. (Saguid vs. Court of Appeals, G.R. No. 150661, June 10, 2003). Example No. 4: During the pre-trial conference, the defendant manifested that he has no interest in any form of amicable settlement. The case was set for a second pre-trial conference. Notice was duly sent. Defendant did not appear. The court issued an order allowing the plaintiff to

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present his evidence ex parte because of the defendants failure to appear. Did the court act correctly? It did not. Once a party manifests his opposition to an amicable settlement, said party may no longer be compelled to attend another pre-trial conference. (Pioneer Service vs. Hontanosas, 78 SCRA 448; Insurance Company of North America vs. Republic, 21 SCRA 887). 22. Before the trial, any party may avail of any of the modes of discovery from Rules 23-29. Note: IN Bar 2000, the examinees were asked to give and briefly describe at least five (5) modes of discovery. (Bar 2000, Question No. 5). Example: The defendant filed a motion for the production and inspection of the notes, papers and documents compiled by the attorney for the plaintiff in preparation for the litigation. The motion was granted. The attorney refused to comply with the order. May the attorney be compelled to produce his documents? No. Under the work product rule, said documents are privileged. NOTE: The rules of discovery are cumulative, not alternative. The fact that a party has resorted to a particular method of discovery will not bar him from using other methods (Fortune Corp. vs. Court of Appeals, 299 SCRA 376). Note that while the rule requires that only ultimate facts must be alleged in a pleading, the modes of discovery may inquire into evidentiary facts. Let us suppose that a motion for bill of particulars filed by the defendant was denied. May he avail of the modes of discovery even if the matters desired in the denied motion are the same matters sought to be discovered? He may. A bill of particulars is for the purpose of clarifying the allegations of the adverse partys pleading. Yet the bill of particulars would refer only to ultimate facts since evidentiary facts are not proper in a pleading. On the other hand, the modes of discovery could elicit evidentiary facts on the matters subject of the prior motion for bill of particulars. Uses of depositions: A deposition may be used to impeach or contradict the testimony of the deponent. If the deponent is an adverse party, his disposition may be used not only to impeach him but also to show admissions on his part. Query: Plaintiff takes the depositions of X. There was no proof that he would not be available during the trial. (a) May his deposition be taken? It may be taken. His inability to attend the trial does not preclude the taking of his deposition. Such matter is not a requirement for the taking of persons deposition. (b) By taking the deposition of X, does X now become the witness of the plaintiff? He does not. A party shall not be deemed to make a person his own willness for any purpose by taking his deposition. (Sec. 7, Rule 23). The plaintiff served upon the defendant a written request for admission of the genuiness of several documents as well as relevant and material facts. The defendant ignored the request. What is the effect? Each of the matters of which an admission is requested shall be deemed admitted. (Sec. 2, Rule 26). A party is required to serve upon the adverse party written interrogatories. There is a consequence for failure to do so. A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. (Sec. 6, Rule 25). 23. Effect of failure to file and serve request for admissionUnless otherwise allowed by the court for good cause shown and to prevent a failure of justice, a party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts (Sec. 5, Rule 26).

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24. After trial (Rule 30), the court shall now render a judgment. A losing party may avail of certain remedies fore the protection of his rights. These remedies are: (a) Before finality of the judgment 1. motion for reconsideration (Rule 37) 2. motion for new trial (Rule 37) 3. appeal (Rules 40-45) i. ordinary appeal (Rules 40-41) ii. petition for review (Rule 42) iii. appeal by certiorari (Rule 45) (b) After finality of the judgment 1.) petition to relief (Rule 38) 2.) petition for certiorari (Rule 65) 3.) annulment of judgment (Rule 47) Note: A party still has remedies even if the judgment is already final and executory. CAUSE OF ACTION 1. A cause of action requires the following elements: (a) a right of the plaintiff; (b) an obligation on the part of the defendant to respect or not to violate such right; (c) an act on the part of the defendant violating the right to the plaintiff. (Far East Bank & Trust Company vs. Court of Appeals, 341 SCRA 485 [2000]). 2. In determining the existence of a cause of action, only the statements in the complaint may be properly considered. It is error for the court to take cognizance of external facts or to hold preliminary hearings to determine its existence. (Diaz vs. Diaz, 331 SCRA 302, 316 [2000]). The lack of a cause of action must appear on the face of the complaint and its existence may be determined only by the allegations of the complaint, consideration of other facts being prescribed and any attempt to prove extraneous circumstances not being allowed. (Viewmaster Construction Corporation vs. Roxas, 335 SCRA 540 [2000]). Note however, that the annexes to the complaint may be considered in determining whether or not a complaint states a cause of action because such annexes are considered parts of the complaint. (SeaLand Service, Inc. vs. Court of Appeals, 327 SCRA 135 [2000]). Example: P sues D on a culpa aquiliana theory. D moves to dismiss on the ground that the complaint fails to state a cause of action. In the hearing of the motion, the court required the plaintiff to present evidence on his claims to determine whether or not he has a cause of action. Is the court correct? The court is not correct. The allegations of the complaint will tell whether or not the complaint states a cause of action. Failure to state a cause of action does not mean that the plaintiff has no cause of action. It only means that the plaintiffs allegations are insufficient for the court to know that there was a violation of his rights by the defendant. Thus, even if indeed the plaintiffs right was violated, if the same is not set forth in the complaint, the pleading fails to state a cause of action even if there really is a cause of action. 3. Under Rule 16, the ground for dismissal in relation to a cause of action is NOT lack of a cause of action or no cause of action. The ground is that the pleading asserting the claim STATES NO CAUSE OF ACTION. (Sec. 1(g), Rule 16; San Lorenzo Village Association, Inc. vs. Court of Appeals, 288 SCRA 115 [1998]). In Enojas vs. COMELEC, 283 SCRA 229, [1998]), the Court held that the ground for dismissal based on the fact that the pleading asserting the claims states no cause of action is different from the ground that the case of the claimant should be dismissed for lack of a cause of action. The first is

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raised in a motion to dismiss under Rule 16 before a responsive pleading is filed and can be determined only from the allegations of the pleading and not from evidentiary matters. The second is raised in a demurrer to evidence under Rule 33 after the plaintiff has rested his case and can be resolved only on the basis of the evidence he has presented in support of his claim. (See also Dabuco vs. Court of Appeals, 322 SCRA 853 [2000]). 4. ACTIONS: The examinee needs to master the kinds of actions specially the distinction between a real and a personal action and the distinction among an action in personam, quasi in rem or in rem. Note: The nature of the action is not dependent upon the name given by the pleader. It is dependent upon the allegations of the complaint. Thus, where the allegations of the complaint state that the actual transaction between the parties was not a sale but an equitable mortgage, the trial court correctly resolved the matter in issue even if the action was erroneously labeled as an action for reformation. (Lorbes vs. Court of Appeals, G.R. No. 139884, February 15, 2001). 5. The distinction between a real action and a personal action is important for the purpose of determining the VENUE of the action. A personal action is transitory, i.e., venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff. A real action is local, i.e., venue depends upon the location of the property involved in the litigation. An action is real when it is founded upon the privity of real estate. That means that realty is the subject matter of the action. It must be remembered that not every action involving a real property is a real action because the realty may only be incidental to the subject matter of the suit. To be a real action, it is not enough that it must deal with real property. It is important that the matter in litigation must also involve any of the following issues: title to, ownership, possession, partition, foreclosure or condemnation or real property. Examples: An action for damages to real property, while involving realty is a personal action because although it involves real property, it does not involve any of the issues mentioned. An action to recover possession of real property (ejectment) plus damages is a real action because possession of the real property is involved. An action to recover possession of a personal property is a personal action. An action for a declaration of the nullity of marriage is a personal action (Tamano vs. Ortiz, 291 SCRA 584). An action for specific performance is a personal action (Siosoco vs. Court of Appeals, 303 SCRA 186). Although a complaint is entitled to be one for specific performance, the action is actually a real action for the recovery of land where the plaintiff asks that a transfer certificate of title covering said land be issued to him. The action must therefore, be filed where the property is situated. Also, if the action is denominated as one for specific performance, but the plaintiff seeks for the issuance of a deed of assignment in his favor of certain shares of stocks to regain ownership and possession of said shares, the action is not one for specific performance but a personal action for the recovery of property. The docket fee therefore, should be computed based on the value of the property and not based on the docket fee for specific performance (National Steel Corporation vs. Court of Appeals, 302 SCRA 522, 530).

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If the question involves the venue of an action, the examinee must follow the following steps: (a) Ask first whether the action is real or personal. (b) After determining the nature of the action, then apply the rules on venue under Rule 4. For instance, an action to annul a sale of a land located in Baguio City must be filed in Baguio City. For the purpose of venue determination, the action is a real action and must be filed in the place where the property is situated regardless of the residence of the parties. (Emergency Loan Pawnshop, Inc. vs. Court of Appeals, G.R. No. 129184, February 28, 2001). An action for ejectment must be filed where the property subject of the action is situated. Do not consider the residence of the parties. Improper venue: Although the venue is technically improper, the venue is still proper if the defendant does not object. Venue is not a matter of substantive law but is primarily for the convenience of the parties. It is up for the defendant to question the venue. If he does not raise the issue of venue, the Court HAS NO AUTHORITY to motu propio dismiss a case for improper venue. Exception: In cases covered by summary procedure, the court may dismiss a case outright on any of the grounds apparent in the complaint. This of course includes improper venue. The dismissal here need not be preceded by a motion to dismiss because it may be done by the court motu propio (Sec. 4, Rules of Summary Procedures). Venue can be stipulated upon and may have the effect of changing the rules on venue provided for in the Rules. Example: P resides in Manila. Defendant resides in Quezon City. The written contract stipulates that any suit arising from a violation of a contract shall be filed only in Pasay City. P sues D for damages arising from an alleged breach of contract. Action was filed in Quezon City. Is venue improper? Venue is improper. The stipulation to file the action only in Pasay City has the effect of ruling out the residences of the parties as possible venue of the action because of the exclusive character of the stipulation. The suit cannot therefore, be filed anywhere other than Pasay City. What is the effect if the stipulation merely provides, shall be filed in Pasay City? The effect is merely to add Pasay City as a venue aside from Manila and Quezon City. Hence, aside from Manila and Quezon City, another venue of choice is Pasay City. NOTE: Venue is not jurisdictional in a civil case but is jurisdictional in a criminal case. Query: If a motion to dismiss based on improper venue is denied, may the defendant appeal? He cannot. An order denying a motion to dismiss is merely interlocutory. It is not final. Only final orders or judgments maybe appealed. The normal remedy is to file an answer and interpose the ground as an affirmative defense, go to trial and appeal from the adverse judgment. However, if the denial is tainted with grave abuse of discretion amounting to lack of jurisdiction, the remedy is certiorari and prohibition (Emergency Loan Pawnshop vs. Court of Appeals, G.R. No. 129184, February 28, 2001). Query: The property of the judgment debtor located in Makati City was foreclosed. Where should the action be filed if the plaintiff resides in Manila and the defendant in Quezon City? The action shall be filed in Makati City, the place where the property is situated. Foreclosure of real property is a real action. Query: There was a deficiency after the sale. The debt sought to be recovered is P3 million. The property was sold for only P2.5 million. The

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judgment creditor successfully obtained a deficiency judgment. The defendant debtor is a resident of Quezon City and the plaintiff creditor, a resident of Manila. The property foreclosed is located in Makati City. Where should the action to enforce the deficiency judgment be filed? Either in Manila or Quezon City at the option of the creditor plaintiff. An action to recover the deficiency is a personal action and so the venue depends on the residences of the parties. 6. An action in personam is not necessarily a personal action. Nor is a real action necessarily an action in rem. An in personam or an in rem action is a classification of actions according to the OBJECT of the action. A personal and real action is a classification according to FOUNDATION. It is in rem when directed against the whole world. An action for ejectment is a real action but is in personam because it is directed against a particular defendant. While an action for annulment of marriage is a personal action because it is not founded on real estate, it is an in rem action because the issue of the status of a person is one directed against the whole world. 7. Why is there a need to make a distinction between an action in personam and an action in rem? This distinction is vital for a party to know whether or not jurisdiction over the person of the defendant is required. Such jurisdiction is vital when the action is in personam. In this kind of action, jurisdiction over the person of the defendant is mandatory. In an in rem or quasi in rem action, what is required is jurisdiction over the res and not jurisdiction over the person of the defendant. Where the defendant is a resident of the Philippines and the action against him is in personam, jurisdiction over him is acquired by faithfully complying with the summons under Sec. 6 of Rule 14 (service in person) or in case this type of summons is not feasible, by availing of Sec. 7 of Rule 14 (substituted service). Substituted service is not the general rule. It applies only if service in person cannot be done within a reasonable time despite the honest efforts of the sheriff. Jurisprudence requires that efforts be exhausted to serve the defendant in person and such efforts need be stated in the sheriffs return. Compliance with this requirement is mandatory to justify a subsequent substituted service. Summons by publication, as far as existing jurisprudence is concerned, will not enable the court to acquire jurisdiction over the person of the defendant. (Pantaleon vs. Asuncion, 105 Phil. 761; Citizens Surety & Insurance Co., Inc. vs. Nieto, 125 SCRA 758, Consolidated Plywood vs. Breva, 166 SCRA 589). There are however, exceptions to this rule where the defendant is a resident of the Philippines. These are: (a) where the resident defendants identity is unknown or his whereabouts are unknown (Sec. 14, Rule 14); (b) Where the resident defendant is temporarily out of the Philippines. These exceptions apply in ANY ACTION, hence, even if the action is in personam. NOTE: Summons may be dispensed with if the defendant voluntarily appears because under Sec. 20 of Rule 14, voluntary appearance is equivalent to service of summons. If the defendant in an action in personam is a non-resident, jurisdiction over his person is acquired by service of summons upon him in person within the Philippines (Asiavest Limited vs. Court of Appeals, 296 SCRA 529). Summons by publication will not be applicable and unlike in the case of residents, is not subject to any exceptions. Now, if the action is in rem, jurisdiction over the person of the defendant is not required because what is necessary is jurisdiction over the res. In an action in rem, summons by publication is available. The summons by publication is coupled with a registered mail of the summons and the

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order of the court directed to the defendant at his last known address (Sec. 15, Rule 14). If a non-resident is sued for collection of a sum of money, jurisdiction over him can be obtained only by service of summons upon him in person within the country if he does not make a voluntary appearance. Substituted service would not work because he has neither a residence in the Philippines nor a place of business. A residence or a regular place or business is required to effect substituted service. Note that jurisdiction over the person of the defendant is mandatory in this case because an action for a sum of money is an action in personam. Mere summons by publication will not enable the court to have jurisdiction over him. But if for example, the suit against such a non-defendant is a suit for annulment of his marriage to a Philippine resident, a suit for annulment may prosper despite the absence of the non-resident defendant in the Philippines. This is because the action for annulment is an action in rem. Summons by publication together with registered mail in the defendants last known address will suffice because what the court merely needs is jurisdiction over the res. Other forms of summons (extra-territorial service) provided for in sec. 15 of Rule 14 may also be available. In action for specific performance against a non-resident who does not reside in the Philippines, summons by publication will not enable the court to acquire jurisdiction over him. An action for specific performance is an action in personam (Gomez vs. CA, G.R. No. 127692, March 11, 2004). 7. When the defendant is a non-resident and he is not found in the country, summons may in certain instances, be served upon him extra territorially in accordance with Rule 14, Section 15. Under this provision, there are only four (4) instances when extraterritorial service of summons is proper, namely: (a) when the action affects the personal status of the plaintiff; (b) when the action relates to, or the subject of which is property within the Philippines, in which the defendant claims a lien or interest, actual or contingent; (c) when the relief demanded in such actions consists, wholly or in part, and excluding the defendant from any interest in property located in the Philippines; and (d) when the defendant non-residents property has been attached within the Philippines. Note that the above actions are either in rem or in personam. Extraterritorial service therefore, can only be effected when the action is either in rem or quasi in rem and the defendant is a non-resident who at the same time is not found in the Philippines. Jurisdiction over the person of the defendant here is not required. This explains why summons by publication may be effected in these kinds of actions. Instead of jurisdiction over the person of the defendant, the rule merely requires jurisdiction over the res. Publication is allowed to enable the court to acquire this type of jurisdiction. If the action however, against the non-resident defendant is in personam, extraterritorial service cannot be availed of. When the defendant in an action in personam is a non-resident, personal service of summons within the state is essential to the acquisition of jurisdiction over the person. This cannot be done if the defendant is not physically present in the country. The court thus, cannot acquire jurisdiction over his person. So when the action is for the recovery of a sum of money against the non-resident defendant, the summons by publication is ineffective for the trial court to acquire jurisdiction over the person of the defendant. Any judgment rendered against him is therefore, null and void for lack of jurisdiction over the defendant. (Banco do Brazil, 333 SCRA 545 [2000]). Example No. 1: An American tourist while in the Philippines, incurred hotel bills of P2 million. Without paying his bills, he surreptitiously left the country. The hotel filed an action for a sum of money and with leave of court effected summons by publication. The defendant made no appearance in any

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form. Judgment was rendered against him. Comment on the judgment. Judgment was rendered without jurisdiction over his person. The summons by publication did not enable the court to acquire jurisdiction over him. The action is an action in personam. Example No. 2: Mr. D is a balikbayan, a former Filipino and a naturalized Canadian citizen. He visited the country to attend the funeral of his father from whom he inherited a parcel of land. He obtained a loan while in the Philippines and executed a real estate mortgage on his inherited land. He left without paying the debt. An action to foreclosure the mortgage was filed. How may the court obtain jurisdiction over the person of Mr. X? There is no way unless he makes a voluntary appearance. He is already out of the country. Besides, jurisdiction over the person of the defendant is not necessary under the facts of the case because the action for foreclosure is not an action in personam. Foreclosure suits are in rem or quasi in rem actions. In these kinds of actions, jurisdiction over the person of the defendant is not necessary. Summons by publication and other modes of extra-territorial service are enough to acquire jurisdiction over the res. May the court therefore, validly render a judgment in the foreclosure proceedings? The court can. It has jurisdiction over the res as long as any of the modes of summons provided for under Sec. 15 0f Rule 14 on extra-territorial service is complied with. Extra-territorial service includes summons by publication and mailing by registered mail. 8. There are instances where a non-resident defendant has properties in the Philippines. In an action in personam, as when the suit is for a sum of money or for damages, there is no problem in acquiring jurisdiction over his person if he is in the Philippines because he may be served summons by using the service under Sec. 6 of Rule 14 (service in person). If however, he is already out of the country when the summons is to be served, service in person would not be possible. Summons by publication would likewise be ineffective to acquire jurisdiction over his person. The remedy is to file the suit and at the same time avail of the provisional remedy of attachment. Following established principles, jurisdiction over the person of the defendant would no longer be required when there is a writ of attachment over the defendants properties 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 would now be available and thereafter, the suit can proceed despite the absence of the defendant because it would now be the property and not the person of the defendant which would be the object of the judicial power. 9. There is no such action called annotation of lis pendens. Notice of lis pendens is ordinarily recorded without the courts intervention. The annotation of lis pendens is not proper where the action is in personam like recovery of a sum of money and damages. For the annotation to be proper, the action must be one affecting title to property. (AFP Mutual Benefit Association vs. Court of Appeals, 327 SCRA 203, 215 [2000]). 10. A party is barred from taking judicial action against another if by the clear terms of the agreement, arbitration is the mode provided by which damages and/or indemnity may be recovered. (Sea-Land Services, Inc. vs. Court of Appeals, 327 SCRA 135 [2000]). 11. SPLITTING A SINGLE CAUSE OF ACTION: This practice is discouraged because it breeds multiplicity of suits. Example: The act of a defendant in taking possession of the plaintiffs land by means of force and intimidation gives rise to two remedies: (a) recovery of possession, and (b) damages arising from the loss of possession. Both remedies cannot however, be the subject of two separate actions and must be alleged and claimed in only one complaint. Only one action should be brought. To file a separate action for

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each remedy is to split a single cause of action. Since the rule is that all remedies should be alleged in a single complaint, it goes without saying that those not therein included in the action filed cannot be the subjects of subsequent complaints because they are barred. Hence, an action for forcible entry should include not only the plea for restoration of possession but also claims for damages arising out of the forcible entry. The claim for damages cannot be filed separately. (Progressive Development Corporation, Inc. vs. Court of Appeals, 301 SCRA 637). NOTE: Splitting a single cause of action is a ground for dismissal based on litis pendentia or lis pendens. If a final judgment had been rendered when the second action is filed, the latter may be dismissed based on res judicata. The rule against splitting a single cause of action applies not only to complaints but also to counterclaims and cross-claims. To interpose a cause of action in a complaint and also invoke it in a complaint against the same person or party would be splitting a single cause of action (Mariscal vs. Court of Appeals, 311 SCRA 51). Examples: (a) A complaint for the quieting of title (claim of ownership) of the land must include any claim for the income and fruits of the land. The claim for income is merely incidental to the claim of ownership. (b) An action for partition and a claim for improvements on the land cannot be split in two separate complaints. When you file an action for partition, you have to claim the value of the improvements in the same action. (c) Where a note is secured by a mortgage, the creditor has a single cause of action. Although the debt and the mortgage are two separate agreements, the mortgage is subsidiary to the debt or loan and both refer to the same obligation. The creditor therefore, cannot file both an action for foreclosure of the mortgage and another action to collect a sum of money. (d) Where an obligation is to be performed at different times and therefore, divisible, each breach is a distinct cause of action. This situation occurs in obligations to be performed in installments where each default of an installment gives rise to a distinct cause of action. Each default may therefore, be the subject of a separate suit. If however, suit is filed only after several breaches, all such breaches should be embodied under a single complaint only. Also, where the breach is total as when the defendant gives notice of his refusal to comply with the contract at the outset, there is an anticipatory breach and there can only be one action filed. 12. JOINDER OF CAUSES OF ACTION: A party may in one pleading assert, in the alternative or otherwise, as many causes of action as he may have against an opposing party (Rule 2, Section 5). To illustrate: D is the debtor of C for P150,000 due on September 5, 2007. D likewise owes C P350,000 due on September 13, 2007. D has not paid the debts despite demand. Each debt is a separate cause of action because each is the subject of different transactions. However, under the rule on joinder of causes of action, C may file a single suit against D for the collection of both debts, despite the claims being separate causes of actions and having arisen out of different transactions. Remember that when there is only one plaintiff and one defendant, you do not have to ask whether or not the causes of actions arose out of the transaction or series of transactions. This question is only relevant when there are multiple plaintiffs or multiple defendants. In the hypothetical just discussed, is C obliged to join the causes of action against D? No. C is not obliged to do so. He may file a single suit for each of the claims or simply a single suit for both because joinder of causes of action is not compulsory. It is merely permissive. In case C decides on the joinder, the suit shall be filed in the Regional Trial Court because the jurisdictional amount is within that courts jurisdiction. When the claims in all the causes of action are principally for the recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (Sec. 5(d), Rule 2, Rules of Court).

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Assume that aside from the above claims, C as lessor also wants to eject D from the apartment occupied by D as lessee. May the action be joined with the claims for money? The answer is NO. This is because the action for ejectment is a special civil action. This kind of action cannot be joined with ordinary actions. The joinder does not include special civil actions or those actions governed by special rules. Example: The causes of actions against D in favor of P are: P1 million based on a note; P1 million based on torts; and foreclosure of a real estate mortgage. May the causes of action be joined? Yes, but excluding foreclosure of real estate mortgage which is a special civil action and is governed by special rules. When there are two or more defendants, or one 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 under Sec. 6 of Rule 3. This provision requires that the right to relief arise out of the same transaction and that there exists a common question of law or fact. This requirement does not apply when there is only one plaintiff and one defendant. Example: Suppose C is the creditor of D for P300,000 and also of E for P200,000. Both debts are due and these debts have been contracted separately. May C join D and E as defendants in the same complaint? The answer is NO. Where a party sues two or more defendants, it is necessary for the cause of action to arise out of the same transaction and that there should be a common question of law or fact. The debt of D is a transaction different from the debt of E. Example: Suppose P is a passenger in a passenger vehicle operated by O and driven by D. because of the negligence of D, P sustained injuries when the vehicle fell into a ditch by the roadside. May P join O and D as defendants in the same complaint based on torts? YES. The liability of O and that of D arose out of the same transaction (same accident) which gives rise to a common question of law or fact. JURISDICTION 1. For a judgment to be valid, the judgment must have been rendered by a court having jurisdiction over the following: (1) subject matter; (2) parties, (3) issues, and (4) res. 2. Jurisdiction over the subject matter This jurisdiction is CONFERRED by law. Nothing else can confer jurisdiction except the law. (United BF Homeowners Association vs. BF Homes, Inc., 310 SCRA 304, 307). Jurisdiction is a matter of law and cannot be conferred by waiver, agreement by the parties or by acquiescence of the courts. It cannot be conferred by the rightness of the decision made or by the regularity of its exercise. WHY? Because it is conferred ONLY by law. Hence, whether or not the court has jurisdiction over the subject matter of an action instituted before it is dependent upon the laws on jurisdiction. Payment of filing/docket fees The rule as it stands now, requires the payment of the requisite fees when a complaint is filed. It is not simply the filing of the complaint that vests the court with jurisdiction over the action filed (even if by law, it has jurisdiction) but also by the payment of the prescribed docket fee. The Supreme Court in several cases, has held that a court acquires jurisdiction over the case ONLY upon the payment of the said fees (Manchester Development Corporation vs. Court of Appeals, G.R. No. 75919, May 7, 1987; Nestle Philippines,Inc., vs. FY Sons, Inc., G.R. No. 150789, May 5, 2006). This strict rule, as enunciated in Manchester was prompted by the peculiar circumstances of the case. Here, the Court noted a fraudulent scheme to avoid payment of the docket fee by the plaintiffs deliberate omission of the amount of damages sought in the prayer although

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alleged in the body of the complaint. This ruling was relaxed in Sun Insurance vs. Court of Appeals, 149 SCRA 562), when the Court made a liberal interpretation of the rule by allowing a late payment of the docket fee as long as it should not be made beyond the actions prescriptive period. It also declared in the same case that any unpaid fees should be considered a lien on the judgment. In this case, there is no evidence that the plaintiff tried to evade the payment of the docket fees. NOTE: If should be noted that the pronouncements of the Court on the matter of docket fees have always been influenced by the peculiar and legal and equitable circumstances surrounding each case. The rule is not as simple, as rigid or as uncomplicated as the Manchester case makes it appear. There are other circumstances equally important. While the timely payment of docket fees is jurisdictional, considerations of equity also come into the picture. (Yuchengco vs. Republic, 333 SCRA 368 [2000]). Objection to jurisdiction over the person of the defendant may be made initially either in a motion to dismiss or in the answer as an affirmative defense. However, objections to jurisdiction over the subject matter may, as a rule, be made at any stage of the proceedings, even for the first time on appeal as long as estoppel by laches does not set in. While jurisdiction over the subject matter is CONFERRED by law, it is DETERMINED by the allegations of the complaint. (Deltaventures Resources, Inc. vs. Cabato, 327 SCRA 521, 528 [2000]). This means that in order to find out if the court has jurisdiction over a complaint filed before it, the court must look into the allegations of the complaint and no other. The motions or answer of the defendant should not be considered. For this purpose, the court shall hypothetically assume the truth of the averments in the complaint. If the complaint alleges a claim of P500,000, the RTC has jurisdiction even if the defendant claims that his debt is only P100,000, an amount cognizable by the MeTC or MTC. The truth or the falsity of the claim does not matter for determining the jurisdiction of the court because such matters are to be adressed in the trial of the case. The MTC has exclusive original jurisdiction over claims not exceeding P300,000 in places outside Metro Manila and not exceeding P400,000 within Metro Manila. In determining the jurisdictional amount, do not include the following: (a) damages of whatever kind, (b) interests, (c) attorneys fees, (d) litigation expenses, and (e) costs. Note that damages will be considered in determining the jurisdictional amount when the main action is for damages. If damages is not the main action, damages should be excluded. Example: Mr. P filed an action for collection of a sum of money, thus: P350,000, the amount of the note; litigation costs of P6,000; attorneys fees of P50,000; damages of P5,000. Where shall the action be filed assuming the parties are residents of Manila? The case should be filed in the MeTC of Manila even if the total claim is P411,000. The amount to be considered for jurisdictional purposes is only P350,000. Follow the jurisdictional amounts above even if the case is an admiralty or a maritime case. In matters of probate, the same jurisdictional amounts apply. The basis is the gross value of the estate. Because of the amendments introduced to BP 129 by R.A. 7691, the MTC may now handle probate cases even if it is a special proceeding and its jurisdiction depends upon the gross value of the estate. May an MTC now take cognizance over matters involving ownership or possession of a land even if they are not ejectment cases? Under R.A. 7691, the answer is in the affirmative depending upon the assessed value of the land involved in the litigation. If the assessed value of the land or interest therein does not exceed P20,000 outside Metro Manila or does not exceed

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P50,000 within Metro Manila, the MTC has original jurisdiction over the case. Thus, an MTC can now have jurisdiction over cases involving ownership of land. Under the former law these cases were under the jurisdiction of the RTC. Jurisdiction over a case of accion publiciana, also now depends upon the assessed value of the property involved (Quinarogan vs. Court of Appeals, August 24, 2007; Atuel vs Valdez, 403 SCRA 517). The action is no longer an exclusive domain of the RTC. However, even if cognizable by the MTC because of its assessed value, the case will not be covered by a summary proceeding. Unlawful detainer and forcible entry cases are to be filed with the MTC which has exclusive original jurisdiction over said cases regardless of the amount of rentals or damages prayed for and regardless of the assessed value of the property. In such cases the assessed value is immaterial. This is an instance where the MTC can take cognizance of a special civil action. An MTC may also hear and decide petitions for writ of habeas corpus in the absence of all judges of the RTC in the city or province. This is the special jurisdiction of the MTC. This case is another example of a special proceeding which an the MTC could have jurisdiction over. The other is a probate proceeding depending upon the gross value of the estate. The MTC has also a delegated jurisdiction. The Supreme Court may assign an MTC to hear and determine cadastral or land registration cases covering lots where there is no controversy or opposition, or in case of contested lots where the value of which does not exceed P100,000. All other cases not within the jurisdiction of the MTC shall be initially filed with the RTC. The RTC now also has exclusive original jurisdiction over cases which used to be with the jurisdiction of the Securities and Exchange Commission. It also has jurisdiction over cases not capable of pecuniary estimation like rescission of a contract, reformation of an instrument or annulment of a contract, or injunction as a main action. It also has jurisdiction over an action for specific performance which is also an action incapable of pecuniary estimation. How about an action for specific performance OR damages? To know the jurisdiction, look at the amount of damages. This is an instance where the damages shall be considered. But an action for specific performance alone or specific performance AND damages is an action incapable of pecuniary estimation. File the action with the RTC. 3. Jurisdiction over the plaintiff and defendant Jurisdiction over the plaintiff is acquired when said plaintiff files the complaint. By seeking affirmative relief through the complaint, there is an implied submission of the plaintiffs person to the jurisdiction of the court. Jurisdiction over the defendant is acquired by (a) a valid service of summons or (b) by his voluntary appearance or submission to the jurisdiction of the court. The defendants voluntary appearance in the action shall be equivalent to service of summons. Lack of jurisdiction over ones person may be invoked in a motion to dismiss alleging such ground. If no motion to dismiss is filed, it may be raised as an affirmative defense in the answer. Under the previous rule, the objection to jurisdiction must be done by making a special appearance in a motion to dismiss invoking the lack of jurisdiction over the person of the defendant as the ONLY ground. Adding any other ground in addition to lack of jurisdiction over the defendant was construed as a voluntary appearance or submission to the jurisdiction of the court. The rule as it is now, is different. Now, 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. (Sec. 20, Rule 14).

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Illustration under the old rule: Defendant files a motion to dismiss. Ground: Lack of jurisdiction over his person because of invalid service of summons. He adds another ground: prescription. Under the old rule, defendant had voluntarily submitted to the jurisdiction of the court by adding prescription to the motion. Under the new rule, the inclusion of prescription is not equivalent to voluntary appearance or submission to the jurisdiction of the court. NOTE: Filing a motion for extension of time to file an answer has been considered as a voluntary submission to the jurisdiction of the court. 4. Jurisdiction over the issues This is the power of the court to try and decide issues raised by the pleadings. In order to determine whether or not the court has jurisdiction over the issues of the case, one must look into the pleadings. This jurisdiction means that the court must only pass upon issues raised by the parties. If the issue raised by the parties is possession, the court has no jurisdiction to pass upon the issue of ownership because it is not an issue in the case. In Buce vs. Court of Appeals, 332 SCRA 151 [2000], it was held that it is error to order the lessee to vacate the premises where lessor did not include in his pleadings a claim for restoration of possession. Sometimes however, issues may arise in the case even if the same are not raised in the pleadings. This happens when the issue are tried with the express or implied consent of the parties. When this happens, the issues shall be treated in all respects as if they had been raised in the pleadings. (Sec. 5, Rule 10). If for instance, the complaint does not allege that a demand to pay has been made upon the defendant before the action is filed, the defendant may file a motion to dismiss the complaint for failure to state a cause of action. He may also invoke the said objection as an affirmative defense in his answer, if he chooses not to file a motion to dismiss. If however, he interposes no objection to the defect in the complaint and during the trial he likewise does not object to evidence that demand was made before the action is filed, the matter of demand shall be considered as if it has been alleged in the pleadings. If a party presents evidence on a matter not at issue in the pleadings, the other may object to such evidence. The court may sustain the objection and exclude the evidence. However, the same rule likewise allows the court, in the interest of substantial justice, to direct an amendment to the pleadings so the pleadings may conform to the evidence. This is true despite the objection to the evidence. The evidence will then be admitted after the amendments are made. (Mercader vs. DBP (Cebu Brance), 332 SCRA 82, 97 [2000]). 5. Summary procedure Not all pleadings are allowed under the Rules of Summary Procedure. For example: A party cannot assert a permissive counterclaim although he may assert a compulsory counterclaim. A reply, a third-party complaint or a complaint in intervention cannot also be filed. The only pleadings allowed are the complaint, compulsory counterclaim and cross-claim pleaded in the answer, and the answers thereto. (Sec. 3(A) II). The answer to the complaint shall be filed and served within ten (10) days from service of summons. May the defendant file a motion for bill of particulars or a motion to dismiss? No. These are not allowed. Exception: A motion to dismiss may be filed if premised on (a) lack of jurisdiction or (b) the failure to comply with the barangay concilliation proceedings). If the defendant does not file his answer, may the plaintiff file a motion to declare the defendant in default? The answer is likewise, no! The remedy of the plaintiff is to move for the rendition of judgment. Even without the requisite motion, the court may motu propio render judgment. (Sec. 6, II).

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NOTE: As of November 25, 2002, the jurisdictional amount subject to summary procedure is as follows: P100,000 or less (outside Metro Manila); P200,000 or less (within Metro Manila). 6. An error of jurisdiction is correctible by certiorari while an error of judgment is correctible by appeal. When the error of the court consists in the appreciation of the facts or the evidences adduced, this is an error of judgment. When the court acts without jurisdiction because it actually has no jurisdiction, or even it initially it has jurisdiction but gravely abuses said discretion or acts in excess of jurisdiction which tantamount to lack of jurisdiction, the special civil action of certiorari is the appropriate remedy. Errors of procedure that do not affect the courts jurisdiction are not reviewable by certiorari. It is not also available for the re-examination of conflicting evidences or the re-evaluation of the credibility of the witnesses. Caveat: It is settled that certiorari is not proper when another remedy is available. So if appeal is available, forget about certiorari. This is the general rule. However, if appeal would not be speedy or an adequate remedy, then certiorari may be availed of. As a general rule also, a motion for reconsideration should precede a recourse to certiorari in order to give the trial court a chance to correct its errors. This requirement is not absolute and may be dispensed with in any or a combination of the following situations: (a) when the error of the court is patently void; (b) where the relief is extremely urgent; (c) where the issue is one purely of law; (d) where the question of jurisdiction has been squarely raised, argued before, submitted to, and met and decided by respondent court; (e) where the questioned order is a patent nullity; (f) where there is a deprivation of the petitioners right to due process. REMINDER: Certiorari under Rule 45 should not be confused with certiorari under Rule 65. Among others, the most important distinction is the issue raised. In Rule 45, the issue is a pure question of law; in Rule 65, the issue is whether or not the tribunal, board or officer acted with grave abuse of discretion amounting to lack of jurisdiction. Rule 45 is certiorari as a mode of appeal. Certiorari under Rule 65 is not a mode of appeal but a special civil action.

VENUE 1. Venue is procedural and not substantive. In civil cases, venue is not a matter of jurisdiction. (Heirs of Pedro Lopez vs. de Castro, 324 SCRA 591 [2000]). Venue becomes jurisdictional only in a criminal case. In the latter, where the information is filled in a place where the offense was not committed, the information may be quashed for lack of jurisdiction. This is not so in a civil case where improper venue is not equivalent to lack of jurisdiction. Because venue in a civil case is merely procedural, the parties can waive it. The trial court cannot motu propio dismiss a case on the ground of improper venue. The court may only dismiss an action motu propio in case of lack of jurisdiction over the subject matter, litis pendencia, res judicata and prescription, but not for improper venue. (Rudolf Lietz Holdings, Inc. vs. Registry of Deeds of Paraaque City, 344 SCRA 680 [2000]). Unless and until the defendant objects to the venue in a motion to dismiss, the venue cannot be truly said to be improperly laid, because the venue although technically wrong may be acceptable to the parties for whose convenience the rules and venue have been devised. The trial court cannot preempt the defendants prerogative to object to the improper laying of the venue by motu propio dismissing the case. (Dacuycoy vs. Intermediate Appellate Court, 195 SCRA

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644). Query: The defendant filed a motion to dismiss based on lack of jurisdiction over the subject matter. The court however, dismissed the action based on improper venue. Correct? No! The court cannot motu propio dismiss an action based on improper venue. 2. The parties may stipulate on the venue as long as the agreement is (a) in writing, (b) made before the filing of the action, and (3) exclusive as to the venue. A stipulation that any suit arising from this contract shall be filed exclusively in Quezon City precludes the filing of the case in any other place. A stipulation that the parties agree to sue and be used in the courts of Manila has been held not to be exclusive. (Polytrade Corporation vs. Blanco, 30 SCRA 187). Where the stipulation is not exclusive, then the effect is to add Manila as a possible venue aside from the residence of the plaintiff and the residence of the defendant. 3. It has been earlier mentioned that to determine the venue, determine first if the action is personal or real. If it is personal venue is transitory, hence, the venue is the residence of the plaintiff. (Sec. 3, Rule 4). If the action is real, the venue is local, hence, the venue is the place where the real property is situated. (Sec. 1, Rule 4). However, when the defendant is a non-resident and is not found in the Philippines, the venue is the residence of the plaintiff or where the property involved is situated. (Sec. 3, Rule 4). 4. REMINDER: If the question shows that venue is improper, do not file a motion to dismiss anchored on lack of jurisdiction. Venue has nothing to do with jurisdiction in a civil case. Hence, if a case for unlawful detainer is filed in MTC Laguna when it should have been filed in MTC Cavite, the action filed in Laguna may be dismissed by the court on the ground of improper venue but not on the ground of lack of jurisdiction because every MTC has jurisdiction over cases of unlawful detainer. Do not inject into your answer the concept of territorial jurisdiction. It is irrelevant in a civil cases. Territorial jurisdiction applies only in criminal cases where venue is also jurisdictional. This is not so in a civil case where the concept of venue is distinct from the concept of jurisdiction.

PARTIES 1. A suit must be defended and prosecuted in the name of the real party in interest. (Sec. 2, Rule 3). For instance, under Art. 1768 of the Civil Code of the Philippines, a partnership has a juridical personality separate and distinct from that of each of the partners. Hence, if the contract was entered into by the partnership in its name, it is the partnership, not its officers or agents which should be impleaded in any litigation involving property registered in its name. A violation of this rule will result in dismissal of the complaint for failure to state a cause of action. (Aguila vs. Court of Appeals, 319 SCRA 345). The mere failure to include the name of a party in the title of the complaint is not fatal because the Rules of Court require the courts to pierce the form and go into the substance and not be misled by a false or wrong name in the pleadings. The averments are controlling and not the title. Hence, if the body indicates the defendant as a party to the action, his omission in the title is not fatal (Viason Enterprises vs. Court of Appeals, 310 SCRA 26). In an action for forcible entry, the possessor/lessee is the real party in interest as plaintiff and not the owner/lessor. The issue in an action for forcible entry is mere possession. The defendant therefore, cannot contend that it should be the owner who should file the suit. However, in an action for damages to the property leased, the owner/lessor is the real party in interest

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as plaintiff. Query: Can a foreign corporation sue in the Philippines? It can, depending on the facts. If it is a foreign corporation engaged in business in the Philippines, it needs a license to engage in said business. If it has a license to engage in business in the Philippines, it can sue and it can be sued. If it is engaged in business in the Philippines, and does not have a license to engage in business, it can be sued but it cannot sue (Sec. 133, Corporation Code of the Philippines). If it is not engaged in business n the Philippines, it does not need a license for that purpose simply because it is not engaged in business. But it can sue in the Philippines on an isolated transaction or for the purpose of protecting its goodwill or trade name. Query: Mr. X, a pedestrian was injured in the collision of two vehicles. He suffered injuries but does not know with certainty which vehicle caused the mishap. What should Mr. X do if he wants to sue? He should sue the vehicle drivers/owners in the alternative. (Sec. 16, Rule 3) Query: P delivered some goods to D pursuant to a contract. The goods were delivered to E, the designated agent of D. D did not pay P. D contends that he has not received the goods. E claims otherwise and insists that D had received the goods. Should P sue D or should he sue E? P should sue both but in the alternative. Query: B bought a car from S on installment. A chattel mortgage was executed on the car in favor of S to secure the obligation. Before the payment was completed, B sold the car to D. It was agreed that D would be responsible for the monthly installments. May P sue D alone in the foreclosure suit or replevin suit? He cannot. B must be made defendant. B is an indispensable party. The foreclosure or replevin is premised in the default of B, the debtor. P would have no right to foreclose the mortgage or repossess the car without establishing the default of B. Query: In the immediately preceding problem, if only D is impleaded as a defendant, what may D do? D may move for the issuance of an order requiring P to amend his complaint and implead B. If the court issues an order to implead B and P fails or refuses to comply with the order of the court, then D should move for the dismissal of the case under Rule 17, Sec. 3. The ground would be failure to comply with the order of the court. Note that failure to comply with the order may be a ground for a motu propio dismissal but the mere failure to implead a party or non-joinder (as well as misjoinder) is not a ground for dismissal. (Sec. 11, Rule 3) Requisites of a class suit: (a)The subject matter is one of common or general interest to many persons, and (b) the persons are so numerous that it is impracticable to join all of them as parties. When these requisites are present, the suit may be brought by the class as plaintiffs or against the class as defendants. A class suit will not lie when the numerous occupants of a parcel of land are sued for ejectment from the land because their interest is not common to all. The interest of each defendant is only with respect to the portion he claims and occupies (Berses vs. Villanueva, 25 Phil. 473; Sulo ng Bayan, Inc. vs. Araneta, 72 SCRA 347). Death of a party: When a party dies, the attorney has no further authority to act for the deceased in the absence of a retainer from the heirs or legal representative of the deceased. (Lawas vs. Court of Appeals, 146 SCRA 173). Under Sec. 16 of Rule 3, the only remaining duty of the attorney is to notify the court of the death of his client. Failure to make the notification may subject the attorney to disciplinary action if the action is one that survives (like money claims arising from contract or torts). He is obliged to give to the court the names and addresses of the legal representatives to the court of names and addresses of the legal representatives of the deceased by his legal representative or by his heir. This order of substitution is necessary

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for the court to acquire jurisdiction over the substitute. (Ferreria vs. Vda. De Gonzales, 104 Phil. 143). If the action does not survive (like the purely personal action of support, annulment of marriage and legal separation), the court shall simply dismiss the case. When the action is for the recovery of money arising form contract and the defendant dies before entry of final judgment, the court shall not dismiss the suit. It shall continue and his legal representative or legal heir shall substitute the deceased. If the plaintiff obtains a favorable judgment, said judgment shall be enforced as a money claim against the estate of the deceased. (Sec. 20, Rule 3). PLEADINGS

1.

COUNTERCLAIM A compulsory claim if not set up is barred. A permissive counterclaim even if not set up is not barred. Because a permissive counterclaim does not arise out of the same transaction as that of the complaint, if can be brought as a separate action in itself. A docket fee must be paid for the permissive counterclaim. It must be also answered by the adverse party to prevent default. If also needs a certificate against forum shopping. A compulsory counterclaim requires no payment of the docket fee and need not be answered and does not need a certificate against forum shopping. SIGNATURE AND ADDRESS Every pleading must be signed by the party or counsel representing him stating the address which should not be a post office box (Sec. 3, Rule 7). The signature of counsel signifies that (a) he has read the pleading, (b) that to the best of his knowledge, information and belief, there are good grounds to support it, and (c) that is not interposed for delay.

2.

3. REELIEF It is a rule of pleading that the prayer for relief though part of the complaint, is not part of the cause of action and the plaintiff is entitled to as much relief as the facts may warrant. It is the material allegations of fact of the complaint, not the legal conclusions in the prayer that determines the relief to which the plaintiff is entitled. The court shall grant relief on the basis of the allegations in the pleading and the proof even no such relief is prayed for. (UBS Marketing Corporation vs. Court of Appeals, 332 SCRA 534, [2000]); Bangko Filipino Savings and Mortgage Bank vs. Court of Appeals, 332 SCRA 241, [2000]). Example: The prayer is for P3 million and for such other relief as may be deemed just and equitable. The amount proved P5 million. May the court award P5 million? The court may award P5 million where no objection is interposed to the evidence of P5 million. It is as if the issue of P5 million was raised in the pleadings. Exception: A judgment rendered against a party in default shall not exceed the amount or relief different in kind from that the prayed for (Rule 9, Section 3(d)). A party is not required to specify the provisions of law relied upon. If he does so specify it but is mistaken, this will not preclude him from obtaining relief in the case provided that the facts stated and proved justify such relief. 4. CERTIFICATION AGAINST FORUM SHOPPING A counsel cannot certify to the certificate against forum shopping. As a rule, it should be the plaintiff or the principal party. If the plaintiff is a corporation, it should be signed by any of its authorized directors or officers (Digital Microwave Corporation vs. Court of Appeals, 328 SCRA 286 [2000]). Forum shopping consists of filing multiple suits involving the same parties for the same cause of action, either simultaneously or successively for the purpose of obtaining a favorable judgment. But there is no forum shopping where the cause of action before

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the Ombudsman is for violation of the Anti-Graft and Corrupt Practices Act while the cause of action before the trial court is for collection of money plus damages (Leyson vs. Office of the Ombudsman, 331 SCRA 227, [2000]). Failure to comply with the required certification against forum shopping is a cause for dismissal of the action but only upon motion and hearing. The defect is NOT curable by amendment (Barroso vs. Ampig, Jr., 328 SCRA 530, 536 [2000]. This strict requirement of certification against non-forum shopping does not apply to election cases. (Barroso vs. Ampig, Jr., 328 SCRA 530). 5. REPLY A reply is not mandatory because even if there is no reply, the allegations of new matters in the answer of the defendant are deemed controverted, meaning, DENIED (Sec. 10, Rule 6). A reply however, is advisable when the defense is founded upon an instrument (actionable document) as described under Sec. 7and sec. 8 of Rule 8. In such a case the reply must specifically deny the instrument under oath otherwise the genuiness and due execution of the instrument will be deemed admitted. Note that a denial of an actionable document must always be under oath to avoid an implied admission of its genuiness and due execution (sec. 8, Rule 80. NOTE: Also, allegations of usury in a complaint to recover usurious interest must be denied under oath. (Sec. 11, Rule 8). SUMMONS

1. Service of summons is the means of acquiring jurisdiction over the

person of the defendant in an action in personam and a means by which the due process requirement of notice of the constitution is complied with. The Rules require not just a mere service of summons. The modes of service must be strictly followed in order that the court may acquire jurisdiction over the person of the defendant. (Umadlap vs. Sabio, Jr., 339 SCRA 243 [2000]; Gan Hock vs. Court of Appeals, 197 SCRA 223). With respect to foreign corporations, when a foreign corporation has designated a person to receive summons in its behalf pursuant to the Corporation Code, that designation is exclusive and service of summons on any other person is inefficacious (H.B. Zachry Company International vs. Court of Appeals, 232 SCRA 329). As to domestic corporations, the rule is: Summons must be served ONLY upon persons enumerated in Sec. 11 of Rule 14 (president, general manager, managing partner, corporate secretary, treasurer, and inhouse counsel). The enumeration is exclusive. Service upon any other person will not enable the court to acquire jurisdiction over person of the defendant. (E.B. Villarosa vs. Benito, 312 SCRA 7; Mason vs. C.A., G.R. No. 144662, October 13, 2003). Previous rulings which allowed service through a clerk (Golden Country Farms vs. Sunvar Development Corporation, 214 SCRA 295; G & G Trading vs. Court of Appeals, 158 SCRA 466), a bookkeeper (Pabon vs. NLRC, 296 SCRA 7), the secretary of the President (Viason Enterprises vs. Court of Appeals, 310 SCRA 26), or the cashier (Talsan vs. Baliwag Transit, Inc., 310 SCRA 156), NO LONGER APPLY because they were decided based on the old rule which allowed service upon an agent of a domestic private juridical entity. The persons referred to in old cases were considered agents, the term being very broad in its meaning. The present rule in Section 11 of Rule 14 no longer includes an agent as one upon whom service of summons may be made. 2. SERVICE IN PERSON ON THE DEFENDANT AND SUBSTITUTED SERVICE Service in person on the defendant is the preferred mode of service. (Sec. 6, Rule 14). If the defendant refuses the service, the server should not resort to substituted service. He must TENDER it to him. Tendering is a part of service

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in person(formerly called personal service). If the defendant cannot be served in person within a reasonable time, only then may substituted service under Sec. 7 of Rule 14 be availed of. (See rule on substituted service). The sheriff or server must first exert all efforts to serve the defendant in person. If this effort fails, then substituted service can be made. This effort must be stated in the proof of service. This is required because substituted service is in derogation of the usual mode of service. (Laus vs. Court of Appeals, 219 SCRA 688; Umandap vs. Sabio, Jr., 339 SCRa 243; Samartino vs. Raon, 383 SCRA 664, 670, [2002]). It is only when the defendant cannot be served personally that substituted service may be made but the pertinent facts attendant to the service of summons must be stated if the proof of service, otherwise substituted service in lieu or personal service cannot be upheld (Hamilton vs. Levy, 334 SCRA 821 [2000]). Failure to faithfully comply with the requirements of substituted service renders the service ineffective. (Miranda vs. Court of Appeals, 326 SCRA 278). 3. EXTRATERRITORIAL SERVICE OF SUMMONS in Sec. 15 of Rule 14, applies when the defendant is a non-resident who is not found in the Philippines AND that the action against him is either in rem or quasi in rem. If the action is in personam this mode of service will not apply. There is no extraterritorial service of summons in an action in personam. (Kawasaki Port Service Corporation vs. Amores, 199 SCRA 230; Banco Do Brasil vs. Court of Appeals, 333 SCRA 545 [2000]). When the action is in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide a case. However, when the defendant is a nonresident, personal service of summons in the state is essential to the acquisition of jurisdiction over him. (Banco do Brasil vs. Court of Appeals, 333 SCRA 545 [2000]). Example: Mexicano, a tourist in the Philippines, by the employment of force and intimidation, contracted a marriage with Filipina, a hotel receptionist. When Mexicano left for Mexico, Filipina filed an action for annulment of marriage with damages of P3 million. With leave of court, extraterritorial service of summons by publication was effected. Mexicano did not appear. The court decreed the annulment of the marriage and awarded damages. Was the judgment correct assuming all the requisites for the proceedings were complied with? The judgment was correct insofar as the decree of annulment is concerned. The action is an action in rem. In this kind of action, jurisdiction over the res is sufficient. Jurisdiction over the person of the defendant is not essential in this case, so whether or not there was jurisdiction over Mexicano does not affect the authority of the court to decide on the issue of annulment as long as extra-territorail service of summons was made. However, the judgment of the court awarding damages to Filipina is void. By its nature, a claim for damages is in personam. The court is without jurisdiction to award damages unless it has first acquired jurisdiction over the person of Mexicano. The only ways by which this type of jurisdiction may be acquired in the case at bar is either through service in person upon Mexicano in the Philippines OR by his voluntary appearance in the action. Neither of these prevailed in the case under consideration in the action.. (Very important: See modes of service in particular situations like minors, prisoners, etc.). DEFAULT 1. Default occurs when the defending party fails to file his answer within the reglementary period. It does not occur from the failure of the defendant to attend the trial. Take note that the defending party cannot be declared in default without the requisite motion. The court cannot motu propio declare the defendant in default. (Sec. 3, Rule 9). A declaration of default is not an admission of the truth or the validity of the plaintiffs claims. (Monarch Insurance vs. Court of Appeals, 333 SCRA 7 [2000]); Vlason Enterprises

30

Corporation vs. Court of Appeals, 310 SCRA 26). Under the rules, when a party is declared in default, the court may either proceed to render judgment or require the plaintiff to present his evidence ex parte. A party in default is entitled to notice of subsequent proceedings but he is not entitled to take part in the trial. Remember that the judgment to be rendered against the party in default shall not exceed the amount or be different in kind than that prayed for. Unliquidated damages cannot be awarded. Remember too that there is no default in an action for annulment or declaration of nullity of marriage or for legal separation even if the defendant fails to file an answer. 2. A party declared in default may file a motion under oath to set aside the order of default upon proper showing of FAMEN (fraud, accident, mistake or excusable negligence). He must also show that he has meritorious defense and which must be accompanied by an affidavit of merit. (Sec. 3(b), Rule 9). The current judicial trend is to avoid defaults and thus, courts are enjoined to be liberal in setting aside orders of default. (Ampeloquio vs. Court of Appeals, 333 SCRA 465.). DEMURRER TO EVIDENCE

1. This is a form of a motion to dismiss filed after the defendant has

completed the presentation of his evidence, the defendant may move to dismiss the complaint on the ground that the plaintiff has shown no right to relief upon the facts and the law (insufficiency of evidence). If the motion is denied, the defendant shall then present his evidence. This right to present evidence is not waived. If it is granted, the case shall be dismissed. However, if on appeal the order granting the motion is reversed, the defendant loses his right to present evidence. (Rule 33). It is not correct however, 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 of remanding the case, render judgment on the basis of the evidence submitted by the plaintiff. (Radiowealth Finance Corporation vs. Del Rosario, 335 SCRA 288).

An order denying a demurrer to the evidence is interlocutory and is therefore, not appealable. It can however, be the subject of a petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority (Katigbak vs. Sandiganbayan, 405 SCRA 558). 2. A party who files a demurrer to evidence in an election case cannot insist on the right to present evidence. The provision of the Rules of Court governing demurrer to evidence does not apply to an election case. (Gementiza vs. COMELEC, G.R. No. 140884, March 6, 2001). JUDGMENTS 1. When a judgment becomes final and executory, it becomes immutable and unalterable. The court loses jurisdiction over the judgment to amend (except for clerical errors) or alter the same but it retains jurisdiction to EXECUTE it during its lifetime. (Equatorial Realty Development, Inc. vs. Mayfair Theater, 332 SCRA 139 [2000]; NHA vs. Heirs of Isidro Guivelondo, 404 SCRA 389). 2. When the trial court orders payment of attorneys fees not decreed in the judgment, such variance with the terms of the judgment, renders the order void. (Lizardo, Sr. vs. Montana, 332 SCRA 163 [2000]). 3. A judgment upon a compromise has all the force and effect of any other judgment, hence, conclusive upon the parties and their privies. (Golden Donuts vs. NLRC, 322 SCRA 294 [2000[). A judicial compromise, once

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stamped with judicial approval becomes more than a mere contract binding upon them and having the sanction of the court and entered as its determination of the controversy. It has the force and effect of any judgment (Yulienco vs. CA, G.R. No. 117327, August 8, 2002). It has the effects of res judicata, is immediately executory, and not appealable (Salvador vs. Ortoll, G.R. No. 140942, October 18, 2000). The remedy is to file a motion to set aside he compromise on any ground vitiating the consent like fraud, duress or mistake (Salvadr vs. Ortoll, October 18, 2000). While a judicial compromise has the effect of res judicata, it cannot be executed except in compliance with a judicial compromise (Art. 2037, Civil Code of the Philippines). 4. LAW OF THE CASE DOCTRINE This means that whatever has been irrevocably established as the controlling rule of decision between the same parties in the same case continues to be the law of the case, whether correct or not, so long as the facts of which such decision was predicated continues to be the facts of the case before the court. (Ducat vs. Court of Appeals, 322 SCRA 69 [2000]). 5. The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment after the same has become final and executory. Under the 1997 Rules of Civil Procedure (Sec. 2, Rule 36, the date of the entry of judgment is the date when the judgment becomes final and executory regardless of the date when the physical act of entry was done. REMEDIES AGAINST A JUDGMENT Remedies Before A Judgment Becomes Final And Executory (A) Motion For Reconsideration (Rule 37) This is filed within the period for appeal based on any of the following grounds: (a) damages are excessive; evidence is insufficient; or that (c) the decision or order is contrary to law (Sec. 1, Rule 37). When this motion is filed, the period for appeal is interrupted (Rule 40, Sec. 2; Rule 41, Sec. 3). The motion shall be in writing and notice thereof must be given to the adverse party. It must also contain a notice of hearing. In other words, it must comply with the rules on motion. If it does not, it will be considered only a pro forma motion and will not have the effect of suspending or interrupting the period to appeal. The suspension of the period for appeal presupposes that the motion is not pro forma. The motion shall point out specifically the findings or conclusion of the judgment not supported by the evidence or which are contrary to law. Mere general assertions that a ground for reconsideration exists will not suffice, otherwise the motion shall be deemed a mere pro forma motion. If the motion is granted, the court may amend the judgment or final order accordingly. If the motion is denied, do not appeal from the order denying the motion. An order denying a motion for reconsideration is not appealable (Sec. 9, Rule 37; Sec.1, Rule 41). The remedies are either of the following: (a) appeal from the judgment or the final order pursuant to the provisions of Sec. 9 of Rule 37; or (b) file the appropriate special civil action under Rule 65 like certiorari (Sec. 1, Rule 41) to assail the order denying the motion. A second motion for reconsideration is not allowed under Rule 37, Sec. 5. This prohibition applies to a motion for reconsideration of a judgment or final order and does not include a motion for reconsideration of an interlocutory order where the court may allow even more than one motion for reconsideration.

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A motion for reconsideration under Rule 37 cannot be used as a vehicle to introduce new evidence. If you want to introduce new evidence, the remedy is to file a motion for new trial (Cansino vs Court of Appeals, G.R. No. 125799, August 21, 2003). (B) Motion For New Trial (Rule 37) This is filed within the period to appeal based on fraud, accident, mistake or excusable negligence (FAMEN). Here the movant alleges that he was prevented from fully participating in the proceedings or he was prevented from taking an appeal because of any of the grounds mentioned. If he alleges fraud, he must only allege extrinsic fraud, not intrinsic fraud. This fraud must be one employed to prevent the movant from ventilating his side in the proceedings. The use of forged document by a party is not the fraud contemplated as extrinsic and cannot therefore, be a ground for a motion for new trial. Another ground is newly discovered evidence which could not have been discovered and produced at the trial. When the ground is FAMEN, the motion must be supported by an affidavit of merit. When the ground relied upon is newly discovered evidence, no affidavit of merit is required. Instead, it shall be supported by affidavits of witnesses or by duly authenticated documents. If the motion for new trial is granted, the original judgment shall be vacated and the action shall stand for trial de novo. The recorded evidence in the former trials shall be used at the new trial without need for retaking the same as long as that evidence is material and competent to establish the issues. If the motion is denied, do not appeal the order denying the motion for new trial. This is because the order is not appealable (Sec. 9, Rule 37; Sec. 1, Rule 41). The remedy is either to appeal from the judgment or final order (Sec. 9, Rule 37) or to file the appropriate special civil action like certiorari under Rule 65 (Sec. 1, Rule21) to assail the order denying the motion. THE 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 if he so desires, counted from receipt of the notice or order denying the motion. Hence, if he files a motion for reconsideration on the 10th day from notice of the judgment and the motion is denied, he does not have only 5 days (the remainder of the 15 day period to appeal) but a fresh period of 15 days to file his appeal. (C) Appeal From Judgment Of MTC (Rule 40) An appeal from a judgment or final order of an MTC shall be taken to the RTC exercising jurisdiction over the area. The appeal is taken by filing a notice of appeal with the court that rendered the judgment, which is the MTC. Do not file the notice of appeal with the RTC. In cases involving a special proceeding or in case of multiple appeals, a record on appeal shall be required. Copies of the notice of appeal and the record on appeal shall be served on the adverse party. Within the period for appeal, the appellant shall pay to the clerk of the MTC the full amount of the appellate docket fee and other lawful fees. Periods for appeal: 15 days in case of by notice of appeal; 30 days in case record on appeal is required. Period is counted from the notice of judgment. A partys notice of appeal is deemed perfected upon the filing of the notice of appeal in due time. In appeals by notice of appeal, the appeal is

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deemed perfected upon the approval of the record on appeal filed in due time. In appeals by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeal in due time and the expiration of the time to appeal of the other parties. In appeals by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and expiration of the time to appeal of the other parties. If the trial loses jurisdiction over the case in accordance with the preceding paragraphs, does this mean that the trial court can no longer issue orders related to the case? The court can as long as the orders are done PRIOR to the transmittal of the original records or record on appeal. Thus, under the doctrine of residual jurisdiction, The trial court may order an execution of the judgment pending appeal, approve compromises, permit appeals of indigent litigants or allow a withdrawal of an appeal (Sec. 9, Rule 41 as applied to Rule 40 per Sec. 4, Rule 40). If the MTC dismisses a case pursuant to a motion to dismiss for lack of jurisdiction, the dismissal is made without a trial on the merits. The plaintiff may appeal from the order of dismissal because an order dismissing the action is final in character. If on appeal, the RTC finds that the MTC correctly dismissed the complaint because it is the RTC which has jurisdiction, the RTC shall affirm the dismissal but is mandated to TRY the case on the merits AS IF it was originally filed with it (Sec. 8, Rule 40). The same applies where the case was tried on the merits in the lower court without jurisdiction over the subject matter. This means that the court shall also assume jurisdiction over the case as if it was originally filed with it. The RTC may however, allow amendment of the pleadings and admit additional evidence despite the previous trial in the court below. The RTC will require the appellant to file a memorandum. Failure to file a memorandum is a ground for dismissal of the appeal (Sec. 7, Rule 40). (D) Appeal From The RTC To The CA (Rule 41) An appeal from the RTC may be by (a) ordinary appeal under Rule 41; (b) petition for review under Rule 42; or (c) appeal by certiorari/petition for review on certiorari under Rule 45. The appeal called ordinary appeal, is one made from a judgment of the RTC in the exercise of its original jurisdiction. This type of appeal is made by filing a notice of appeal with the RTC within fifteen (15) days from notice of the judgment. If record on appeal is required, appeal period is 30 days. (E) Petition For Review From RTC To THE CA (Rule 42) This mode of appeal applies when the decision of the RTC appealed from is one decided by it in the exercise of its appellate jurisdiction. This means that the case originated from the MTC and appealed to the RTC (Posadas-Moya vs. Greenfield Development Corp., G.R. No. 141115, June 10, 2003). In filing a petition for review, a notice of appeal is not required. The appeal is done by filing a verified petition for review directly with the Court of Appeals. (F) Petition By Certiorari/Petition For Review On Certiorari From The RTC To The Supreme Court (Rule 45) When the appeal raises pure questions of law, the appeal should be addressed to the Supreme Court. A question of law arises when the doubt or difference arises as to what the law is on a certain set of facts. A case, which does not raise purely questions of law, does not merit attention of the Supreme Court. (Cebu Womens Club vs. De le Victoria,

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327 SCRA 533). Questions of fact are not proper subjects of this kind of appeal (Larena vs. Mapili, G.R. No. 146341, August 7, 2003). A question of law exists when there is no doubt or controversy on what the law is on a certain state of facts. There is a question of fact when the doubt or difference arises from the truth or the falsity of the allegations of facts. (Republic vs. Sandiganbayan, G.R. No. 102508, January 30, 2002). In this mode of appeal, the petitioner does not have to pass the Court of Appeals. The Supreme Court reviews only errors of law, not errors of fact. This is the general rule unless the Court finds conflicts in the findings of facts of the Court of Appeals and the trial court. In this case the Supreme Court may review the findings of facts of the courts below. NOTE: The right to appeal is not a natural right or a part of due process. It is merely a procedural remedy of statutory origin. There is no right to appeal unless there is a law which authorizes it (Neplum vs. Orbeso, 384 SCRA 468). Appellate courts may not generally entertain questions of law or fact not raised in the lower courts for that would constitute a change of theory not permissible on appeal (Capacite vs. Baroro, G.R. No. 154184, July 8, 2003). Appeals from quasi-judicial bodies Appeals from judgments and final orders of quasi judicial bodies/agencies are now required to be brought to the Court of Appeals under the requirements and conditions set forth in Rule 43. This rule was adopted precisely to provide a uniform rule of appellate procedure from quasi-judicial bodies (Carpol vs. Sulu Resource Development Corp., G.R. No. 148267, August 8, 2002). Appeals From the NLRC Judgments of the NLRC are to be brought first to the CA by way of petition for certiorari under Rule 65 not under Rule 43 of the Rule of Court. (St. Martin Funeral Homes vs. NLRC, G.R. No. 130866, September 16, 1998). Decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by way of petition for review on certiorari under Rule 45 raising pure questions of law. Certiorari under Rule 65 is not the remedy (People vs. Espinosa, G.R. Nos. 153714-20, August 15, 2003). Remedies After The Judgment Becomes Final And Executory

(A) Petition For Relief (Rule 38) This remedy is availed of only
when the petitioner can no longer appeal because the period for appeal has already lapsed. This is a verified petition filed within sixty (60) days after the petitioner learns of the judgment AND not more than six (6) months after such judgment or final order was entered. These periods must concur. The petitioner should invoke any of FAMEN. Of course, an affidavit of merit is indispensable here. It serves as the jurisdictional basis for the court to entertain the petition. Remember that the petition for relief is filed after the period for appeal has lapsed, hence, the judgment is at that point, already final and executory. The mere filing of a petition for relief does not bar the execution of the judgment. It does not stay the execution of the judgment. This is because the judgment is already final and executory and can be subject to execution by mere motion. To stay execution, a writ of preliminary injunction should be availed of under Sec. 5 of Rule 38 or a temporary restraining order under Rule 58.

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A petition for relief will not be entertained where the failure of the petitioner to appeal is due to his fault or negligence. (B) Annulment of Judgment (Rule 47) This remedy is available only where the ordinary remedies of new trial, appeal, petition for relief or appropriate remedies are no longer available through no fault of the petitioner (Sec. 1, Rule 47). Hence, if such remedies were not availed of due to the petitioners fault, the petition will be dismissed. Grounds: (a) extrinsic fraud; and (b) lack of jurisdiction. If based on extrinsic fraud, the action must be filed within four (4) years from its discovery. If based on lack of jurisdiction, it must be brought before the action is barred by laches or estoppel (Sec. 2, Sec. 4. Rule 47). (C) Certiorari (Rule 65) Called a supervisory or superintending wilt, this remedy is availed of to annul or modify the proceedings of a tribunal, board or officer exercising judicial or extra-judicial functions which has acted without or an excess of jurisdiction, or with grave abuse of discretion amounting to lack of jurisdiction. For this petition to prosper, it is necessary to allege and show that there is no more appeal, or any other plain, speedy, and adequate remedy in the ordinary course of law. As a rule, where appeal is available, certiorari cannot be availed of unless it can be shown that appeal is not speedy, or adequate. Hence, the basic question to be considered is: Does the petitioner have the remedy to appeal or any other remedy available? If the answer is YES, certiorari is not available, as a rule. However, even if appeal is available, if it is not adequate, speedy or equally beneficial as certiorari, a petition for certiorari may be availed of (Landbank vs. CA, G.R. No. 129368, August 25, 20003). In other words, a petitioner must first exhaust all other remedies available before resorting to certiorari. For example, if he can file a motion for reconsideration, then he must do so instead of certiorari. (Pilipino Tel. Corp., vs. NTC, G.R. No. 138295, August 28, 2003). Certiorari is not a substitute for a lost appeal. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive (Conejos vs. CA, G.R. No. 149473, August 9, 2002). The task of a court in a certiorari proceeding is to determine whether the lower court committed grave abuse of discretion (Marcopper Mining vs. Solidbank Corporation, G.R. No. 134049, June 17, 2004). It is a remedy narrow in scope. It is not a general utility tool in the legal workshop. Its function is to raise only questions of jurisdiction and not other. It cannot be used for any other purpose. (Landbank of the Phils. vs. CA, G.R. No. 129368, August 25, 2003). Do not file certiorari if your purpose is to raise a factual issue or to ask for a re-evaluation of the facts and the evidence (PILTEL vs. NTC, G.R. No. 138295, August 28, 2003). The petition shall be filed not later than 60 days from notice of the judgment, order or resolution. In case a motion for reconsideration was filed, the 60-day period starts not from the notice of judgment but from notice of the denial of the motion for reconsideration (Docena vs. Lapesura, G.R. No. 140153, March 28, 2001). Certiorari cannot be availed of where the facts complained of merely constitute errors of judgment. Even if the order of judgment is erroneous as long as the court acted within the bounds of its authority, certiorari is not the remedy (Microsoft Corp. vs. Best Deal Computer Center Corp., G.R. No. 148029, September 24, 2002). Errors of judgments are correctible by appeal. Errors of jurisdiction, by certiorari.

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In filing for a petition for certiorari, the hierarchy of courts must be observed. Hence, even though the Supreme Court has concurrent jurisdiction with the CA and the RTC to issue a writ of mandamus, prohibition or certiorari, litigants are advised against taking direct recourse to the SC without initially seeking proper relief from the lower courts (Carpio vs. Sulu Resources Dev. Corp., G.R. No. 148264, August 8, 2002). Do not confuse certiorari under Rule 45 from certiorari under Rule 65: The following are some of the distinctions: (a) Rule 45 raises pure questions of law; Rule 65, questions of jurisdiction. (b) Rule 45 is a mode of appeal; Rule 65, a special civil action. (c) Rule 45 is directed against final judgment or orders; Rule 65 may be directed even against interlocutory orders. (d) Rule 45 is filed within fifteen (15) days from notice of judgment; Rule 65 within sixty (60) days. (e) Rule 45 requires no prior motion for reconsideration; Rule 65 does require it as a rule. A motion for reconsideration is required before filing a petition for certiorari under Rule 65. This is a well-settled rule. Without a motion for reconsideration, the petition may be outrightly denied. There are exceptions to this rule. Under the exceptions, a motion for reconsideration will not be required. Examples: (a) when the order is a patent nullity; (b) where the issue raised has been passed upon the court below; (c) in case of urgency because any delay would prejudice the rights of the petitioner. (d) where the subject matter is perishable. EXECUTION OF JUDGMENTS 1. Execution shall issue as a matter of right when the judgment becomes final and executory. A motion for execution has to be filed by the prevailing party. (Sec. 1, Rule 39). When a judgment becomes final and executory, it is the ministerial duty of the court to issue a writ of execution. (Torres vs. NLRC, 330 SCRA 311 [2000]). 2. Query: May a judgment be executed pending appeal? It may be executed despite the pendency of the appeal. As long as there are good reasons to be stated in the special order and after due hearing. This execution pending appeal is called a discretionary execution. (Sec. 2, Rule 39; Future Guarantee and Insurance Corporation vs. Court of Appeals, G.R. No. 1110701, March 12, 2002). How can a discretionary execution be stayed? The party against whom the discretionary execution is directed should file a supersedeas bond conditioned upon the performance of the judgment allowed to be executed in case it is finally sustained. (Sec. 3, Rule 39). Assume that the judgment executed pending appeal is reversed totally or partially on appeal, what shall the trial court do? The trial court, upon motion, shall issue an order of restitution or reparation as equity and justice may warrant. (Sec. 5, Rule 39). 3. How is a final and executory judgment executed? If within five (5) years from the date of entry, the judgment maybe executed by mere motion. After five (5) years, the judgment may be enforced only by filing an action to revive the judgment (Sec. 6, Rule 39). 4. What judgment may not be stayed Normally, an appeal stays a judgment. Under the Rules the following judgments shall be immediately executory, and shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom. Judgments in actions, receivership, accounting and support. (Sec. 3, Rule 39). 5. An erroneous judgment is a valid judgment if the errors are not brought to the attention of a higher court through appeal. Errors of judgment are correctible by appeal. There is an error of judgment where the error is in

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the appreciation of the facts and the evidence. Where the error is one of jurisdiction, appeal is not the remedy, but certiorari. 6. An order of execution is not appealable (Sec 1(f), Rule 41). A party who desires to assail an order of execution may instead file the appropriate special civil action under Rule 65 like certiorari(Sec. 1, last par., Rule 41). 7. In executing a judgment for money, the sheriff shall demand from the judgment obligor the full amount in cash or certified check payable to the judgment debtor. 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, commissions, or his credits and others not capable of manual delivery by serving notice upon the person in possession of the same. This is called garnishment. 8. If the judgment is one for the delivery of real property like in unlawful detainer or forcible entry, the officer shall demand upon the occupant to vacate the property within three (3) working days (Sec. 10 (c), Rule 39). The officer cannot require the occupant to vacate on the same day the writ is executed even if a judgment in ejectment is immediately executory. Immediacy of execution does not mean instant execution. If the occupant does not vacate despite the three-day notice, it is not correct to file contempt proceedings against the occupant. Contempt is not a means of enforcing a judgment as a rule. The writ is not directed to the occupant but to the sheriff. By not vacating, the occupant did not violate the writ. What he violated was the notice of the sheriff. The remedy of the sheriff is to oust the occupant with the aid, if necessary, of law enforcement officers (Barete vs. Amila, 230 SCRA 219; Pascua vs. Heirs of Segundo Simeon, 161 SCRA 1). If however, after being elected 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 liable for indirect contempt (Sec. 3(b), Rule 71). 9. Note that, when the judgment directs the judgment obligor to perform an act other than the payment of money or the delivery of personal or real property. This judgment is categorized as a special judgment and if not complied with, may be a basis for contempt (Sec. 11, Rule 39). Thus, if an officer disobeys a writ of mandamus, he may be punished for contempt. 10. You are advised to look into those properties exempt from execution under Sec. 13 of Rule 39. Note however, that although the properties enumerated therein are exempt from execution, they are not exempt if they are subject to execution because of non-payment of their price if acquired through a sale or if they are subject to foreclosure of a mortgage on the property. 11. If the property levied upon by the sheriff is owned or claimed by a third person, the claimant may make an affidavit of his title to the property levied upon stating therein the grounds for his claim or assertion of right. The affidavit shall be served upon the officer making the levy with copy of the same given to the judgment obligee. This process is called terceria. 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 this bond is approved by the court, the officer can continue with the levy. The remedy of the debtor then is to file an action against the sheriff such as an action for damages with preliminary injunction or a TRO or an action for injunction as a main action to protect his rights to the property. This action will not be deemed to be an interference with the court that issued the writ of execution

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because the suit is against the sheriff performing an illegal act and not directed against the power of the court. The rule allows the third party claimant to vindicate his claim to the property levied upon even in a separate action (Sec. 16, Rule 39). 12. When real property is sold on execution, the judgment obligor has I year from the date of the registration of the sale to redeem the property from the purchaser (Sec. 28, Rule 39). This purchaser is not entitled to the rents, fruits or income of the property pending the redemption and shall belong to the judgment debtor until the expiration of his period of redemption (Sec. 32, Rule 39). 13. When the return of the writ of execution shows that the judgment 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 (Sec. 36, Rule 39). The court may also require the appearance of a person or corporation who holds property for the judgment debtor or is a debtor of the latter (Sec. 37, Rule 39). There is however, a limitation to this remedy. The judgment obligor cannot be required to appear before a court which is outside the province or city where the debtor resides. Thus, a Quezon City court cannot require the appearance of a debtor residing in Bulacan (Sec. 36, Rule 39). Also the debtors of the judgment debtor or a corporation or person who holds property of the debtor cannot be required to appear outside the city or province of his/its residence(Sec. 37, Rule 39).

14. The purchaser or a redemptioner shall not be entitled to receive the

rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption. (Sec. 32, Rule 39) another, the latter is also bound from the time that he has notice of the action or proceeding, and an opportunity at the suretys request to join in the defense. (Sec. 46, Rule 39)

15. When a judgment is rendered against a party who stands as surety for

16. The effect of a judgment or final order rendered by a court of the

Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows:

(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

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(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. (Sec. 47, Rule 39)

17. The effect of a judgment or final order of a tribunal of a foreign

country, having jurisdiction to render judgment or final order is as follows:

(a) In case of a judgment or final order upon a specific thing, the

judgment or final order is conclusive upon the title to the thing; and

(b) In case of a judgment or final order against a person, the

judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.

In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. (Sec. 48, Rule 39)

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