I. General Principles A. Concept of Remedial Law B. Substantive Law as Distinguished from Remedial Law C.

Rule-making Power of the Supreme Court 1. Limitations on the rule-making power of the Supreme Court 2. Power of the Supreme Court to amend and suspend procedural rules D. Nature of Philippine Courts 1. Meaning of a court 2. Court as distinguished from a judge 3. Classification of Philippine courts 4. Courts of original and appellate jurisdiction 5. Courts of general and special jurisdiction 6. Constitutional and statutory courts 7. Courts of law and equity 8. Principle of judicial hierarchy 9. Doctrine of non-interference or doctrine of judicial stability II. Jurisdiction A. Jurisdiction over the parties 1. How jurisdiction over the plaintiff is acquired 2. How jurisdiction over the defendant is acquired B. Jurisdiction over the subject matter 1. Meaning of jurisdiction over the subject matter 2. Jurisdiction versus the exercise of jurisdiction 3. Error of jurisdiction as distinguished from error of judgment 4. How jurisdiction is conferred and determined 5. Doctrine of primary jurisdiction 6. Doctrine of adherence of jurisdiction 7. Objections to jurisdiction over the subject matter

8. Effect of estoppel on objections to jurisdiction C. Jurisdiction over the issues D. Jurisdiction over the res or property in litigation E. Jurisdiction of Courts 1. Supreme Court 2. Court of Appeals 3. Court of Tax Appeals 4. Sandiganbayan 5. Regional Trial Courts 6. Family Courts 7. Metropolitan Trial Courts/Municipal Trial Courts 8. Shariah Courts F. Jurisdiction over small claims, cases covered by the rules on Summary Procedure and Barangay Conciliation G. Totality Rule III. Civil Procedure A. Actions 1. Meaning of ordinary civil actions 2. Meaning of special civil actions 3. Meaning of criminal actions 4. Civil actions versus Special proceedings 5. Personal actions and real actions 6. Local and transitory actions 7. Actions in rem, in personam and quasi in rem B. Cause of Action 1. Meaning of cause of action 2. Right of Action versus Cause of action 3. Failure to state a cause of action 4. Test of the sufficiency of a cause of action 5. Splitting a single cause of action and its effects 6. Joinder and misjoinder of causes of action

C. Parties to Civil Actions 1. Real Parties in interest; Indispensable parties; Representatives as parties; Necessary parties; Indigent Parties; Alternative defendants 2. Compulsory and permissive joinder of parties 3. Misjoinder and non-joinder of parties 4. Class Suit 5. Suits against entities without juridical personality 6. Effect of death of party litigant D. Venue 1. Venue versus Jurisdiction 2. Venue of real actions 3. Venue of personal actions 4. Venue of actions against non-residents 5. When the Rules on Venue Do not Apply 6. Effects of Stipulations on Venue E. Pleadings 1. Kinds of Pleadings a. Complaint b. Answer (1) Negative defenses (2) Negative pregnant (3) Affirmative Defenses c. Counterclaims (1) Compulsory counterclaim (2) Permissive counterclaim (3) Effect on the Counterclaim when the complaint is dismissed d. Cross-claims e. Third (fourth, etc.) party complaints f. Complaint-in-intervention g. Reply

2. Pleadings allowed in small claim cases and cases covered by the rules on summary procedure 3. Parts of a pleading a. Caption b. Signature and address c. Verification and certification against forumshopping (1) Requirements of a corporation executing the verification/certification of non-forum shopping d. Effect of the signature of counsel in a pleading 4. Allegations in a pleading a. Manner of making allegations (1) Condition precedent (2) Fraud, mistake, malice, intent, knowledge and other condition of the mind, judgments, official documents or acts b. Pleading an actionable document c. Specific denials (1) Effect of failure to make specific denials (2) When a specific denial requires an oath 5. Effect of failure to plead 1. Failure to plead defenses and objections 2. Failure to plead a compulsory counterclaim and cross-claim 6. Default a. When a declaration of default is proper b. Effect of an order of default c. Relief from an order of default d. Effect of a partial default e. Extent of relief f. Actions where default are not allowed 7. Filing and Service of pleadings I. Payment of docket fees II. Filing versus service of pleadings

III. Periods of filing of pleadings IV. Manner of filing V. Modes of service (1) Personal service (2) Service by mail (3) Substituted service (4) Service of judgments, final orders or resolutions (5) Priorities in modes of service and filing (6) When service is deemed complete (7) Proof of filing and service 8. Amendment a. Amendment as a matter of right b. Amendments by leave of court c. Formal amendment d. Amendments to conform to or authorize presentation of evidence e. Different from supplemental pleadings f. Effect of amended pleading F. Summons 1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem 2. Voluntary appearance 3. Personal service 4. Substituted service 5. Constructive service (by publication) a. Service upon a defendant where his identity is unknown or where his whereabouts are unknown b. Service upon residents temporarily outside the Philippines 6. Extra-territorial service, when allowed 7. Service upon prisoners and minors 8. Proof of service

I.

General Principles A. Concept of Remedial Law REMEDIAL LAW is that branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion [Bustos vs. Lucero, 81 Phil. 640] . It is also known as Adjective Law. B. Substantive Law Distinguished from Remedial Law Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the rights and duties that give rise to a cause of action, as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p.195) C. Rule-Making Power of the Supreme Court The Supreme Court shall have the power to promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of the law, and legal assistance to the underprivileged. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p. 196-197) 1. Limitations on the rule-making power of the Supreme Court It is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense but operates only in a limited and unsubstantial manner to his disadvantage. The Courts power is to promulgate rules concerning adopt a pleading, general, practice, complete and and procedure in all courts, which is a power to comprehensive system of procedure, adding new and different rules with regard to their source and discarding old ones, and not merely to compile, revise or codify the rules of procedure existing at the time of the

Constitutions approval. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p.197-198) 2. Power of the Supreme Court to amend and suspend procedural rules The 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. The power of the Supreme Court to promulgate rules concerning pleading,

practice, and procedure includes the power to suspend the effectivity of such rules or to provide an exception from the operation of said rules. (Willard B. Riano, Fundamentals of Civil Procedure, p. 24) D. Nature of Philippine Courts a. Meaning of a court. A court is an entity possessing a personality separate and distinct from the men who compose or sit on it. (FeriaNoche, Civil Procedure Annotated, 2001 ed. p.4) b. Court as distinguished from a judge. Courts may exist without a present judge. There may be a judge without a court. The judge may become disqualified, but such fact does not destroy the court. The courts of the Philippines were created and the judges were appointed thereto later. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p.3) c. Classification of Philippine Courts Regular Courts Special Courts Quasi-Courts of Justice (Dr. Raul C Pangalanan, UP College of Law) d. Courts of original and appellate jurisdiction Courts of original jurisdiction are those wherein a cause arises, whereas courts of appellate jurisdiction are those wherein it is reviewed. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p. 2) e. Courts of general and special jurisdiction

 Courts of general jurisdiction are those competent to decide their own jurisdictions and to take cognizance of all causes, civil and criminal, of a particular nature, while courts of special jurisdiction are those incompetent to decide their own jurisdiction and taking cognizance only of a few specified matters. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p.2) f. Constitutional and Statutory courts Constitutional courts owe their existence to the Constitution, whereas statutory courts are those created by statue, although their creation may be mandated by the Constitution. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p.2) g. Courts of law and equity Courts of law are those which administer justice according to the laws of the land, while the courts of equity are those which administer justice according to the rules and principles of equity or conscience. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p. 2-3) h. Principle of judicial hierarchy The application should be filed with the court of lower level unless the importance of the issue involved deserves the action of the court of higher level. (Willard B. Riano, Fundamentals of Civil Procedure, p. 233) i. Doctrine of non-interference or doctrine of judicial stability Courts of co-equal jurisdiction and coordinate jurisdiction cannot interfere with each others orders. (Willard B. Riano, Fundamentals of Civil Procedure, p 234) II. Jurisdiction The authority to hear and determine a cause or the right to act in a case. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p.130) A. Jurisdiction over the parties (Feria-Noche, Civil Procedure Annotated, 2001 ed. p.136) a. How jurisdiction over the plaintiff is acquired By filing the complaint. b. How jurisdiction over the defendant is acquired Service in person or substituted service or voluntary appearance.

B. Jurisdiction over the subject matter a. Meaning of jurisdiction over the subject matter (Feria-Noche, Civil Procedure Annotated, 2001 ed. p.132) The power to hear and determine cases of the general class to which the proceedings in question belong; the power to deal with the general subject involved in the action; it is conferred by law. b. Jurisdiction versus the exercise of jurisdiction When a court exercises its jurisdiction, an error committed while engaged in that exercise does not deprive it of the jurisdiction which it is exercising when the error is committed. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p. 130) c. Error of jurisdiction as distinguished from error of judgment An error of judgment is one which the court may commit in the exercise of its jurisdiction. An error of jurisdiction renders an order of judgment void or voidable. Errors of jurisdiction are reviewable on certiorari; errors of judgment only by appeal. (FeriaNoche, Civil Procedure Annotated, 2001 ed. p. 130-131) d. How jurisdiction is conferred and determined Jurisdiction is conferred and determined by law. e. Doctrine of primary jurisdiction Courts will not resolve a controversy involving a question demands discretion intricate which the is within the of jurisdiction of an administrative tribunal, especially where the question exercise the of sound administrative and Riano, requiring matters special fact. knowledge B.

expertise of said tribunal in determining technical and (Willard Fundamentals of Civil Procedure,p. 173) f. Doctrine of adherence of jurisdiction Once jurisdiction has been acquired, the court retains it until the final termination of the case. g. Objections to jurisdiction over the subject matter Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign authority which organizes the court. It is given only by law and in the manner prescribed by law, and an objection

based on the lack of such jurisdiction cannot be waived by the parties. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p. 133) Objections to jurisdiction over the subject matter may be made by the defending party by filing a motion to dismiss based on the ground that the court has no jurisdiction over the subject matter of the claim. (Willard B. Riano, Fundamentals of Civil Procedure,p. 174) h. Effect of estoppels on objections to jurisdiction As a rule, neither waiver nor estoppels shall apply to confer jurisdiction upon a court barring highly meritorious and exceptional circumstances. (FeriaNoche, Civil Procedure Annotated, 2001 ed. p. 133) C. Jurisdiction over the issues Jurisdiction over the issue is the authority to try and decide the issues raised by the pleadings of the parties. (Reyes vs. Diaz, 73 Phil. 484) D. Jurisdiction over the res or property in litigation Jurisdiction over the res or property is that obtained by a seizure of the property under legal process of the court, whereby it is held to abide by such order as the court makes, and with respect to the person whose rights in the property are to be affected, jurisdiction may be attained by constructive service of process, it not being necessary that they should be brought within the reach of the of the process of the court or should receive actual notice. Jurisdiction over the res includes jurisdiction over the personal E. Jurisdiction of Courts a. Supreme Court The Supreme Court shall exercise original jurisdiction over the following: 1. Cases affecting ambassadors, other public ministers and consuls, and status of a plaintiff. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p. 132-133)

2. Petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus (Feria-Noche, Civil Procedure Annotated, 2001 ed. p. 144) b. Court of Appeals The Court of Appeals shall exercise: 1. Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, and auxiliary writs of processes, whether or not in aid of its appellate jurisdiction. 2. Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts. 3. Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, order or awards of RTC and quasi-judicial agencies. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p.154) c. Court of Tax Appeals The Court of Tax Appeals shall exercise exclusive appellate jurisdiction to receive, review by appeal, as herein provided: 1. Decisions of the Bureau of Internal Revenue in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges, penalties imposed in relation thereto, or other matters arising under the National Internal Revenue Code or other law or part of law administered by the BIR. 2. Decisions of the Commissions of Customs in cases involving liability for custom duties, fees or other money charges; seizure, detention or release of property affected, fines, forfeitures or other penalties imposed in relation thereto; or other matters arising under the Tariff and Customs Code or other law or part of law administered by the Bureau of Customs. 3. Decisions automatic of the Secretary of the of Finance of in the review decisions

Commissioner of Customs affirming the decisions of the Collector of Customs that are adverse to the government in cases involving the

assessment of duties and on matters of imposition of d. Sandiganbayan Original Jurisdiction 1. Violations of RA 3019, RA 1379 and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code where one or more of the accused ore officials occupying the following: 1) Officials director RA 6758 2) Members of Congress and officials thereof classified as Grade 27 and up under RA 6758 3) Members of the Judiciary without prejudice to the provisions of the Constitution 4) Chairmen Constitutional prejudice Constitution 5) All other national and local officials classified as Grade 27 and higher under RA 6758 2. Other offenses or felonies whether simple or complexed with other crimes, committed by the public officials and employees 3. Civil and criminal cases filed pursuant to and in connection with EO 1, 2, 14 and 14-A issued in 1986 Appellate Jurisdiction 1. Exclusive appellate jurisdiction over final judgments, resolutions or orders of the Regional Trial Courts whether in the exercise of their own original jurisdiction or of other appellate jurisdiction. to and the members provisions of of Commissions, without of the executive higher, branch occupying he positions of regional and otherwise classified as grade 27 and higher of anti-dumping duty. (Feria Noche, Civil Procedure, p. 188)

(Feria-Noche, Civil Procedure Annotated, 2001 ed. pp. 182-185) e. Regional Trial Courts Original and Exclusive 1. In all civil actions in which the subject of the litigation is incapable of pecuniary estimation; 2. In all civil actions which involve the title to, or possession of, real property, or any interest therein, where the assessed value of the property involved exceeds P20,000, or for civil actions in Metro Manila where such value exceeds P50,000 except actions for forcible entry into and unlawful detainer of lands or buildings, original jurisdiction over which is conferred upon the MeTC, MTC, and MCTC; 3. In all actions in admiralty and maritime jurisdiction where the demand or claim exceeds P200,00, or in Metro Manila where such demand or claim exceeds P400,00; 4. In all matters of probate, both testate and intestate, where the gross value of the estate exceeds P200,00 or probate mattes in Metro Manila where such value exceeds P400,000; 5. In all actions involving the contract of marriage and marital relations; 6. In all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising juridicial or quasi-judicial functions; 7. In all civil actions and civil proceedings falling within the exclusive original jurisdiction of a Juvenile and Domestic Relations Court and of the Court of Agrarian Relations as now provided by law; and 8. In all other cases in which the demand, exclusive of interest and damages of whatever kind, attorneys fees, litigation expenses, and cost or the value of the property in controversy exceeds P200,000, or in such other cases in Metro Manila

where the demand, exclusive of the abovementioned items exceeds P400,000. Appellate Jurisdiction 1. Cases decided by the MTC, MeTC and MCTC in their respective territorial 162-163) jurisdictions. (FeriaNoche, Civil Procedure Annotated, 2001 ed. pp.

f. Family Courts Exclusive and original jurisdiction to hear and decide the following: 1. Criminal cases where one or more of the accused is below 18 years of age, or where one or more of the victims is a minor at the time of the commission of the offense; provided that if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. 2. Petitions for guardianship, custody of children, habeas corpus in relation to the latter. 3. Petitions for adoption of children and the revocation thereof. 4. Complaints for annulment of marriage, declaration of nullity of marriage and those relating to marital status and property relations of husband and wife or those living together under different status and agreements and petitions for dissolutions of conjugal partnership of gains. 5. Petitions for support and/or acknowledgement 6. Summary judicial proceeding brought under EO 209 7. Petitions for declaration of status of children as abandoned, dependent or neglected children 8. Petitions for the constitution of the family home 9. Cases against minors cognizable under Dangerous Drugs Act 10. Violations of RA 7610

11. Cases of domestic violence against women and children. (Feria-Noche, Civil Procedure Annotated, 2001 ed. pp.179-181) g. Metropolitan Trial Courts/Municipal Trial Courts Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction; and 1. Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of the kind, nature, value or amount therof; provided, however, that in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. [Sec. 2, RA 7691]. (FeriaNoche, Civil Procedure Annotated, 2001 ed. p. 170-171)

h. Shariah Courts The Shariah Appellate Court shall have the following powers: 1. Exercise original jurisdiction over petitions for certiorari, prohibition, mandamus, habeas corpus, and other auxiliary writs and processes in aid of its appellate jurisdiction. 2. Exercise exclusive appellate jurisdiction over all cases tried in the Shariah District Courts as established by law. The Shariah District Courts 1. Original jurisdiction over: 1) All cases involving legitimacy, involving custody, paternity, disposition, guardianship, 2) All cases

and filiation arising under PD No. 1083 distribution, and settlement of the

estate of deceased Muslims, probate wills, issuance or of letters of of administration appointment

administrators or executors re the parties involved are Muslims except those for forcible entry ad unlawful detainer regardless of the nature or the aggregate value of the property. 3) 4) Title VI, Book Two of PD 1083 All actions arising from customary contracts in which the parties are Muslims 5) All petitions for mandamus, certiorari, prohibition, injunction,

habeas corpus, and all other auxiliary writs and processes in aid of its appellate jurisdiction. 2. Concurrently with existing civil courts, original jurisdiction over: 1) Petitions by Muslims for the constitution of a family home, change of name and commitment of an insane person to an asylum 2) All other personal and real actions not mentioned which shall fall under the exclusive original jurisdiction of MTCC 3) All special actions for interpleader or declaratory relief wherein the parties are Muslims or the property involved belongs exclusively to Muslims (FeriaNoche, Civil Procedure, p 192) 3. Appelate Jurisdiction 1) Appellate jurisdiction over all cases tried in the Shariah Circuit Courts The Shariah Circuit Courts 1. Exclusive original jurisdiction over: 1) All cases involving offenses under PD 1083

2)

All

civil

actions

and

proceedings

between parties who are Muslims or have been married in accordance with Article 13 of the Code of Muslim Personal Laws of the Philippines involving disputes relating to: a. Marriage b. Divorce under PD 1083 c. Betrothal or breach of contract to marry d. Customary dower e. Disposition and distribution of property under divorce f. Maintenance g. Restitution of and support, rights and consolatory gifts marital (Feria-Noche, Civil Procedure Annotated, 2001 ed. pp. 193194)

ii. Juridiction over small claims, cases covered by the rules on Summary Procedure and Barangay Conciliation The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts shall apply this Rule in all actions which are: (a) purely civil in nature where the claim or relief prayed for by the plaintiff is solely for payment or reimbursement of sum of money, and (b) the civil aspect of criminal actions, either filed before the institution of the criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule 111 of the Revised Rules Of Criminal Procedure. (A.M. No. 08-8-7-SC THE RULE OF PROCEDURE FOR SMALL CLAIMS CASES, Section 4)

j.

Totality Rule Provided further, That where there are several claims or causes of actions between the same or different parties, embodied in the same complaint, the amount of the demand shall be

the totality of the claims in all the causes of action, irrespective of whether the causes of action arose out of the same or different transactions. (Section 33)

III. CIVIL PROCEDURE A. Actions The legal and formal demand of ones right from another person made and insisted in a court of justice. (Willard B. Riano, Fundamentals of Civil Procedure, 2001 ed. p. 69 1. Meaning of ordinary civil actions Ordinary civil actions are governed by the ordinary rules of procedure which apply to civil actions only suppletorily. (Willard B. Riano, Fundamentals of Civil Procedure, 2001 ed. p. 71) 2. Meaning of Special Civil Actions This action is a special civil action: If a person by fraud, intimidation, strategy, threat or stealth, deprives a lawful possessor of a real property, the person dispossessed may file a special civil action for forcible entry. (Willard B. Riano, Fundamentals of Civil Procedure, 2001 ed.p. 74) 3. Meaning Of Criminal Actions A criminal action is one by which the State prosecutes a person for an act or omission punishable by law. Feria-Noche, Civil Procedure Annotated, 2001 ed. p. 202) 4. Civil Actions versus Special Proceedings A civil action is one by which a party sues another for the enforcement of a right or the prevention of a redress of a wrong. A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p. 203) 5. Personal actions and real actions

 Real actions are actions affecting title to or possession of real property, or interest therein or forcible entry or detainer actions. Personal actions are founded on privity of contract or for the enforcement or resolution of a contract or for recovery of personal property. (Feria-Noche, Civil Procedure Annotated, 2001 ed. p. 205) 6. Local and transitory actions A local action is one brought in a particular place depending on the location of the property subject of the litigation. Willard B. Riano, Fundamentals of Civil Procedure, 2001 ed.p. 92) A transitory action is an action dependent on the residence of the parties. Willard B. Riano, Fundamentals of Civil Procedure, 2001 ed.p. 9) 7. Actions in rem, in personam and quasi in rem An action in rem has its object a judgment that binds the whole world and is a classification of an action according to its object. An action in personam is a classification of an action according to its object. Here the action seeks to make a party personally liable on a claim. An action quasi in rem seeks a judgment on the interest of a named defendant over a particular property. (Willard B. Riano, Fundamentals of Civil Procedure, 2001 ed.p. 92) B. Cause of Action 1. Meaning of Cause of Action A cause of action is the act or omission by which a party violates the right of another. (Section 2, Rule 2, Rules of Court) 2. Right of Action versus Cause of Action The term cause of action has been held to be synonymous with the right of action but in the law of pleading (Code Pleading) one is distinguished from the other in that a right of action is a remedial right belonging to a person, while a cause of action is a formal statement of the operative facts that give rise to

such remedial right. (Feria-Noche, Civil Procedure Annotated, 2001 ed. pp 212-213) 3. Failure to state a cause of action It refers to the insufficiency of allegation in the pleading. (Dabuco versus Court of Appeals) 4. Test of the sufficiency of the cause of action In Philippine National Bank versus Court of Appeals, 291 SCRA 271, it held that a complaint sufficiently states a cause of action when the following questions can be answered in the affirmative: (a) Does the complaint show that the plaintiff has suffered an injury? (b) Is it an injury, which the law recognizes as a wrong and for which it provides a remedy? (c) Is the defendant liable for the alleged wrong done? (d) If the defendant is liable, is there a legal remedy for such injury? (Willard B. Riano, Fundamentals of Civil Procedure, 2001 ed.p. 108) 5. Splitting a cause of action and its effects If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits in any one is available as a ground for the dismissal of the others. (Section 4, Rule 2, Rules of Court) 6. Joinder and Misjoinder of causes of actions 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, subject to the following conditions: i. The party joining the causes of action shall comply with the rules on joinder of parties; ii. The joinder shall not include special civil actions or actions governed by special rules; iii. Where the causes of action are between the same parties but pertain to different venues or jurisdictions, the joinder may be allowed in the Regional Trial Court provided one of the causes of action falls within the jurisdiction of said court and the venue lies therein; and

iv. Where the claims in all the causes action are principally for recovery of money, the aggregate amount claimed shall be the test of jurisdiction. (Section 5, Rules of Court) Misjoinder of causes of action. Misjoinder of causes of action is not a ground for dismissal of an action. A misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded with separately. (Section 6, Rules of Court) C. Parties to Civil Actions 1. Real Parties in Interest- A real party in interest is the party who stands to benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit. (Feria Noche, p. 227) GENERAL RULE: In a breach of contract, the real parties in interest are the parties to the contract. So strangers, as a rule, have no business suing in a contract because they are not real parties in interest. EXCEPTION: When there is a stipulation in the contract favorable to a third person. Example: Third- Party Liability in insurance. A insured his car with X insurance company for TPL. A bumped B. B can file a case against A and X to recover from the insurance contract. (Hildegardo Iigo, p. 61)

Indispensable Parties-is one whose interest will be affected by the courts action in the litigation, and without whom no final determination of the case can be had. The partys interest in the subject matter of the suit and in the relief sought are so inextricably intertwined with the other parties that his legal presence as a party to the proceeding is an absolute necessity. (Feria Noche, p. 236)

Examples: In an action for partition of land, all the co-owners thereof are indispensable parties. In an action for annulment of partition, all of the heirs must be made parties. In an action for recovery of ownership of land, the person who claims to be the owner of the land is the indispensable party

defendant and the one in possession as tenant. (Hildegardo Iigo, p. 65)

Representatives as Parties-Where the action is allowed to be prosecuted or defended by a representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. (Feria Noche, p. 230)

Example: GUARDIAN. Suppose Judee, a minor was injured. A case for damages has to be filed in behalf of the minor. A minor cannot use and be sued but she is the real party in interest. The law allows the parents to come in and also be the plaintiff. The parents are what we call the representative party. The law still requires for the minor to be included in the case. The law states that the beneficiary shall be included in the title of the case and shall be deemed to be the real party in interest. (Hildegardo Iigo, p. 62)

Necessary Parties-is one whose interest in the controversy or subject matter is distinct and divisible from the interest of the other parties and will not necessarily be prejudiced by a judgment which does complete justice to the parties in court. (Feria Noche, p. 236)

Example: In an action for collection of debt instituted by the creditor against the surety, the principal debtor is merely a necessary party. In an action for recovery of debt instituted by the creditor against the debtor, the guarantor or surety is merely a necessary party. In an action for foreclosure of a real estate mortgage instituted by the first mortgagee, the second mortgagee is merely a necessary party. (Hildegardo Iigo, p. 62)

Indigent Party-a party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex parte application and hearing, is satisfied that the party is one who has no money or property sufficient and available for food, shelter and basic necessities for himself and his family.

Note: A party need not be a pauper to entitle him to litigate in forma pauperis. It suffices that he be an indigent, that is, that he does not have sufficient means for food, shelter and basic necessities. (Feria Noche, p. 255-256)

Alternative Defendants-where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a right of relief against the other. (Feria Noche, p. 244)

2. Compulsory and Permissive Joinder of Parties-all persons in whom or against whom any right to relief in respect to or arising out of the same transaction or series of transaction is alleged to exist, whether jointly, severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action; but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any proceedings in which he may have no interest. (Feria Noche, p. 232)

3. Mis-joinder and Non-joinder of Parties-Neither misjoinder nor non-joinder of parties is a ground for dismissal of an action. Parties may be dropped or added by order of the court on (Feria Noche, p. 239) motion of any party or on its own initiative at any stage of the the action and on such terms as are just.

4. Class Suit-when the subject matter of the controversy is one of common or general interest to many persons so numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in interest shall have the right to intervene to protect his individual interest. Example: In an action against the officers of voluntary association to wind up its affairs and to enforce an accounting for money and property in their possession, it is not necessary to make all the members of the association parties to the action. The plaintiffs may file the complaint by adding after the names of the parties plaintiffs the words in their own befalf and in behalf of other members of Turnuhan Polistico & Co.. (Feria Noche, p. 241)

5. Suits Without Juridical Personality-when two or more persons not organized as an entity with juridical personality enter into a transaction,

they may be sued under the name by which they are generally or commonly known. In the answer of such defendant, the names and addresses of the persons composing said entity must all be revealed. (Feria Noche, p. 245) Note: You cannot sue the entity because it has no juridical personality. BUT you do not also know the members of that entity, so the law ALLOWS you to file a case against the entity. When the defendants file an answer, they must file under their names as they are really the real parties in interest. When the lawyer answers the complaint, he is duty-bound to provide the names of all the defendants. ((Hildegardo Iigo, p. 71)

6. Effect of Death of Party Litigant- Whenever a party to a pending action dies, and the claim is not thereby extinguished, it shall be the duty of his counsel to inform the court within 30 days after such death of the fact thereof, and to give the name and address of his legal representative or representatives. Failure of counsel to comply with this duty shall be a ground for disciplinary action. The heirs of the deceased may be allowed to be substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of 30 days from notice. If no legal representative is named by the counsel for the deceased party, or if the one so named shall fail to appear within the specified period, the court may order the opposing party, within a specified time, to procure the appointment of an executor or administrator for the estate of the deceased and the latter shall immediately appear for and on behalf of the deceased. The court charges in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. (Feria Noche, p. 246)

Note: Attorneys are agents of their clients and upon the death of the latter, the relation of attorney and client is terminated. In the absence of a retainer from the heirs or authorized representative as his deceased client, the attorney would thereafter have no further action in the case, save to

inform the court of the clients death and take the necessary steps to safeguard the deceaseds rights in the case. (Feria Noche, p. 247)

D. Venue 1. Venue vs. Jurisdiction JURISDICTION refers to the authority of the court to hear the case, whereas VENUE refers only to the place where the action is brought or tried. JURISDICTION over the subject matter cannot be waived, whereas VENUE is waivable and can be subject of agreement. JURISDICTION is governed by substantive law, whereas VENUE is governed by procedural law. JURISDICTION refers to the relation of the parties to the court, whereas VENUE refers to the relation between the parties. JURISDICTION limits the courts authority, whereas VENUE limits plaintiffs rights. (Hildegardo Iigo, p. 84)

2. Venue of Real Actions-actions affecting title to or possession of real property, or interest therein, shall be commenced and tried in the proper court which has jurisdiction over the area wherein the real property involved, or a portion thereof, is situated. Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the municipality or city wherein the real property involved, or a portion thereof, is situated. (Feria Noche, p. 258)

3. Venue of Personal Actions-all other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of non-resident defendant where he may be found, at the election of the plaintiff. (Feria Noche, p. 260) Example: Suppose there are 4 plaintiffs and 4 defendants, and the 4 plaintiffs reside in 4 different cities or municipalities. So ang choice mo ng venue is 8 because the law says, where the plaintiff or any of the principal plaintiffs or where the defendant or any of the principal defendants reside (Hildegardo Iigo, p. 77)

4. Venue of Actions Against Non-residents- if any of the defendants does not reside and is not found in the Philippines, and action affects the

personal status of the plaintiff, or any property of said defendant located in the Philippines, the action may be commenced tried in the court of the place where the plaintiff resides, or where the property or any portion thereof is situated or found. (Feria Noche, p. 263)

Q: What action can be filed against a non-resident defendant who is not even found here in the Philippines? A: There are two: 1. The action that affects the personal status of the plaintiff; or 2. The action affects the property or any portion thereof of said defendants located here in the Philippines. Example for Number 1: A young child was abandoned by his illegitimate father. The illegitimate father left the Philippines for good. The son wants to file a case against the father for compulsory recognition, at least to improve his status. Can the child file a case for compulsory acknowledgment here in the Philippines against the father for compulsory acknowledgment? YES because the action involves the personal status of the plaintiff. The res is the status of the plaintiff who happens to be in the Philippines.

Example for Number 2: The defendant who is already abroad owns a piece of land located here in the Philippines and I want to recover the ownership of the piece of land. Q: What is the res? A: The res is the land which is situated here in the Philippines. Therefore, I can sue the defendant even if he is there because the court can acquire jurisdiction over the res. (Hildegardo Iigo, p. 81)

5. When the Rules on Venue DO NOT Apply? This Rule shall not apply: a. In those cases where a specific rule or law provides otherwise; or

b. Where the parties have validly agreed in writing before the filing of the action on the exclusive venue thereof. (Feria Noche,p. 81) Q: What cases which provides for venue of the action which may be different from what Rule 4 says? A: The following: 1. A civil action arising from LIBEL under Article 360 of the Revised Penal Code. 2. Section 5 (4), Article VIII, 1987 Constitution-The SC may order a change of venue or place of trial to avoid a miscarriage of justice. (Hildegardo Iigo,p. 81) WHERE THE PARTIES HAVE VALIDLY AGREED IN WRITING BEFORE THE FILING OF THE ACTION ON THE EXCLUSIVE VENUE THEREOF Example: Contracts of banks and other financing companies. Sometimes it says there that in case of suits arising out of these contracts, the action shall be filed in the City of Makati or Manila which is neither the residence of the parties. Now, can we agree to file a case other than that where the parties reside? YES because the law says we can agree on a place where the action will be filed provided it is in writing and it is stipulated even before the filing of the action. (Hildegardo Iigo, p. 82)

6. Effect of Stipulation on Venue-a written agreement of the parties as to venue before the filing of an action is not only binding between the parties but also enforceable by the courts. If the parties agree in writing before the filing of the action that the same shall be filed exclusively in a certain place, it cannot be filed in another place even if that other place is the residence of the parties or the location of the real property involved. In this instance, the stipulated venue is mandatory. But if the agreement is that the action may be filed in a certain place, it can be filed in another place which is the residence of the parties or the location of the real property involved, and in this instance, the stipulation is merely permissive. (Feria Noche, p. 266)

E. Pleadings Pleadings are the written statements of the respective claims and defenses of the parties submitted to the court for appropriate judgment. (Section 1, Rule 6, Rules of Court)

1. Kinds of Pleadings a. Complaint The complaint is the pleading alleging the plaintiff's cause or causes of action. The names and residences of the plaintiff and defendant must be stated in the complaint. b. Answer An answer is a pleading in which a defending party sets forth his defenses. i. Negative Defenses A negative defense is the specific denial of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action. ii. Negative Pregnant Sometimes called Pregnant Denial Refers to a denial which implies its affirmative opposite by seeming to deny only a qualification of the allegation and not the allegation itself. For example, "I have never consumed cocaine while on duty" might imply that the person making the statement had consumed cocaine on other occasions, and was only denying that they had done so while on duty. (Wikipedia) iii. Affirmative Defenses An affirmative defense is an allegation of a new matter which, while hypothetically admitting the material allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him. The affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel, former recovery, discharge

in bankruptcy, and any other matter by way of confession and avoidance. c. Counterclaims A counterclaim is any claim which a defending party may have against an opposing party. i. Compulsory counterclaim A compulsory counterclaim is one which, being cognizable by the regular courts of justice, arises out of or is connected with the transaction or occurrence constituting the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of the court both as to the amount and the nature thereof, except that in an original action before the Regional Trial Court, the counter-claim may be considered compulsory regardless of the amount. ii. Permissive Counterclaim It does not arise out of or is not necessarily connected with the transaction or occurrence that is the subject matter of the opposing partys claim. It does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction, and It must be within the jurisdiction of the court and is cognizable by the regular courts of justice. (FeriaNoche, Civil Procedure Annotated, 2001 ed. pp. 278279) iii. Effect on the counterclaim when the complaint is dismissed d. Cross-claims A cross-claim is any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.

e. Third (fourth, etc.) party complaints A third (fourth, etc.) party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) party defendant for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. f. Complaint-in-intervention A complaint-in-intervention is a complaint in a suit or action in which a third person, not a party to the case, is permitted by the court to make himself a party to the case. (H. Inigo, p. 281) g. Reply A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters. If a party does not file such reply, all the new matters alleged in the answer are deemed controverted. 2. Pleadings not allowed in small claim cases and cases covered by the rules in summary procedure The following pleadings, motions, or petitions shall not be allowed in the cases covered by this Rule: (a) Motion to dismiss the complaint except on the ground of lack of jurisdiction; (b) Motion for a bill of particulars; (c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; (d) Petition for relief from judgment; (e) Motion for extension of time to file pleadings, affidavits, or any other paper; (f) Memoranda;

(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; (h) Motion to declare the defendant in default; (i) Dilatory motions for postponement; (j) Reply; (k) Third-party complaints; and (l) Interventions. 3. Parts of a pleading a. Caption The caption sets forth the name of the court, the title of the action, and the docket number if assigned. The title of the action indicates the names of the parties. They shall all be named in the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated with an appropriate indication when there are other parties b. Signature and address Every pleading must be signed by the party or counsel representing him, stating in either case his address which should not be a post office box. An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay. Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges scandalous or indecent matter therein, or fails promptly report to the court a change of his address, shall be subject to appropriate disciplinary action. c. Verification and certification against forum-shopping

 Requirements

of

corporation

executing

the

verification/certification of non-forum shopping o The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Effect of a signature of counsel in a pleading o The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. 4. Allegations in a Pleadings Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the statement of mere evidentiary facts. If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be clearly and concisely stated. a) Manner of making allegations

(1) Condition precedent In any pleading a general averment of the performance or occurrence of all conditions precedent shall be sufficient.

(2) Fraud, mistake, condition of the mind In all averments of fraud or mistake the circumstances constituting fraud or mistake must be stated with particularity. Malice, intent, knowledge, or other condition of the mind of a person may be averred generally. Judgment. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it. Official document or act . In pleading an official document or official act, it is sufficient to aver that the document was issued or the act done in compliance with law.

b) Action or defense based on document . Whenever an action or defense is based upon a written instrument or document, the substance of such instrument or document shall be set forth in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth in the pleading.

c)

Specific denials

(1) Allegations not specifically denied deemed admitted. Material averment in the complaint, other than those as to the amount of unliquidated damages, shall be deemed admitted when not specifically denied. Allegations of usury in a complaint to recover usurious interest are deemed admitted if not denied under oath.

(2) Striking out of pleading or matter contained therein. Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party

within twenty (20) days after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom.

5. Effect of Failure to Plead 1) Failure to plead defenses and objections Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. 2) Failure to plead a compulsory counterclaim and cross-claim A compulsory counterclaim, or a cross-claim, not set up shall be barred.

6. Default If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the claiming party with notice to the defending party, and proof of such failure, declare the defending party in default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of evidence may be delegated to the clerk of court. (a) Effect of order of default . A party in default shall be entitled to notice of subsequent proceedings but not to take part in the trial. (b) Relief from order of default. A party declared in default may at any time after notice thereof and before judgment file a motion under oath to set aside the order of default upon proper showing that his failure to answer was due to fraud, accident, mistake or

excusable negligence and that he has a meritorious defense. In such case, the order of default may be set aside on such terms and conditions as the judge may impose in the interest of justice. (c) Effect of partial default. When a pleading asserting a claim states a common cause of action against several defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon the answers thus filed and render judgment upon the evidence presented. (d) Extent of relief to be awarded. A judgment rendered against a party in default shall not exceed the amount or be different in kind from that prayed for nor award unliquidated damages. (e) Where no defaults allowed. If the defending party in an action for annulment or declaration of nullity of marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in order to see to it that the evidence submitted is not fabricated.

7.Filing and Service of pleadings a. Filing versus service of pleadings Filing is the act of presenting the pleading or other paper to the clerk of court while service is the act of providing a party with a copy of the pleading or paper concerned. If any party has appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to one copy of any paper served upon him by the opposite side. b. Manner of filing The filing of pleadings, appearances, motions, notices, orders, judgments and all other papers shall be made by presenting the original copies thereof, plainly indicated as such, personally to the clerk of court or by sending them by

registered mail. In the first case, the clerk of court shall endorse on the pleading the date and hour of filing. In the second case, the date of the mailing of motions, pleadings, or any other papers or payments or deposits, as shown by the post office stamp on the envelope or the registry receipt, shall be considered as the date of their filing, payment, or deposit in court. The envelope shall be attached to the record of the case. c. Modes of service 1 Personal service. Service of the papers may be made by delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy, between the hours of eight in the morning and six in the evening, at the party's or counsel's residence, if known, with a person of sufficient age and discretion then residing therein. 2. Service by mail. Service by registered mail shall be made by depositing the copy in the post office in a sealed envelope, plainly addressed to the party or his counsel at his office, if known, otherwise at his residence, if known, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if undelivered. If no registry service is available in the locality of either the senders or the addressee, service may be done by ordinary mail. 3. Substituted service. If service of pleadings, motions, notices, resolutions, orders and other papers cannot be made under the two preceding sections, the office and place of residence of the party or his counsel being unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both personal service and service by mail. The service is complete at the time of such delivery. 4. Service of judgments, final orders, or resolutions. Judgments, final orders or resolutions shall be served either personally or by registered mail. When a party summoned by publication has failed to appear in the action, judgments, final orders or resolutions against him shall be served upon him also by publication at the expense of the prevailing party. 5. Completeness of service. Personal service is complete upon actual delivery. Service by ordinary mail is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by registered mail

is complete upon actual receipt by the addressee, or after five (5) days from the date he received the first notice of the postmaster, whichever date is earlier. 6. Priorities in modes of service and filing. Whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this Rule may be cause to consider the paper as not filed. 7. Proof of filing. The filing of a pleading or paper shall be proved by its existence in the record of the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the same; if filed by registered mail, by the registry receipt and by the affidavit of the person who did the mailing, containing a full statement of the date and place of depositing the mail in the post office in a sealed envelope addressed to the court, with postage fully prepaid, and with instructions to the postmaster to return the mail to the sender after ten (10) days if not delivered. 8. Proof of Service. Proof of personal service shall consist of a written admission of the party served, or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and the registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee. 9. Notice of lis pendens. In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the office of the registry of deeds of the province in which the property is situated notice of the pendency of the action. Said notice shall contain the names of the parties and the object of the action or defense, and a description of the property in that province affected thereby. Only from the time of filing such notice for record shall a purchaser, or encumbrancer of the property affected thereby, be deemed to have

constructive notice of the pendency of the action, and only of its pendency against the parties designated by their real names. The notice of lis pendens hereinabove mentioned may be cancelled only upon order of the court, after proper showing that the notice is for the purpose of molesting the adverse party, or that it is not necessary to protect the rights of the rights of the party who caused it to be recorded. 8. Amendment Pleadings may be amended by adding or striking out an allegation or the name of any party, or by correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect, so that the actual merits of the controversy may speedily be determined, without regard to technicalities, and in the most expeditious and inexpensive manner. a. Amendments as a matter of right. A party may amend his pleading once as a matter of right at any time before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is served. b. Amendments by leave of court. Substantial amendments may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion was made with intent to delay. Orders of the court upon the matters provided in this section shall be made upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (3a) c. Formal amendments. A defect in the designation of the parties and other clearly clerical or typographical errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion, provided no prejudice is caused thereby to the adverse party.

d. Amendment to conform to or authorize presentation of evidence. When issues not raised by the pleadings are tried with the express or implied consent of the parties they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to amend does not effect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice will be subserved thereby. The court may grant a continuance to enable the amendment to be made. e. Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from notice of the order admitting the supplemental pleading. f. Effect of amended pleadings. An amended pleading supersedes the pleading that it amends. However, admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses alleged therein not incorporated in the amended pleading shall be deemed waived.

F. SUMMONS

1. Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem.

Summon is a writ directed to the defendant, notifying him of the civil action filed against him.

a.)

Who issues: The Clerk of Court and signed by him under the

seal of the court.

b.) To whom issued: To the defendant

c.) Contents:

1. Name of the court and the names of the parties to the action.

2. A direction that the defendant answer within the time fixed by the rules.

3. Notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief prayed for.

a.) Under Rule 9, Sec.3, upon failure of the defendant to answer, the court shall proceed to render judgment granting the claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant to submit evidence.

d.) Why issued: For the court to acquire jurisdiction over the person of the defendant.

e.) Who may serve summons? 1. Sheriff 2. His deputy 3. Other proper court officer. This includes: a.) Warrant officer b.) Subpoena and process server c.) Bailiff

4. For justifiable reasons, a suitable person authorized by the court issuing the summons.

f.) How is a summons served?

1. Service in person on defendant ( Personal Service)

a.) By handing a copy to the defendant in person, or b.) If he refuses to receive and sign for it, by tendering it to him.

2. Substituted service

If for justifiable causes, the defendant can not be served (by personal service) within a reasonable time, service may be effected:

a.) By leaving copies of the summons at the defendants residence with some person of suitable age and discretion then residing therein;

Three (3) requisites must concur for a valid service of summons to the person therein;

1. He must be a resident therein; Thus, a house guest cannot receive summons.

2. He must be of suitable age; Thus, a child of tender age cannot receive summons.

3. He must have discretion.

a.) By leaving the copies at the defendants office or regular place of business with some competent person in charge thereof.

4. Service by publication a.) Service upon defendant whose identity or whereabouts are unknown.

In

any

action

where

the

defendant

is

designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained with diligent inquiry, service may, by leave of court, be effected by publication in a newspaper of general circulation in such places and for such time as the court may order.

5. Extraterritorial Service When the defendant does not reside and is not found in the Philippines and the action:

a.) Affects the personal status of the plaintiff; or

b.) Relates to, or the subject of which is, property within the Philippines in which the defendant has or claims a lien or interest, actual or contingent; or

c.) In which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein (property in the Philippines); or

d.) The property of the defendant has been attached within the Philippines.

Service may, by leave of court, be effected:

a.) Out of the Philippines by personal service as under Section 6; or

b.) By publication in a newspaper of general circulation in such places and for such time as the court may order, in which case:

c.) A copy of the summons and order of the court shall be sent by registered mail to the last know address of the defendant; or

d.) In any other manner the court may deem sufficient.

Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60) days from notice, within which the defendant must answer.

g.) On whom summons is served

1. Service in person on defendant a.) By handing a copy thereof to him in person, or if he refuses to receive and sign for it, by tendering it to him. 2. Service upon entity without juridical personality When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected:

a.) Upon all the defendants by serving up[on any one of them; or b.) Upon the person in charge of the office or place of business maintained in such name.

3. Service upon prisoners Service shall be effected upon him by the officer having

management of the jail or institution who is deemed deputized as a special sheriff for said purpose.

4. Service upon minors and incompetents. Upon minor

a.) On him personally; and b.) On his guardian or, if none, upon his guardian ad litem; or c.) On his father or mother

Upon Insane or Incompetent

a.) On him personally and b.) His legal guardian or, if none, his guardian ad litem.

h.) Proof of Service

1. Personal Service, the return of the server; 2. and the affidavit showing that a copy of the summons and Order for publication were sent by registered mail to the last known address of defendant. Publication, the affidavit of publication by the printer,

References: 1. Civil Procedure, Emiliano L. Gaayo, Rex Printing Co.Inc.,1999 H. Dismissal of Actions 1. Dismissal upon notice by plaintiff; Two-dismissal rule A complaint may be dismissed by the plaintiff by filing a notice of dismissal at any time before summary judgment. Upon such notice being filed, the court shall issue an order confirming the dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a notice operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in a competent court an action based on or including the same claim. (Sec. 1 Rule 17, Feria-Noche, Civil Procedure Annotated 2001) Two-dismissal Rule

If the plaintiff has once dismissed in a competent court an action based on or including the same claim. (Sec. 1 Rule 17, Feria-Noche, Civil Procedure Annotated 2001) 2. Dismissal upon motion by plaintiff; effect on existing counterclaim Except as provided in Sec. 1 Rule 17, a complaint shall not be dismissed at the plaintiffs instance save upon approval of the court and upon such terms and conditions as the court deems proper. (Sec. 1 Rule 17, Feria-Noche, Civil Procedure Annotated 2001) Effect on existing counterclaim If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion for dismissal, the dismissal shall be limited to the complaint. (Sec. 1 Rule 17, Feria-Noche, Civil Procedure Annotated 2001) 3. Dismissal due to the fault of plaintiff Under Sec. 3 Rule 17, the dismissal of the complaint is based on any of the three (3) grounds: 1. The failure of the plaintiff to appear without justifiable cause on the date of the presentation of his evidence. 2. The failure of the plaintiff to prosecute his action for an unreasonable length of time. 3. The failure of the plaintiff to comply with the Rules of Court or any order of the court. (Feria-Noche Annotated 2001) 4. Dismissal of counterclaim, cross-claim or third-party complaint The dismissal of an action in the motion to dismiss under Rule 16 is a dismissal by a defending party. Rule 17 governs the dismissal of an action by plaintiff or claimant or through his fault, which may be affected before or after the issues are joined. (Sec. 4 Rule 17, Handbook on Civil Procedure, Agpalo, 2001) I. Pre-trial 1. Concept of pre-trial A pre-trial is meant t serve as a device to clarify and narrow down the basic issues between the parties, to ascertain the facts relative to those issues and to enable the parties to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent that said trial from being carried on in the dark. (Sec. 2 Rule 18, Handbook on Civil Procedure, Agpalo, 2001) 2. Nature and purpose The pre-trial is mandatory. The court shall consider: a. The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution; b. The simplification of the issues; c. The necessity or desirability of amendments to the pleadings; d. The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof; e. The limitation of the number of witnesses; f. The advisability of a preliminary reference of issues to a commissioner; g. The propriety of rendering judgment on the pleading, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist; h. The advisability or necessity of suspending the proceedings; and i. Such other matters as may aid in the prompt disposition of the action. (Sec. 2 Rule 18, Feria-Noche, Civil Procedure Annotated, 2001)

The fundamental purpose of a pre-trial, aside from affording the parties every opportunity to compromise or settle their differences, is for the court to be appraised f the unsettled issues between the parties and of their respective evidence relative thereto, to the end that it may take corresponding measures that would abbreviate the trial as much as possible and the judge may be able to ascertain the facts with the least observance of technical rules. (Sec. 2 Rule 18, Handbook on Civil Procedure, Agpalo, 2001) 3. Notice of pre-trial The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him. (Sec. 3 Rule 18, Feria-Noche, Civil Procedure Annotated, 2001) 4. Appearance of parties; effect of failure to appear It shall be the duty of the parties and their counsel to appear at the pre-trial. 5. Pre-trial brief; effect of failure to appear Sec. 6 provides that failure to file the pre-trial brief shall have the same effect as failure to appear at pre-trial. This means that if plaintiff fails to submit the pre-trial brief, his complaint may be dismissed or he is non-suited. If the defendant fails to file his pre-trial brief, he may be considered as if in default, and the plaintiff may be authorized to present evidence ex parte against him. (Sec. 5 Rule 18, Handbook on Civil Procedure, 2001)

6. Distinction between pre-trial in civil case and pre-trial in criminal case Pre-trial in criminal cases is only optional the accused and his lawyer have to agree whether to go on a pre-trial or not. In. civil cases, the pre-trial is mandatory no case can reach the trial stage without undergoing pre-trial. (The 1997 Rules on Civil Procedure, 2001 Edition) 7. Alternative Dispute Resolution (ADR) Is a name for several dispute resolution processes and techniques while believed by some to be outside the traditional mainstream of state jurisprudence, have gain acceptance among both the general public and the legal profession. ADR is generally classified into at least three (3) subtypes; 1. Negotiation, where participation is voluntary and there is no third party who either facilitates the resolution process which imposes a resolution; 2. Mediation, where participation is voluntary and there is a third party a mediator who facilitates the resolution but does not impose a resolution on the parties; 3. Arbitration, where participation is ordinarily voluntary, and there is a third party who both facilitates the resolution process and imposes a resolution. (www.yahoo.com) J. Intervention 1. Requisites for intervention 1. The intervenor has a legal interest on the matter under litigation; 2. The intervenor has a legal interest in the success of either of the parties; 3. The intervenor has a legal interest against both; or

4. The intervenor is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof. * (Republic vs. Sandiganbayan, 184 SCRA 382 (1990) Intervention is a proceeding in a suit or an action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adverse to both of them. (Garcia et al v. David, 67 Phil 279) 2. Time to intervene General rule: before or during trial; or at anytime before rendition of final judgment. When intervention allowed even after rendition of judgment: Intervention was allowed even on appeal to indispensable parties. (Falcasantos v. Falcasantos, L-4627 (1952)) Intervention may be allowed after judgment where it is necessary to protect some interest which cannot otherwise be protected, and may be allowed for the purpose of preserving the intervenors right to appeal. (Pinlac v. CA, 410 SCRA 419) 3. Remedy for the denial of motion to intervene If a motion to intervene is denied, the intervenor is no longer entitled to notice; he has no personality anymore because he has not been allowed to intervene. (Macias v. Cruz, 49 SCRA 80 (1973) The remedy for the denial of motion to intervene is to appeal. The proposed intervenor cannot appeal from the decision but only from the order denying intervention. (Saw v CA, 195 SCRA 170) K. Subpoena 1. Subpoena duces tecum - a process by which the court, at the instance of a party, commands a witness who has in his possession or control some document or paper that is pertinent to the issues of a pending controversy, to produce it at the trial. 2. Subpoena ad testificandum - Subpoena to testify. It is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action. 3. Service of subpoena - Service of a subpoena shall be made in the same manner as personal or substituted service of summons. The mode may be personal or substituted service of summons. It authorizes service of subpoena by counsel or their representatives to insure service thereof. 4. Compelling attendance of witnesses; Contempt Consequences if witnesses refuse to appear after he was subpoenaed: 1. A person may ask the court to issue a warrant for his arrest (Sec.8) 2. Declare him in contempt of court for failure to obey the subpoena (Sec. 9) Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.

5. Quashing of subpoena Reasons for Quashing Subpoena duces tecum: It may either be any of the following: a. Unreasonable and oppressive; b. Relevance of books, documents or things do not appear; c. Failure to advance reasonable costs of production thereof. Reasons for Quashing Subpoena ad testificandum: The court may also quash a subpoena ad testificandum on the following grounds a. That the witness is not bound thereby, or b. That the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served. * Motion to quash subpoena should be filed at or before time specified in the subpoena. L. Modes of Discovery 1. Depositions pending action; Depositions before action or pending appeal a. Meaning of deposition - the sworn testimony of a witness taken before trial held out of court

When may deposition be taken: (1) DEPOSITIONS DE BENE ESSE taken for purposes of pending action (Rule 23) (2) DEPOSITIONS IN PERPETUAM REI MEMORIAM taken to perpetuate evidence for purposes of an anticipated action or further proceedings in a case or appeal.(Rule 24) Depositions pending action (Sec.1, Rule 23) a. Taken by leave of court after court obtains jurisdiction over any defendant or property subject of the action b. Taken without leave after an answer has been served c. Upon the instance of any party d. May be deposition upon oral examination or written interrogatories b. Uses; Scope of examination Uses - Any part or all of a deposition which is admissible in evidence may be used against any party who was present or represented during the taking of the deposition or who had notice thereof as follows: (Sec. 4, Rule 23) DEPOSITION OF A witness MAY BE USED BY Any party PURPOSE To contradict or impeach the deponents testimony as a witness For any purpose

Any party, or anyone Any adverse party who deposition was an officer, director, or managing agent of a public or private corporation Of any witness, whether Any party

For any purpose, IF court finds that:

a party or not

a. Witness is dead; b. Witness resides at a distance more than 100 km from place of trial, UNLESS absence procured by party offering the deposition c. Witness is unable to testify because of age, sickness, infirmity, or imprisonment; d. Party offering the deposition has been unable to procure the attendance of the witness by subpoena; OR e. Other exceptional circumstances make it desirable to allow deposition to be used.

party or not Scope - the deponent may be examined regarding any matter, not privileged, which is relevant to the subject of the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. (Sec. 2, Rule 23) Depositions before action (Sec. 1, Rule 24) A person desiring to perpetuate his own testimony or that of another person regarding any matter that may be cognizable in any court of the Phils may file a verified petition in the court of the place of the residence of any expected adverse party, which petition shall be entitled in the name of the petitioner and shall show: a. That petitioner expects to be a party to an action in a court of the Philippines but is presently unable to bring it or cause it to be brought; b. The subject matter of the expected action and his interest therein; c. The facts which he desires to establish by the proposed testimony and his reasons for desiring to perpetuate it; d. The names or description of the persons he expects will be the adverse parties and their addresses so far as known; e. The name and addresses of the persons to be examined and the substance of the testimony which he expects to elicit from each. Use: If deposition to perpetuate testimony is taken under this rule or if not so taken is still admissible in evidence may be used in any action involving the same subject matter subsequent brought in accordance with the provisions of Rule 23. Depositions pending appeal (Sec. 7, Rule 24) If an appeal has been taken from a judgment of a court, the court may allow the taking of depositions of witnesses to perpetuate their testimony for use in the event of further proceedings in the said court. In such case the party who desires to perpetuate the testimony may make a motion in the said court for leave to take the depositions. If the court finds that the perpetuation of the testimony is proper to avoid a failure or delay of justice, it may make an order allowing the depositions to be taken, and thereupon the depositions may be taken and used in the same manner and under the

same conditions as are prescribed in these Rules for depositions taken in pending actions. c. When may objections to admissibility be made Objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying. (Sec. 6, Rule 23) d. When may taking of deposition be terminated or its scope limited At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner, as unreasonably to annoy, embarrass, or oppress the deponent or party. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. (Sec. 18, Rule 23) 2. Written interrogatories to adverse parties a. Consequences of refusal to answer The court, on motion and notice, may: 1. Strike out all or any part of any pleading of that party; or 2. Dismiss the action or proceeding or any part thereof (of that party if plaintiff); or 3. Enter judgment by default against that party (if defendant); or 4. Order that party to pay reasonable expenses incurred by the other party and attorneys fees. If after being directed to answer by the court, he still refuses: i. He may be held in contempt of court (Rule 29. Sec. 2) ii. The court may make such order as are just as those enumerated in Rule 29, Sec. 3 (a) to (d). b. Effect of failure to serve written interrogatories - Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal. 3. Request for Admission a. Implied admission by adverse party Within 15 days, documents requested for admission must be answered under oath, whether admitting or denying my request, otherwise, it shall be deemed admitted. b. Consequences of failure to answer request for admission Failure to answer request for admission is deemed to have been admitted. Henceforth, there will be an implied admission on all the things requested for admission. Section 2 says, each of the matters of which an admission is requested shall be deemed unless you file your answer to the request. Meaning, if you will not answer the request under the law, all the matters which is requested for admission is deemed impliedly admitted. c. Effect of admission

An admission made by a party pursuant to a request for admission is only good for a certain case needing evidence. It cannot be used in any other case or proceeding. It limits therefore the effectivity of an admission. It is only valid for the pending case. Hence, it only serves for purposes of evidence. d. Effect of failure to file and serve request for admission - Unless 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. 4. Production or inspection of documents or things Production and Inspection of Documents or Things vs. Subpoena Duces Tecum PRODN AND INSPECTION SUBPOENA DUCES TECUM Nature a) Order to produce or permit Process requiring a person inspection and copying or to bring with him any books, photographing, by or on behalf documents, or other things of the moving party, of any under his control or designated documents, papers, possession books, etc b) Order a party to permit entry upon designated land or other prop in his possession or ctrl for inspecting, measuring, surveying or photographing property or any designated relevant object or operation thereon Good cause? Needs to show good cause No need to show good cause When it may be Before and/or during trial Only during trial asked When issued Must be issued upon motion Upon request Grounds for quashal No good cause shown Specified grounds for quashing 1. unreasonable and oppressive 2. relevancy of books, documents etc does not appear 3. person fails to advance reasonable cost of production To whom directed Directed only to a party May be directed to nonparty Sanctions Sanctions aside from contempt Failure to obey = contempt (See Rule 29) of court 5. Physical and mental examination of persons Mental or physical exam requires showing of good cause, i.e., specific facts justifying discovery and that the inquiry be relevant to the subject matter of the action or reasonably calculated to lead to the discover of admissible evidence. 6. Consequences of refusal to comply with modes of discovery Refusal to comply with the modes of discovery is tantamount to a contempt of court. The following are the following consequences that may be imposed by the court:

(a)

An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses

or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition; (c) An order 1) striking out pleadings or parts thereof, or 2) staying further proceedings until the order is obeyed, or 3) dismissing the action or proceeding or any part thereof, or 4) rendering a judgment by default against the disobedient party; and
(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party

or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination.

WHAT IS A DEMURRER TO EVIDENCE? (Rule 33 Rules of Court) A demurrer to evidence is an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary produced is insufficient in point of law (whether true or not) to make out his case or sustain the issue. The demurrer challenges the sufficiency of the plaintiff's evidence to sustain a verdict.( Choa vs. Choa, G.R. No. 143376, 26 November 2002)." 1. Ground insufficiency of evidence 2. Effect of denial - the accused may adduce evidence in his defense. 3. Effect of grant case is dismissed 4. Waiver of right to present evidence - once the movants motion to dismiss upon demurrer to evidence is granted, defendant loses his right to have the case remanded for the reception of his evidence, should the appellate court overturns the decision of the lower court. The appellate court will be base its decision only on the plaintiffs evidence. 5. Reference: 2003 San Beda Remedial Law Reviewer DEMURRER TO EVIDENCE IN CIVIL CASE defendant need not ask for leave of court;

if the court finds plaintiffs evidence insufficient, it will grant the demurrer by dismissing the complaint. The judgment of dismissal is appealable by the plaintiff. If plaintiff appeals and judgment is reversed by the appellate court, it will decide the case on the basis of the plaintiffs evidence with the consequence that the defendant already loses his right to present evidence no res judicata in dismissal due to demurrer if court denies demurrer, defendant will present his evidence

DEMURRER TO EVIDENCE IN CRIMINAL CASE leave of court is necessary so that the accused could present his evidence if the demurrer is denied if the court finds the prosecutions evidence insufficient, it will grant the demurrer by rendering judgment acquitting the accused. Judgment of acquittal is not appeallable Otherwise, double jeopardy sets-in

if court denies the demurrer: If demurrer was with leave, accused may present his evidence If the demurrer was without leave, accused can no longer present his evidence and submits the case for decision based on the prosecutions evidence

O. Judgments and Final Orders JUDGMENT- (Rule 36) final consideration and determination by a court of the rights of the parties, upon matters submitted to it in an action or proceeding. It is the result or the dispositive part of the decision while the opinion gives the grounds for the decision. 1. JUDGMENT WITHOUT TRIAL (Rule 36) judgment could be based on judicial compromise, memorandum decision, based on pleadings. No need for witnesses and party-litigants to appear before the court.

2. CONTENTS OF A JUDGMENT all the facts and the law on which it is based. It should contain a dispositive part and should be signed by the judge and filed with the clerk of court. Judgment based on judicial compromise - the provisions and terms are settled and agreed upon by the parties to the action, and which is entered in the record by the consent of the court. Judgment based on memorandum decision - a decision of the appellate court which adopts the findings and the conclusion of the trial court. 3. JUDGMENT ON THE PLEADINGS (Rule 34, Section 1) A judgment on the pleadings must be on motion of the claimant. However, if at the pre-trial the court finds that a judgment on the pleadings is proper, it may render such judgment motu proprio. 4. Summary Judgment (Rule 35) is judgment based on the pleadings, depositions, admissions and affidavits, which judgment is available to both plaintiff/ claimant and defendant. This is only applicable when there is no genuine issue between the parties, i.e. there may be issues but these are irrelevant. The 10-day notice is required before a summary judgment can be rendered. It may be interlocutory or on the merits. (Rule 35, Section 1) Summary Judgment for claimant. - A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof. (Rule 35, Sec. 2) Summary judgment for defending party - A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof. (Rule 35, Section 4) Case not fully adjudicated on motion. If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs sought and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. .. Case not fully adjudicated a partial summary judgment was never intended to be considered a final judgment, as it does not *put+ an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for.[23] The Rules provide for a partial summary judgment as a means to simplify the trial process by allowing the court to focus the trial only on the assailed facts, considering as established those facts which are not in dispute. (PSB vs. Chua, G.R. No. 178899) Form of affidavits and supporting papers ( Certified true copies) (Rule 35, Sec. 5.) - Supporting and opposing affidavits must be made on personal knowledge - State all material facts as would be admissible in evidence - Must show affirmatively that the affiant is competent to testify to the matters stated in the affidavit Affidavits in bad faith (Rule 35, Sec. 6.) - Affidavits presented are in bad faith/ to delay the case - Court will order the offender/ his counsel to o Pay the offended party damages (ie. Reasonable expenses in filing affidavits plus attorneys fees) o Be adjudged guilty of contempt. 5. Judgment on the Pleadings vs. Summary Judgment (Rule 35) JUDGMENT ON THE PLEADINGS SUMMARY JUDGMENT based solely on the pleadings. generally available only to the plaintiff, unless the defendant presents a counterclaim. The answer fails to tender an issue or there is an admission of material allegations. 3-day notice required On the merits based on the pleadings, depositions, admissions and affidavits available to both plaintiff and defendant there is no genuine issue between the parties, i.e. there may be issues but these are irrelevant 10-day notice required May be interlocutory or on the merits

6. Rendition of Judgments and Final Orders (Rule 36, Sec. 1) judgment and final order rendered should be based on the merits of the case in writing prepared & signed by the judge stating clearly& distinctly the facts and law on which it is based filed with the clerk of court 7. Entry of judgment and final order (Rule 36, Sec. 2) Judgment or final order will be entered in the book of entries of judgments by the clerk of court when there is no longer any appeal or motion for new trial or reconsideration filed within the time provided in these Rules The date of finality of the judgment or final order = date of its entry The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment or final order has become final and executory. P. Post Judgment Remedies 1. Motion for Reconsideration It is in writing directed against a judgment or a final order. It is not the motion for reconsideration of an interlocutory order. Grounds (Sec. 1 Rule 37, Rules of Court) a. that the damages awarded are excessive. b. that the evidence is insufficient to justify the decision or final order. c. that the decision or final order is contrary to law. Motion for New Trial It is in writing where the aggrieved party may move the trial court to set aside the judgment or final order and grant a new trial. Grounds (Sec. 1 Rule 37, Rules of Court) a. Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights b. Newly discovered evidence, which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result Pro forma Motion It is one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings. (Marikina Development Corporation vs Flojo, 251 SCRA 87) 1. it was a second motion for reconsideration 2. it did not comply with the rule that the motion must satisfy the findings 3. it failed to substantiate the alleged errors 4. it merely alleged that the decision in question was contrary to law 5. the adverse party was not given notice thereof and conclusions alleged to be contrary to law or not supported by the evidence When to file? A motion for reconsideration or a motion for a new trial of a judgment or a final order is filed within the period of appeal that is within fifteen (15) days after notice to the appelant of the judgment or final order appealed from (Sec. 1 Rule 37, Sec. 2 Rule 40, Sec. 3 Rule 41, Sec. 2 Rule 45, Rules of Court) Where a record on appeal is required, the appelant shall file a notice of appeal and a record on appeal within thirty (30) days from notice of the judgment or final order (Sec. 3 Rule 41, Rules of Court)

A record on appeal shall be required only in special proceedings and other cases of multiple or separate appeals. (Sec. 3 Rule 40, Rules of Court) Denial of the motion; effect If the motion is denied, the movant has a fresh period of fifteen (15) days from receipt or notice of the order denying or dismissing the motion for reconsideration or new trial within which to file a notice of appeal. This applies to Rule 40, Rule 41,Rule 42, Rule 43, and Rule 45, of the Rules of Court. (Neypes vs Court of Appeals GR No. 141524, September 14, 2005) The fresh period rule does not refer to the period within which to appeal from the order denying the motion for reconsideration or new trial but to the period within which to appeal from the judgment itself because an order denying a motion for reconsideration or new trial is not appealable. (Sec. 9 Rule 37, Rules of Court) Grant of the motion; effect Motion for Reconsideration If the court grants the motion, it may amend such judgment or final order accordingly. (Sec. 3 Rule 37, Rules of Court) Motion for New Trial If the court grants the motion, the original judgment or final order shall be vacated, and the action shall stand for trial de novo. (Sec. 6 Rule 37, Rules of Court) Remedy when motion is denied The remedy when motion is denied is to appeal from the judgment or final order itself. (Sec. 9 Rule 37, Rules of Court) 2. Appeals in General The right to appeal is not part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with the provisions of law. (Unified Field Sea Watchman and Checkers Agency, GR No. 143527, December 6, 2006) Judgments and final orders subject to appeal An appeal may be taken only from judgments or final orders that completely disposes of the case. (Sec. 1 Rule 41, Rules of Court) Matters not appealable a. An order denying a petition for relief or any similar motion seeking relief from judgment. b. An interlocutory order. c. An order disallowing or dismissing an appeal. (Heirs of Gaudiano vs Benemerito, GR No. 174247, February 21, 2007) d. An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent. e. An order of execution. f. A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims, and third -party complaints, while the main case is pending, unless the court allows an appeal therefrom. g. An order dismissing an action without prejudice. Remedy against judgments and orders which are not appealable The aggrieved party may file the appropriate special civil action under Rule 65 (Sec. 1 Rule 41, Rules of Court)

An aggrieved party may no longer assail an order denying a motion for reconsideration or new trial by way of Rule 65. The proper remedy is to appeal from judgment. (Sec. 9 Rule 37, Rules of Court) Modes of appeal 1. Ordinary appeal where judgment was rendered by the court in the exercise of its original jurisdiction and is taken to the Court of Appeals on question of fact or mixed question of fact and law. (governed by Rule 41, Rules of Court) 2. Petition for review where judgment was rendered by the court in the exercise of its appealate jurisdiction and is brought to the Court of Appeals on question of fact, question of law or mixed questions of law and fact. (governed by Rule 42, Rules of Court) 3. Petition for review on certiorari the appeal is brought to the Supreme Court from the decision of the Regional Trial Court in the exercise of its original jurisdiction and only on questions of law. (Quezon City vs ABS-CBN Broadcasting Corp. GR No. 166408, October 6, 2008) Issues that may be raised on appeal In his assignment of errors, he may include any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. (Sec. 15 Rule 44, Rules of Court) Period of appeal An appeal may be taken within fifteen (15) days after notice to the appellant of the judgment or final order appealed from. (Sec. 2 Rule 40, Rules of Court) Perfection of appeal A party's appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. (Sec. 4 Rule 40 in relation to Sec. 9, Rule 41, Rules of Court) A party's appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time. (Sec. 4 Rule 40 in relation to Sec. 9, Rule 41, Rules of Court) Appeal from judgment or final order of the MTC An appeal from a judgment or final order of a MTC may be taken to the RTC exercising jurisdiction over the area to which the former pertains. (Sec. 1 Rule 40, Rules of Court) Appeal from judgments and final order of the RTC Rule 41, SEC. 2. Modes of appeal. (a) Ordinary appeal.The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or these Rules so require. In such cases, the record -on appeal shall be filed and served in like manner. (b) Petition for review.The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.

(c) Appeal by certiorari.In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45. (n) Appeal from judgments and final orders of the CA (Rule 45, Section 1) A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. Review of final judgments or final orders from the COA A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided. (Rule 64, Section 2, Rules of Court) Review of final judgments or final orders from the COMELEC - Unless otherwise provided by law, or by any specific provisions in these Rules, any decision, order or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty (30) days from its promulgation (Rule 37, Section 1 COMELEC RULES OF PROCEDURE). Review of final judgment or final orders from the CSC, CTA, and other Quasi Judicial Bodies (Rule 43, Sections 3-4 Rules of Court & Rule 9 of the 1999 INTERNAL RULES OF THE COURT OF APPEALS (IRCA)) issues that involve involves questions of fact, of law, or mixed questions of fact and law that are decided by the CSC, CTA and other quasi judicial bodies may be taken to the Court of Appeals within 15 days from notice of the award, judgment, final order or resolution or from the date of last publication (if required by law for effectivity), or denial of petitioners motion of new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.

Review of final judgment or final orders from the Ombudsman (RA 7975, Section 3) Decisions and final orders of the Sandiganbayan shall be appealable to the Supreme Court by petition for review on certiorari raising pure questions of law in accordance with Rule 45 of the Rules of Court. Whenever, in any case decided by the Sandiganbayan, the penalty of reclusion perpetua or higher is imposed, the decision shall be appealable to the Supreme Court in the manner prescribed in the Rules of Court. In case the penalty imposed is death, review by the Supreme Court shall be automatic, whether or not the accused filed an appeal. (RA 7975, Section 4) - The procedure prescribed in Batas Pambansa Blg. 129, as well as the implementing rules that the Supreme Court has promulgated and may hereafter promulgate, relative to appeals/petitions for review to the Court of Appeals shall apply to appeals and petitions for review filed with the Sandiganbayan. In all cases elevated to the Sandiganbayan and from the Sandiganbayan to the Supreme Court, the office of the Ombudsman, through its special prosecutor, shall represent the people of the Philippines except in cases filed pursuant to Executive Orders Nos. 1, 2, 14 and 14-A. Review of final judgments or final orders from the NLRC - Judgments and final orders or resolutions of the NLRC are reviewable by the COURT OF APPEALS in an original action for certiorari under Rule 65 (St. Martin Funeral Home vs. NLRC, Sept. 16, 1998). Same as Rule 42 except that judgment is not stayed unless the CA directs otherwise. 3. RELIEF FROM JUDGMENTS, ORDERS AND OTHER PROCEEDINGS a. grounds for availing of the remedy - FAME (Fraud, accident, mistake, excusable negligence) (Rule 38, Sec 2) b. time to file petition (Rule 38, Sec. 3) A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60) days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken

c. contents of petition the petition for relief from judgment/ order/ proceeding must attach or contain affidavits showing the grounds (FAME) relied upon, and the facts constituting the petitioner's good and substantial cause of action or defense, as the case may be (Rule 38, Sec 3) 4. ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS- (Rule 47, Sec. 1) a remedy in law independent of the case where the judgment sought to be annulled was rendered and may be availed of though the judgment has been executed. Grounds for Annulment of Judgments/ Final Orders: 1. extrinsic fraud or collateral fraud 2. lack of jurisdiction EXTRINSIC FRAUD Period of filing action Effect of judgment 4 years from discovery Trial court will try the case LACK OF JURISDICTION Before it is barred by laches or estoppel Original action may be refiled

5. COLLATERAL ATTACK OF JUDGMENTS (Rule 38 & Springfield dev. Corp vs. RTC Misamis Orienta Br 40 and DARAB, G.R. NO. 142628) may be had to annul a judgment that is void upon its face or void by virtue of its own recitals. Q. Execution, satisfaction and effect of judgments (Rule 39) 1. Difference between finality of judgment for purpose of appeal and finality of judgment for purpose of execution FINALITY OF JUDGMENT FOR PURPOSES OF APPEAL becomes final and executory by operation of law, not by judicial declaration what is sought to be reviewed is the decision if court denies demurrer, defendant will present his evidence FINALITY OF JUDGMENT FOR PURPOSES OF EXECUTION becomes final and executory by operation of law, not by judicial declaration what is sought to be reviewed is the manner of execution if court denies the demurrer: If demurrer was with leave, accused may present his evidence If the demurrer was without leave, accused can no longer present his evidence and submits the case for decision based on the prosecutions evidence

2. When execution shall issue (Rule 39) a. execution as a matter of right (Rule 39, Section 1)- on motion, upon a judgment or order that disposes of the action or proceeding upon the expiration of the period to appeal therefrom, if no appeal has been duly perfected. If the appeal has been duly perfected and finally resolved, the execution may forthwith be applied for in the court of origin, on motion of the judgment obligee, submitting therewith certified true copies of the judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with notice to the adverse party. The appellate court may, on motion in the same case, when the interest of justice so requires, direct the court of origin to issue the writ of examination. b. discretionary execution - may only issue upon good reasons to be stated in a special order after due hearing. (Rule 39, Section 2) In Manacop v. Equitable Banking Corporation, SC held that discretionary execution of appealed judgments may be allowed upon concurrence of the following requisites: (a) there must be a motion by the prevailing party with notice to the adverse party; (b) there must be a good reason for execution pending appeal; and (c) the good reason must be stated in a special order. Good reasons - consist of compelling circumstances justifying immediate execution lest judgment becomes illusory, or the prevailing party after the lapse of time be unable to enjoy it, considering the tactics of the adverse party who may have apparently no cause but to delay. Such reasons must constitute superior circumstances demanding urgency which will outweigh the injury or damages should the losing party secure a reversal of the judgment.( Villamor v. National Power Corporation, G.R. No. 146735, October 25, 2004)

3. How a judgment is executed a. Execution by motion or by independent action Section 6. Execution By Motion Or Independent Action. Judgment for support does not become dormant, thus it can always be executed by motion. 5-year period may be extended by the conduct of judgment debtor. Execution BY MOTION means that the prevailing party shall ask the court to issue a writ of execution by simply filing a motion in the same case. Execution BY INDEPENDENT ACTION - should the 5-year period, lapse, the (dormant judgment can be awakened by the filing of another civil action known as revival of judgment. But this must be filed before it is barred by the statute of limitations. Revived judgment - a new judgment thus another 5/10-year period to execute and revive is given to the party. b. Issuance and contents of a writ of execution (Rule 39, Section 8) The writ of execution shall: (1) issue in the name of the Republic of the Philippines from the court which granted the motion; (2) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and (3) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its terms, in the manner hereinafter provided: (a) If the execution be against the property of the judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor; (b) If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such property; (c) If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution. (d) If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and (e) In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movant. c. Execution of judgments for money: IF IMMEDIATE PAYMENT ON DEMAND (Rule 39, Section 9(a)) STEPS : 1.) The sheriff must demand payment from the obligor; 2.)The obligor can pay in cash, certified bank check payable to the judgment obligee (creditor) or any other form of payment acceptable to the latter. 3.) The payment shall go to the obligee; 4.) The lawful fees shall be paid to the executing sheriff who shall turn over the said amount within the same day to the clerk of court of the court that issued the writ. IF PLAINTIFF IS NOT AROUND (obligee) payment is made to the sheriff, who is supposed to endorse it to the clerk of court. Clerk of court, in turn will look for the obligee to remit the money. This is usually done outside of the locality ex: decision is in Cagayan de Oro but will be enforced in Zamboanga City. (but clerk to clerk)

IF SATISFACTION BY LEVY usually done because debtor has no cash. In this case, sheriff shall levy upon the properties of the judgment obligor not otherwise exempt from execution. (sequence of levying, personal properties first, then real properties) d. Execution of judgments for specific acts (Rule 39, Section 10) (a)Conveyance, delivery of deeds, or other specific acts; vesting title. Examples: An action for reconveyance of property where you are asking the defendant, a title owner, to convey to you his property. The property will be held in trust or that the title be in your name instead of his; Pacto de retro. I sold to you my land and I am repurchasing it but you refuse to execute a deed of sale returning the property to me (b)Sale of real or personal property. - If the judgment be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment. (8 [c] a) (Ex. Action for termination of co-ownership property will be sold and proceeds will be distributed among the co-owners). (c)Delivery or restitution of real property. - The officer shall demand of the person against whom the judgment for the delivery or restitution of real property is rendered and all persons claiming rights under him to peaceably vacate the property within three (3) working days, and restore possession thereof to the judgment obligee; otherwise, the officer shall oust all such persons therefrom with the assistance, if necessary, or appropriate peace officers, and employing such means as may be reasonably necessary to retake possession, and place the judgment obligee in possession of such property. Any costs, damages, rents or profits awarded by the judgment shall be satisfied in the same manner as a judgment for money. (13a) N.B: this is applicable to actions for forcible entry, unlawful detainer, accion publiciana (e) Delivery of personal property. related to replevin/ action to recover personal property. Note: that in execution of judgments for special acts (reference: 2003 San Beda Remedial Law Memory Aid) : If party REFUSES TO VACATE PROPERTY, remedy is NOT contempt. The Sheriff must oust the party. But if demolition is involved, there must be a special order. If party REFUSES TO DELIVER, sheriff will take possession and deliver it to winning party. When the party REFUSES TO COMPLY, court can appoint some other person at the expense of the disobedient party and the act done shall have the same effect as if the required party performed it, the disobedient party incurs no liability for contempt. E. Execution of special judgments (Rule 39, Section 11). When judgment requires the performance of any act other than for money and delivery of property. The writ of execution shall be served upon the party required to obey the same and such party may be punished for contempt if he disobeys. A Certified true copy of the judgment must be attached to the writ of execution. SPECIAL JUDGMENT is a judgment which requires the defendant to perform an act other than payment of money or delivery of property. It refers to a specific act which a party or person must personally do because his personal qualifications and circumstances have been taken into consideration. F. Effect of levy on third persons (Rule 39, Section 12) The levy on execution shall create a lien in favor of the judgment obligee over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing. 4. Properties exempt from execution: (Rule 39, Sec. 13) Judgment obligors a. family home, homestead/ land used in connection therewith b. ordinary tools and implements personally used by him in his trade, employment, or livelihood c. three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation d. his necessary clothing and articles for ordinary personal use, excluding jewelry; e. Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding one hundred thousand pesos. f. Provisions for individual or family use sufficient for four months

g. The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professional, not exceeding three hundred thousand (P300,000.00) pesos in value h. One fishing boat and accessories not exceeding the total value of one hundred thousand (P100,000.00) pesos owned by a fisherman and by the lawful use of which he earns his livelihood i. So much of the salaries, wages, or earnings of the judgment obligor for his personal services within the four months preceding the levy as are necessary for the support of his family j. Lettered gravestones k. Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance l. The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the Government m. others exempted by law (eg. CARP land acquired by tenant, property pursuant to free patent, SSS benefits) 5. Proceedings where property is claimed by 3rd persons: (Rule 39, Sec. 16) 3rd person = not the judgment obligor/ agent a. He makes affidavit of his title to such claim or right to the position of such property (stating the grounds) b. He serves affidavit upon the officer making the levy and copy of the same to the judgment obligee o Officer is not bound to keep property unless judgment obligee (on demand of officer) files a bond approved by the court to indemnify 3rd party claimant (sum not less than value of property levied on) o In case of disagreement as to value, court issuing the writ of execution determines the final value. o No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. o The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. REMEDIES OF THIRD PARTY CLAIMANT (reference: 2003 San Beda Remedial Law Reviewer): 1. Summary hearing before the court which authorized the execution; 2. TERCERIA or third party claim filed with the sheriff; 3. Action for damages on the bond posted by judgment creditors; or 4. Independent reinvidicatory action The remedies are cumulative and may be resorted to by third party claimant 6. Rules on Redemption

5. Receivership a. Cases when receiver may be appointed (Sec. 1, Rule 59) 1. the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, or materially injured unless a receiver be appointed to administer and preserve it; 2. in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; 3. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; 4. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.

b. Requisites 1. A verified application must be filed by the party applying for the appointment of a receiver. 2. The applicant must have an interest in the property or funds subject of the action. 3. The applicant must show that the property or funds is in danger of being lost, wasted or dissipated. 4. The application must be with notice and must be set for hearing. 5. Both the applicant for the receivership and the receiver appointed must file separate bonds.

c. Requirements before issuance of an Order The court shall require the applicant to post a bond in favor of the adverse party, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause: the court may, at any time after the appointment, require additional bond as further security for damages. (Sec. 2, Rule 59)

d. General powers of a receiver (Sec. 6, Rule 59) to bring and defend, in such capacity, actions in his own name to take and keep possession of the property in controversy to receive rents to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver to compound for and compromise the same to make transfer to pay outstanding debts to divide the money and other property that shall remain among the persons legally entitled to receive the same to do such acts respecting the property as the court may authorize. However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. No action may be filed by or against a receiver without leave of the court which appointed him.

e. Two (2) kinds of bonds (Sec. 2 and Sec. 4, Rule 59) 1. Applicants Bond filed by the applicant for receivership which shall answer for all damages that the adverse party may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause. 2. Receivers Bond filed by the appointed receiver to answer for damages suffered by the adverse party by reason of the failure of the receiver to discharge his duties faithfully or to obey the orders of the court. f. Termination of receivership Whenever the court, motu propio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or appointed, as justice requires. (Sec. 8, Rule 59) 6. Replevin a. When may writ be issued

Delivery of personal property(or replevin) as a provisional remedy consists in the delivery, by order of the court, of a personal property by the defendant to the plaintiff, who shall give a bond to assure the return thereof of the payment of damages to the defendant if the plaintiffs action to recover possession of the property fails, in order to protect the plaintiffs right of possession of said property, or prevent the defendant from damaging, destroying or disposing of the same during the pendency of the suit.

b. Requisites 1. That the principal relief sought in the action is the recovery of possession of personal property; 2. That the defendant in the action is in the actual or constructive possession of the personal property involved; 3. That the subject of the action is a personal property capable of manual delivery; 4. That the subject property is not in custodia legis, as where is it under attachment or was seized under a search warrant or distrained for tax assessment.

c. Affidavit and bond; Redelivery Bond (Sec. 2, Rule 60) The applicant for recovery of possession of personal property must show by his affidavit or that of some other person who personally knows the facts, to wit: 1. That the applicant is the owner of the property claimed; 2. That the property is wrongfully detained by the adverse party; 3. That the property has not been distrained or placed in custodia legis, as where is it under attachment, or was seized under a search warrant or distrained for tax assessment; and 4. The actual market value of the property Redelivery Bond, which is double the value of the property, must be posted by the applicant for the return of the property and for payment to the adverse party of such sum as he may recover from the applicant in the action.

d. Sheriffs duty in the implementation of the writ; when property is claimed by third party Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession.(Sec. 4, Rule 60) The sheriff shall then take the property and keep it in a secure place and wait for five(5) days for the adverse party to get the property back by objecting to the sufficiency of the bond and posting a redelivery bond. If such party makes no move to have the property back, the sheriff shall deliver the property to the applicant. (Sec. 6, Rule 60) If the property taken is claimed by a third person, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin. In case of disagreement as to such value, the court shall determine the same. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefore is filed within one hundred twenty (120) days from the date of the filing of the bond. The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third-party claimant if such bond shall be filed. (Sec. 7, Rule 60)

5. Receivership

a. Cases when receiver may be appointed (Sec. 1, Rule 59) 5. the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, or materially injured unless a receiver be appointed to administer and preserve it; 6. in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; 7. After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; 8. Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.

b. Requisites 1. A verified application must be filed by the party applying for the appointment of a receiver. 2. The applicant must have an interest in the property or funds subject of the action. 3. The applicant must show that the property or funds is in danger of being lost, wasted or dissipated. 4. The application must be with notice and must be set for hearing. 5. Both the applicant for the receivership and the receiver appointed must file separate bonds.

c. Requirements before issuance of an Order The court shall require the applicant to post a bond in favor of the adverse party, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause: the court may, at any time after the appointment, require additional bond as further security for damages. (Sec. 2, Rule 59)

d. General powers of a receiver (Sec. 6, Rule 59) to bring and defend, in such capacity, actions in his own name to take and keep possession of the property in controversy to receive rents to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver to compound for and compromise the same to make transfer to pay outstanding debts to divide the money and other property that shall remain among the persons legally entitled to receive the same to do such acts respecting the property as the court may authorize. However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. No action may be filed by or against a receiver without leave of the court which appointed him.

e. Two (2) kinds of bonds (Sec. 2 and Sec. 4, Rule 59) 3. Applicants Bond filed by the applicant for receivership which shall answer for all damages that the adverse party may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause.

4. Receivers Bond filed by the appointed receiver to answer for damages suffered by the adverse party by reason of the failure of the receiver to discharge his duties faithfully or to obey the orders of the court.

f. Termination of receivership Whenever the court, motu propio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or appointed, as justice requires. (Sec. 8, Rule 59) Rule 42

PETITION FOR REVIEW FROM THE REGIONAL TRIAL COURTS

TO THE COURT OF APPEALS What are the modes of appeal from RTC to the CA? A: Its either ORDINARY APPEAL (Rule 41) or PETITION FOR REVIEW (Rule 42). Rule 41 refers to an ordinary appeal from the RTC to the CA notice of appeal. Here, the RTC rendered a decision pursuant to its ORIGINAL JURISDICTION. Under Section 1, a petition for review under Rule 42 must be VERIFIED. Where will you file your petition for review? A: You file it directly with the CA. Do not file it with the trial court. In Rule 41, where the appeal is deemed perfected by simply filing a notice of appeal, you file your notice of appeal with the RTC. Do not file it with the CA. But in Rule 42, where the appeal is by petition for review, you file your petition directly with the CA. Do not file it with the RTC. Not only that. Of course, you have to pay the docket and lawful fees plus P500 for costs. And you must furnish the RTC and the adverse party with a copy of the petition. That is a new requirement. What is the period to file a petition for review ? A: The period to file a petition for review is 15 days from receipt of the RTC judgment or from the order denying the motion for reconsideration. What is the difference in period to file between Rule 41 and Rule 42? A: In Rule 41, if your motion for reconsideration is denied, you can still appeal within the remaining balance of the 15-day period. In Rule 42, the 15-day period starts all over again because the law says or of the denial. So, another fresh 15 days. This because it is more difficult to prepare a petition for review. Under Section 1, is the 15-day period to file petition for review extendible? A: Under Rule 41, the 15-day period to file notice of appeal is not extendible no exceptions. But in Rule 42, the 15-day period to file petition for review is EXTENDIBLE according to the last sentence of Section 1, provided you pay your docket and other lawful fees, the CA will grant additional 15 days within which to file a petition for review.

Where will you file your motion for extension of time to file petition for review? A: You file your motion for extension to the CA. The CA itself will grant the extension. How many more days can the CA grant?

A: The CA may grant another 15 days and no further extension can be granted except for the most compelling reasons. So, original extension is 15 days, and a possible extension of 15 days = total 30 days. When you file a petition for review from the RTC to the CA, is the CA obliged to entertain the petition? A: No, this is discretionary under Section 6. The CA may or may not give due course to the petition unlike in ordinary appeal. Yan ang kaibahan ng ordinary appeal and petition for review. What happens when the petition for review is given due course? A: The parties will be required to submit their respective memoranda. Does the RTC have the power to act despite the fact that the petition for review is already before the CA? Suppose I lost in the MTC, and I also lost on appeal in the RTC. I file a petition for review. What happens to the decision? Can the decision be enforced? A: NO, it cannot be enforced yet because it is not yet final. We still have to wait for the appeal to be dismissed or to be entertained and denied later. Under paragraph [b], the appeal shall stay the judgment or final order UNLESS the CA, the law or these rules should provide otherwise. Also, based on the opening clause of paragraph [b], except in civil cases provided in the Rules on Summary Procedure, any part thereafter appealed to the CA will not stop the implementation of the RTC decision. Under Section 21 of the Summary Rules, when a case is started in the MTC under the Summary Procedure, and appealed to the RTC and decided by the RTC, the decision becomes immediately executory. Even if we file a petition for review, it is executory. The only way to stop the RTC from enforcing that judgment is to get a TRO or a writ of preliminary injunction from the CA. That is the rule. References: Rules of Court, 2009 Edition; Remedial Law Reviewer by Dean Iigo Rule 43

APPEALS FROM THE COURT OF TAX APPEALS AND

QUASI-JUDICIAL AGENCIES TO THE COURT OF APPEALS Rule 43 governs Appeals from the Court of Tax Appeals and Quasi-Judicial Agencies to the Court of Appeals. Take note that under Section 9 of BP 129, the CA has the exclusive appellate jurisdiction to review decisions of all RTC and Quasi-Judicial Bodies, and Rule 43 is the governing rule on appeals from quasi-judicial bodies. So, before this, appeal to the CA of Tax cases is supposed to be to the SC. Now it is reverted to the CA, and also quasi-judicial agencies. What was the prior law? It is Revised Administrative Circular No. 1-95, which was promulgated on January 1, 1995. Now it is Rule 43 the circular was actually quoted here verbatim. So, you can no longer go to the SC, even on pure questions of law, ha! Decisions of quasi-judicial agencies must pass first to the CA even on pure questions of law. Now what are these quasi-judicial bodies? They are enumerated in Section 1:
Section 1. Scope. This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments,

Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (n)

Sec. 2. Cases not covered. This Rule shall not apply to judgments or final orders issued under the Labor Code of the Philippines. (n)

Section 2 refers to decisions of NLRC and the Secretary of Labor. Their decisions can be brought directly to the SC by way of petition for Certiorari under Rule 65, not by appeal (Rule 43).
Sec. 3. Where to appeal. An appeal under this Rule may be taken to the Court of Appeals within the period and in the manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of fact and law. (n) Sec. 4. Period of appeal. The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioners motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (n) Sec. 5. How appeal taken. Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court or agency a quo. The original copy of the petition intended for the Court of Appeals shall be indicated as such by the petitioner. Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of Appeals the docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption from payment of docketing and other lawful fees and the deposit for costs may be granted by the Court of Appeals upon a verified motion setting forth valid grounds therefor. If the Court of Appeals denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit for costs within fifteen (15) days from notice of the denial. (n) Sec. 6. Contents of the petition. The petition for review shall (a) state the full names of the parties to the case, without impleading the court or agencies either as petitioners or respondents; (b) contain a concise statement of the facts and issues involved and the grounds relied upon for the review; (c) be accompanied by a clearly legible duplicate original or a certified true copy of the award, judgment, final order or resolution appealed from, together with certified true copies of such material portions of the record referred to therein and other supporting papers; and (d) contain a sworn certification against forum shopping as provided in the last paragraph of section 2, Rule 42. The petition shall state the specific material dates showing that it was filed within the period fixed herein. (2a) Sec. 7. Effect of failure to comply with requirements. The failure of the petitioner to comply with any of the foregoing requirements regarding the payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition, and the contents of and the documents which should accompany the petition shall be sufficient ground for the dismissal thereof. (n) Sec. 8. Action on the petition. The Court of Appeals may require the respondent to file a comment on the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (6a) Sec. 9. Contents of comment. The comment shall be filed within ten (10) days from notice in seven (7) legible copies and accompanied by clearly legible certified true copies of such material portions of the record referred to therein together with other supporting papers. The comment shall (a) point out insufficiencies or inaccuracies in petitioners statement of facts and issues; and (b) state the reasons why the petition should be denied or dismissed. A copy thereof shall be served on the petitioner, and proof of such service shall be filed with the Court of Appeals. (9a)

Sec. 10. Due course. If upon the filing of the comment or such other pleadings or documents as may be required or allowed by the Court of Appeals or upon the expiration of the period for the filing thereof, and on the basis of the petition or the records the Court of Appeals finds prima facie that the court or agency concerned has committed errors of fact or law that would warrant reversal or modification of the award, judgment, final order or resolution sought to be reviewed, it may give due course to the petition; otherwise, it shall dismiss the same. The findings of fact of the court or agency concerned, when supported by substantial evidence, shall be binding on the Court of Appeals. (n) Sec. 11. Transmittal of record. Within fifteen (15) days from notice that the petition has been given due course, the Court of Appeals may require the court or agency concerned to transmit the original or a legible certified true copy of the entire record of the proceeding under review. The record to be transmitted may be abridged by agreement of all parties to the proceeding. The Court of Appeals may require or permit subsequent correction of or addition to the record. (8a) Sec. 12. Effect of appeal. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just. (10a) Sec. 13. Submission for decision. If the petition is given due course, the Court of Appeals may set the case for oral argument or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case shall be deemed submitted for decision upon the filing of the last pleading or memorandum required by these Rules or by the Court of Appeals. (n)

References: Rules of Court, 2009 Edition; Remedial Law Reviewer by Dean Iigo

Rule 44 - 46 ORDINARY APPEAL Subject of Appeal This mode of appeal is availed of in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction.

How to Appeal? A: An ordinary appeal is taken by a filing of a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof to the adverse party (Sec. 2{A}, Rule 41 Rules of Court).No record on appeal is required. A record on appeal is required however, in ( a)special proceedings, and (b) other cases of multiple or separate appeals in such cases the record on appeal shall be filed and serve in the like manner. Where both parties appellants, they may file a joint record on appeal within thirty (30) days from the notice of the judgment or final order, or with the time fixed by the court (Sec.9, Rule 41, Rules of Court). 2. The notice of appeal shall a) indicate the parties to the appeal, b ) specify the judgment or final order or part thereof appealed from, c) specify the court to which the appeal is being taken, and d) state the material dates showing the timeless of the appeal (Sec. 5,Rules of Court).If the court disallowance the notice of appeal it signifies the disallowance of the appeal itself. 3. The appellee, within five (5) days from the receipt of the copy of the record on appeal, may file his objection thereto. If no objection is filed, the court may approve the record on appeal as presented. However, the court may upon it own motion or upon the motion of the appellee, order the amendment of the records by including any omitted matters which are deemed essential to the determination of the issue of the law or the fact involved in the appeal. If the

trial court order of the amendment of the record on appeal, the appellant shall redraft the record by including therein such matters as may be required by the court. Compliance with his order shall be made within ten (10) days from the receipt thereof. The appellant shall then submit the redrafted record for approval, with the notice to the appellee, in like manner as the original draft (Sec. 7, Rules of Court). When to Appeal? A: As a general rule. The appeal shall be taken within fifteen (15) days from the notice of judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record of appeal within (30) days from the notice of the judgment or final order. These periods are however, interrupted by a timely motion for new trial or reconsideration. It should be remembered that the rules does not allow a motion for extension of time to the file a motion for new trial or reconsideration. (Sec 7, Rule 41 Rules of Court). When Appeal is perfected? A: A partys appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. A partys appeal by the record of appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the appeal filed in the due time(Sec. 9,Rule 41,Rules of Court). It must be noted that the filing of the notice of appeal of the approval of the record on appeal perfects the appeal as to the particular appellant only because the appeal may not yet be perfected as to the others. Sec. 15 Question that may raised on appeal. Whether or not the appellant has filed a motion for the new trial in the court below, he may include in his assignment of errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties. Issues to be raised on appeal The appeal can raised only question of law or fact that were raised in the court below, and are within the issue framed by the parties thereon. REFERENCE: (Riano, W.B., Fundamentals of Civil Procedure, 2003 1st Ed.)
Rule 47 ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND RESOLUTIONS
Section 1. Coverage. This Rule shall govern the annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. (n)

Well of course the remedy of new trial under Rule 37 must be availed of before the judgment or order becomes final and executory. Also, the remedy of appeal must also be availed before the judgment or order becomes final and executory. In petition for relief under Rule 38, although the judgment or order is already final and executory, it must be done still within 60 days and 6 months. Suppose all the abovementioned remedies have lapsed, is there a remedy left? A: Section I says YES. There is annulment of judgment but only on limited grounds. Now what are the grounds for annulment of judgment? Section 2:

Sec. 2. Grounds for annulment. The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief. (n)

What are the grounds for annulment of judgment under Section 2? A: The grounds recognized by law for annulment of judgment are the only two (2): 1.) The judgment was secured through extrinsic fraud; or Extrinsic fraud should not be a valid ground if availed of, or could have been availed of, in a motion for new trial or petition for relief. 2.) The judgment is void for lack of jurisdiction.

First Ground: EXTRINSIC FRAUD

How do we describe the remedy of annulment of judgment? A: Annulment of judgment is described briefly as a remedy against a judgment which is already final and executory when the remedy of appeal and new trial is already lost. Now what is meant by extrinsic fraud? A: We already discussed this. Fraud, to be a ground for nullity of a judgment, must be extrinsic that fraud done by the adverse party which prevented a party from having a trial or from presenting his case fully. Therefore, intrinsic fraud is not a ground for new trial. It is not a ground for petition for relief. And it is not a ground for annulment. INTRINSIC FRAUD is that fraud which was an issue in the litigation such as perjury, false testimony, concealment of evidentiary facts, but did not prevent you from presenting your case. That is not a ground for annulment of judgment. So take note of that principle. How do you attack a judgment which is void? A: It depends: a.) when the judgment is null and void on its very face, the judgment may be attacked: 1.) DIRECTLY; or 2.) COLLATERALLY; b.) when the nullity is not apparent on the face of the judgment, the judgment can be attacked only be DIRECTLY attacked. What is a COLLATERAL ATTACK? A: Meaning, there is no need for me to file a case but I can invoke its nullity anytime because a judgment which is void on its very face can be attacked at anytime, in any manner anywhere. What is a DIRECT ATTACK? A: By direct attack means you must file an action to declare its nullity. So there must be a case for its annulment. Again, when the judgment is null and void on its face, (1) you may file a direct action to annul it under Rule 47. Or, (2) it can also be attacked collaterally, a direct attack is not necessary. A collateral attack will suffice.

SUMMARY: Possible remedies of defendant declared in DEFAULT: 1.) Rule 9, Section 3 [b] Motion to lift Order of Default, there is still no judgment; ground: FAME; 2.) Rule 37 Motion for new trial, judgment not yet final; Ground: FAME; 3.) Rule 38 Petition for relief within 60 days and 6 months, judgment is already final; ground: FAME; 4.) Rule 41 Appeal within 15 days; ground: Default judgment is contrary to law or evidence; 5.) Rule 47 Annulment of judgment; Ground: Extrinsic Fraud; 6.) Rule 65 Certiorari; ground: Lack or excess of jurisdiction or grave abuse of discretion What is the period to file an action for annulment on the ground of extrinsic fraud? A: Section 3:
Sec. 3. Period for filing action. If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppel. (n)

What happens if the judgment is annulled? Can the plaintiff re-file the case? A: YES, because it is as if there was no judgment. Section 7:
Sec. 7. Effect of judgment. A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refiled in the proper court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein. (n)

So if the judgment is set aside on the ground of extrinsic fraud, the action can be refiled. The court may, on motion, order the trial court to try the case as if a timely motions for the trial had been granted therein. That is similar to Rule 38, Section 6. Remember when the court grants a petition for relief, the case will be tried all over again as if a timely motion for new trial has been filed. What happens if by the time you re-file the case the prescriptive period has already lapsed? A: As a general rule, while the action for annulment is pending, the prescriptive period for filing is interrupted. That is Section 8:
Sec. 8. Suspension of prescriptive period. The prescriptive period for the refiling of the aforesaid original action shall be deemed suspended from the filing of such original action until the finality of the judgment of annulment. However, the prescriptive period shall not be suspended where the extrinsic fraud is attributable to the plaintiff in the original action. (n)

What happens if a judgment is annulled and it was earlier executed? A: Section 9:

Sec. 9. Relief available. The judgment of annulment may include the award of damages, attorneys fees and other relief. If the questioned judgment or final order or resolution had already been executed, the court may issue such orders of restitution or other relief as justice and equity may warrant under the circumstances. (n)

Under Section 9, the court may issue order of restitution or other reliefs as justice and equity may warrant. That is similar to Rule 39, Section 5 in case of execution pending appeal and the appealed judgment is reversed, the court will now order mutual restitution pursuant to Rule 39, Section 5.
Sec. 10. Annulment of judgments or final orders of Municipal Trial Courts. An action to annul a judgment or final order of a Municipal Trial Court shall be filed in the Regional Trial Court having jurisdiction over

the former. It shall be treated as an ordinary civil action and sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto. (n)

Rule 48

PRELIMINARY CONFERENCE
Section 1. Preliminary conference. At any time during the pendency of a case, the court may call the parties and their counsel to a preliminary conference: (a) To consider the possibility of an amicable settlement, except when the case is not allowed by law to be compromised; (b) To define, simplify and clarify the issues for determination; (c) To formulate stipulations of facts and admissions of documentary exhibits, limit the number of witnesses to be presented in cases falling within the original jurisdiction of the court, or those within its appellate jurisdiction where a motion for new trial is granted on the ground of newly discovered evidence; and (d) To take up such other matters which may aid the court in the prompt disposition of the case. (n) Sec. 2. Record of the conference. The proceedings at such conference shall be recorded and, upon the conclusion thereof, a resolution shall be issued embodying all the actions taken therein, the stipulations and admissions made, and the issues defined. (n) Sec. 3. Binding effect of the results of the conference. Subject to such modifications which may be made to prevent manifest injustice, the resolution in the preceding section shall control the subsequent proceedings in the case unless, within five (5) days from notice thereof, any party shall satisfactorily show valid cause why the same should not be followed. (n)

Rule 49

ORAL ARGUMENTS
The CA may or may not require oral argument. Just read that.
Section 1. When allowed. At its own instance or upon motion of a party, the court may hear the parties in oral argument on the merits of a case, or on any material incident in connection therewith. (n) The oral argument shall be limited to such matters as the court may specify in its order or resolution. (1a, R48) Sec. 2. Conduct of oral argument. Unless authorized by the court, only one counsel may argue for a party. The duration allowed for each party, the sequence of the argumentation, and all other related matters shall be as directed by the court. (n) Sec. 3. No hearing or oral argument for motions. Motions shall not be set for hearing and, unless the court otherwise directs, no hearing or oral argument shall be allowed in support thereof. The adverse party may file objections to the motion within five (5) days from service, upon the expiration of which such motion shall be deemed submitted for resolution. (2a, R49)

How are cases decided in the CA? Normally, you file your petition; submit argument in writing; then you wait for the decision. But sometimes, the CA is provoked by legal issues. So the CA would decide to listen to oral arguments of the parties, especially when the case is controversial. Under Section 3, one difference between motions filed in the RTC and in the CA is that: a.) in the RTC, there must be notice of hearing (Rule 15) attached to the motion, otherwise it will be denied; b.) in the CA, there is no need for notice of hearing to be attached to the motion. References: Rules of Court, 2009 Edition; Remedial Law Reviewer by Dean Iigo Rule 50

DISMISSAL OF APPEAL What are the grounds for dismissal of appeal by the Court of Appeals, on its own motion or on that of the appellee: a. Failure of the record of appeal to show on its face that the appeal was taken within the period fixed by these Rules; b. Faliure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; c. Failure of the appellant to pay the docket and other lawful fees as provided in section 5 of Rule 40 and section 4 of Rule 41; d. Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44; e. Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; f. Absence of specific assignment of errors in the appellant's brief, or of page references to the record as required in section 13, paragraphs a, c, d, and f of Rule 44; g. Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; h. Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and I. The fact that the order or judgment appealed from is not appealable. (1a; En Banc Resolution, Feb. 17, 1998) (Sec. 1, Rules of Court). Dismissal of improper appeal to the Court of Appeals An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed. An appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed,(n) An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. (3a) (Sec. 2, Rules of Court) Withdrawal of Appeal An appeal may be withdrawn as of right at any time before the filing of the appellee's brief. Thereafter, the withdrawal may be allowed in the discretion of the court. (4a) (Sec. 3, Rules of Court) Rule 51 JUDGMENT When case deemed submitted for judgment? A. In ordinary appeals. 1. Where no hearing on the merits of the case is held, upon the filing of the last pleading, brief, or memorandum required by the Rules or by the court itself, or the expiration of the period for its filing. 2. Where such hearing is held, upon its termination or upon the filing of the last pleading or memorandum as may be required or permitted to be filed by the court, or the expiration of the period for its filing. B. In original actions and petitions for review. 1. Where no comment is filed, upon the expiration of the period of comment. 2. Where no hearing is held, upon the filing of the last pleading required or permitted to be filed by the court, or the expiration of the period for its filing. 3. Where a hearing on the merits of the main case is held, upon its termination or upon the filing of the last pleading or memorandum as may

be required or permitted to be filed by the court, or the expiration of the period for its filing. (n) (Sec. 1, Rules of Court)

By whom rendered? The judgment shall be rendered by the members of the court who participated in the deliberation of the merits of the case before its assignment to a member for the writing of the decision. (n) (Sec. 2, Rules of Court) Quorum and voting in the court. The participation of all three Justices of a division shall be necessary at the deliberation and the unanimous vote of the three Justices shall be required for the pronouncement of a judgment or final resolution. If the three Justices do not reach a unanimous vote, the clerk shall enter the votes of the dissenting Justices in the record. Thereafter, the Chairman of the division shall refer the case, together with the minutes of the deliberation, to the Presiding Justice who shall designate two Justices chosen by raffle from among all the other members of the court to sit temporarily with them, forming a special division of five Justices. The participation of all the five members of the special division shall be necessary for the deliberation required in section 2 of this Rule and the concurrence of a majority of such division shall be required for the pronouncement of a judgment or final resolution. (2a) (Sec. 3, Rules of Court) Disposition of a case. The Court of Appeals, in the exercise of its appellate jurisdiction, may affirm, reverse, or modify the judgment or final order appealed from, and may direct a new trial or further proceedings to be had. (3a) (Sec. 4, Rules of Court) Form of decision. Every decision or final resolution of the court in appealed cases shall clearly and distinctly state the findings of fact and the conclusion of law on which it is based, which may be contaned in the decision or final resolution itself, or adopted from those set forth in the decision, order, or resolution appealed from. (Sec. 40, BP Blg. 129) (n) (Sec. 5, Rules of Court) Judgment where there are several parties. In all actions or proceedings, an appealed judgment may be affirmed as to some of the appellants, and reversed as to others, and the case shall thereafter be proceeded with, so far as necessary, as if separate actions had been begun and prosecuted; and execution of the judgment of affirmance may be had accordingly, and costs may be adjudged in such cases, as the court shall deem proper. (6) (Sec. 7, Rules of Court) Questions that may be decided. No error which does not affect the jurisdiction over the subject matter or the validity of the judgment appealed from or the proceedings therein will be considered unless stated in the assignment of errors, or closely related to or dependent on an assigned error and properly argued in the brief, save as the court may pass upon plain errors and clerical errors. (7a) (Sec. 8, Rules of Court) Promulgation and notice of judgment. After the judgment or final resolution and dissenting or separate opinions, if any, are signed by the Justices taking part, they shall be delivered for filing to the clerk who shall indicate thereon the date of promulgation and cause true copies thereof to be served upon the parties or their counsel. (n) (Sec. 9, Rules of Court)

Entry of judgments and final resolutions. If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules, the judgment or final resolution shall forthwith be entered by the clerk in the book of entries of judgments. The date when the judgment or final resolution becomes executory shall be deemed as the date of its entry. (Sec. 10, Rules of Court) Execution of judgment Except where the judgment or final order or resolution, or a portion thereof, is ordered to be immediately executory, the motion for its execution may only be filed in the proper court after its entry. In original actions in the Court of Appeals, its writ of execution shall be accompanied by a certified true copy of the entry of judgment or final resolution and addressed to any appropriate officer for its enforcement. In appealed cases, where the motion for execution pending appeal is filed in the Court of Appeals at a time that it is in possession of the original record or the record on appeal, the resolution granting such motion shall be transmitted to the lower court from which the case originated, together with a certified true copy of the judgment or final order to be executed, with a directive for such court of origin to issue the proper writ for its enforcement. (n) (Sec. 11, Rules of Court) Rule 52 MOTION FOR RECONSIDERATION Period for filing. Within fifteen (15) days from from notice thereof, with proof of service on the adverse party. (n) (Sec. 1, Rules of Court) No second motion for reconsideration by the same party shall be entertained. (n) (Sec. 2, Rules of Court) Resolution of motion Within ninety (90) days from the date when the court declares it submitted for resolution. (n) (Sec. 3, Rules of Court) Stay of execution The pendency of a motion for reconsideration filed on time and by the proper party shall stay the execution of the judgment or final resolution sought to be reconsidered unless the court, for good reasons, shall otherwise direct. (n) (Sec. 4, Rules of Court) Rule 53 NEW TRIAL

Within what time may a party file a motion for new trial? Answer: A party may file a motion for new trial at any time after the appeal from the lower court has been perfected and before the Court of Appeals loses jurisdiction over the case. (Rule 53, sec.1) On what grounds may a party file a motion for new trial? Answer:

It may be on the ground of newly discovered evidence which could not have been discovered prior to the trial in the lower court by the exercise of due diligence and which is of such character as would probably change the result. The motion shall be accompanied by the affidavits showing the facts constituting the grounds thereof and the newly discovered evidence. (Rule 53, sec.1) Under what conditions a motion for new trial may on the ground of newly discovered evidence be filed and sustained? Answer: The newly discovered evidence: Must not have been discovered prior to the trial in the lower court by the exercise of due diligence. Must be of such character as would probably change the result. (Rule 53, sec.1) What actions may the Court of Appeals do when a motion for new trial is filed? Answer: The Court of Appeals shall consider the new evidence together with that adduced at the trial below, and may grant or refuse a new trial, or make such order, with notice to both parties, as to the taking of further testimony, either orally in court, or by depositions, or render such other judgment as ought to be rendered upon such terms as it may deem just. (Rule 53, sec.2) Does it mean that when a motion for new trial on the ground of newly discovered evidence is filed, the Court of Appeals will conduct a trial like what is being done in the trial courts? Answer: Yes, in fact, the rules provides that the procedure in the new trial shall be the same as that granted by a Regional Trial Court, unless the court otherwise directs. (Rule 53, sec.4) It further provides that the Court of Appeals may issue an order for the taking of further testimony, either orally in court or by depositions. (Rule 53, sec.2) Within what period shall the Court of Appeals resolve the motion for new trial? Answer: It shall resolve a motion for new trial within 90 days from the date when the court declares it resubmitted for resolution. (Rule 53, sec.3) Rule 54 INTERNAL BUSINESS How many members of the Court of Appeals shall constitute a quorum for its session en banc? Answer: A majority of the actual members of the Court of Appeals shall constitute a quorum for its session en banc. (Rule 54, sec.2)

How many members shall constitute a quorum for the session in a division? Answer: Three members shall constitute a quorum for the session of a division. (Rule 54, sec.1) What vote is required for a division to pass a resolution? Answer: The affirmative votes of three members of a division shall be necessary for the pronouncement of a judgment or final resolution. (Rule 54, sec.1) How shall a resolution or final judgment of a division be reached?

Answer: It shall be reached in consultation of the members before the writing of the opinion by any member of the division. (Rule 54, sec.1) Rule 55 Publication of Judgments and Final Resolutions State the form and contents of a reported judgment or final resolution? Answer: The reporter shall prepare and publish with each reported judgments and final resolution a concise synopsis of the facts necessary for a clear understanding of the case, the names of counsel, the material and controverted points involved, the authorities therein, and a syllabus which shall be confined to points of law. (Rule 55, sec.2) References: Remedial Law Reviewer By: ALBANO ALBANO Jr. ALBANO 2004 Edition R. Provisional Remedies 1. Nature of provisional remedies Provisional remedies are: Those to which parties litigant may resort for the preservation or protection of their rights or interest, and for no other purpose during the pendency of the action. They are applied to a pending litigation, for the purpose of securing the judgment or preserving the status quo, and in some cases after judgment, for the purpose of preserving or disposing of the subject matter. (Remedial Law III, Herrera, page 1, 2006 Edition)

2. Jurisdiction over provisional remedies MTC has jurisdiction over civil actions and xxx including the grant of provisional remedies in proper cases. (B.P Blg. 129.)

3. Preliminary Attachment (Rule 57, Rules of Court) a. Grounds for issuance of writ of attachment A plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a wilful violation of duty; In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. (Sec 1, Rule 57)

Note: Attachment may be issued only in the cases or actions specifically stated hereinabove in order that the defendant may not dispose of his property attached, and thus secure the satisfaction of any judgment that may be recovered by the plaintiff against the defendant. For that reason, a property subject of litigation between the parties, or claimed by the plaintiff as his, cannot be attached upon motion of the same plaintiff. (Calo and San Jose v. Roldan, 76 Phil. 445, 452 (1946)). b. Requisites Sufficient cause of action Case is covered by Section 1, Rule 57 No other sufficient security for the claim exists Amount due to applicant or value of property he is entitled to recover is equal to the sum which the order or attachment is granted. (Remedial Law Reviewer, San Beda)

c. Issuance and contents of order of attachment; affidavit and bond The order must require the sheriff or other proper officer to attach all the property of the party against whom it is issued within the province not exempt from execution or so much thereof as may be sufficient to satisfy the applicants demand, the amount of which must be stated in the order. (Sec 2, Rule 57, and Albano Albano Jr. Albano, Remedial Law Reviewer, 2004 Revised Edition, page 654).

Thus, the settled rule is that attachment may be issued ex parte. (Filinvest v. Relova, 117 SCRA 420). Nothing in the Rules of Court make notice and hearing indispensable and mandatory requisites for the issuance of a writ of attachment. (Toledo v. Burgos, 168 SCRA 513) The party applying gives a bond executed to the adverse party in an amount to be fixed by the judge, not exceeding the applicants claim, conditioned for the payment of costs, and damages which may be awarded to the adverse party, if the court decides that the applicant is not entitled to the attachment. (Secs 3 and 4, Rule 57, and Albano Albano Jr. Albano, Remedial Law Reviewer, 2004 Revised Edition, page 655). If the affidavit does not show that there is no other security for the claim sought to be enforced and that the amount due is above all counterclaims, the application is fatally defective. (Jardine Manila Finance, Inc. vs. CA 171 SCRA 636). The general rule is that the affidavit is the foundation of the writ, and if none be filed or one be filed which wholly fails to set out some facts required by law to be stated therein, there is no jurisdiction and the proceedings are null and void. (Adlawan, et al. Vs. Hon. Torres, et al., 53 SCAD 40, G.R. Nos 65957-58, July 5, 1994). d. Rule on prior or contemporaneous service of summons The requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served personally or by substituted service despite diligent efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem. (www.yahoo.com).

General Rule: The writ of attachment shall not be enforced unless there has been a prior or contemporaneous service of summons, together with a copy of the complaint, the application for attachment, the applicants affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines. Exception: The requirement of prior or contemporaneous service of summons shall not apply where summons could not be served personally or by substituted service despite diligent efforts. (Civil Procedure Annotated, Feria Noche, Vol. II, 2001 Edition, pages 285-286) e. Manner of attaching real and personal property; when property attached is claimed by third person The law provides for a manner of attaching properties; thus: Attach properties without delay; Serve copy of the applicants affidavit and bond on the adverse party. (Sec 5, Rule 57, and Albano Albano Jr. Albano, Remedial Law Reviewer, 2004 Revised Edition, page 656-567).

Note: Properties which cannot be attached: Those statutorily exempt from attachment; Title is not in the name of the defendant (unless it is shown that he has beneficial interest in property); The laborers wages shall not be subject to attachment except for debts incurred for food, shelters, clothing and medical attendance. (Remedial Law III, Herrera, pages 21-22, 2006 Edition)

The same procedure is found in Section 16 of Rule 39, except that the third-party claimant may vindicate his claim to the property attached in the same action by intervention or in a separate action, just like in Section 7 of Rule 60 with reference to replevin. (Civil Procedure Annotated, Feria Noche, Vol. II, 2001 Edition, pages 307-308) f. Discharge of attachment and the counter-bond It may be discharged by filling a motion to that effect on the grounds that the same was improperly or irregularly issued or enforced or that the bond is insufficient. (Sec 12, Rule 57, and Albano Albano Jr. Albano, Remedial Law Reviewer, 2004 Revised Edition, page 663). In the book of Justice Herrera it says; The deposit or counterbond stands in place of the property so released regardless of how judgment was obtained, whether on the merits or by compromise agreement. There is a difference between the bond for issuance of writ and for lifting of writs. The first is for damages by reason of the issuance of the writ (Sec 4) while the second is to secure the payment of the judgment to be recovered (Secs. 5 and 12). Only the defendant or the party whose property is attached may move for its lifting. If the attachment is proper, the discharge should be by counterbond under this section. (Jopillo, Jr. V. CA, 167 SCRA 247). If a counterbond is filed, the attachment must be discharged. But a discharge is not automatic; there must be a hearing and a court order. A garnishment order may be lifted, if it is established: that the party whose accounts has been garnished has posted a counterbond or has made the requisite deposit; the order was improperly or irregularly issued, as there is no ground for garnishment or affidavit and/or bond filed therefor are defective or insufficient. (The Manila Remnant Co., Inc. v. CA, March 16, 1994)

g. Satisfaction of judgment out of property attached By paying to the judgment oblige the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment; If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriffs hands, or in those of the clerk of the court; By collecting from all persons having in their possession credits belonging to the judgment obligor or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment oblige. In Philippine Airlines v. CA, 181 SCRA 557, it was held that payment by check in the name of the sheriff who absconded did not operate as satisfaction of the judgment. 4. Preliminary Injunction (Rule 58, Rules of Court) a. Definitions and Differences: Preliminary Injunction and Temporary Restraining Order

Preliminary Injunction, defined: a provisional remedy that a party may resort to in order to preserve and protect certain rights and interests during the pendency of an action. It is used to preserve the status quo ante the last actual, peaceful, and uncontested status that preceded the actual controversy. (Remedial Law III, Herrera, pages 69, 2006 Edition); See also Sec. 1 of this Rule. Temporary Restraining Order, defined: one which is issued to preserve the status quo until the hearing of the application for preliminary injunction which cannot be issued ex parte. (Remedial Law III, Herrera, pages 68, 2006 Edition) Difference: A preliminary injunction is granted at any stage of an action or proceeding prior to the judgment or final order. It persist until it is dissolved or until the termination of the action without the court issuing a final injunction; while a restraining order, on the other hand, is issued to preserve the status quo until the hearing of the application for preliminary injunction which cannot be issued ex parte. (Remedial Law III, Herrera, pages 68, 2006 Edition).

b. Requisites For an injunctive writ to be issued, the following requisites must be proven: That the petitioner applicant must have a clear and unmistakable right; That there is a material and substantial invasion of such right; That there is an urgent and permanent necessity for the writ to prevent serious damage.

c. Kinds of Injunction Preliminary Injunction- It is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency, or a person either to refrain from, or perform, a particular act or acts. Final Injunction- It is a judgment rendered after trial which perpetually restrains the party or person enjoined from the commission or continuance of the act or acts, or confirming the preliminary mandatory injunction. (Civil Procedure Annotated, Feria Noche, Vol. II, 2001 Edition, page 325) d. When writ may be issued The special remedy of preliminary prohibitory injunction lies when the plaintiffs principal action is an ordinary action of injunction, that is, when the relief demanded in the plaintiffs complaint consists in restraining the commission or continuance of the act complained of, either perpetually or for a limited period, and the other conditions required by Section 3 of Rule 60 (now Section 3 of Rule 58) are present. The purpose of this provisional remedy is to preserve the status quo of the things subject of the action or the relation between the parties, in order to protect the rights of the plaintiff respecting the subject of the action during the pendency of the suit. Because, otherwise or if no preliminary prohibitory injunction were issued, the defendant may, before final judgment, do or continue the doing of the act which the plaintiff asks the court to restrain, and thus make ineffectual the final judgment rendered afterwards granting the relief sought by the plaintiff. But, as this court has repeatedly held, a writ of preliminary injunction should not be granted to take the property out of the possession of one party to place it in the hands of another whose title has not been clearly established.

The writ of preliminary mandatory injunction may be issued if the following requisites are present: (1) the complainant has a clear legal right; (2) his rights has been violated and the invasion is material and substantial; and (3) there is an urgent and permanent necessity to prevent serious damage. The right must be clear and unmistakable because unlike a preliminary mandatory injunction requires the performance of a particular act or acts and thus tends to do more than maintain the status quo. (Civil Procedure Annotated, Feria Noche, Vol. II, 2001 Edition, pages 323-324).

e. Grounds for issuance of preliminary injunction That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; That the commission, continuance or non0performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. (Sec 3, Rule 58, and Albano Albano Jr. Albano, Remedial Law Reviewer, 2004 Revised Edition, page 673-674). f. Grounds for objection to, or for the dissolution of injunction or restraining order The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. (Sec 6, Rule 58). Cases: Batacalan v. CA, 175 SCRA 764 Valley Trading Co. v. CFI, 171 SCRA 501 g. Duration of TRO The last paragraph of Section 5 of this Rule is a new provision on the period of effectivity of a restraining order issued by the Court of appeals (60 days from service) or by the Supreme Court (until further orders). (Civil Procedure Annotated, Feria Noche, Vol. II, 2001 Edition, page 352) h. In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure projects xxx i. Rule on prior or contemporaneous service of summons in relation to attachment Xxx 5. Receivership (Rule 59 Rules of Court)

a. Cases when receiver may be appointed They are: When it appears from the verified application, and such other proof as the judge may require, that the party applying for the appointment of receiver has an interest in the property of fund which is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. (Sec 1, Rule 59, and Albano Albano Jr. Albano, Remedial Law Reviewer, 2004 Revised Edition, page 695).

b. Requisites Applicant has interest in the property or fund subject matter of the action or proceeding; Property or fund is in danger of being lost or removed or materially injured; Appointment of receiver is the most convenient and feasible means of preserving, administering or disposing of the property in litigation. (Remedial Law Reviewer by San Beda).

c. Requirements before issuance of an Order Receiver should: Be sworn to perform faithfully his duties; File a bond (Sec 4, Rule 59). d. General powers of a receiver Subject to the control of the court in which the action or proceeding is pending, a receiver shall have power to: bring and defend, as such, actions in his own name; take and keep possession of the property in controversy; receive rents; collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; pay outstanding debts divide the money and other property that shall remain among the persons legally entitled to receive the same; and do such acts respecting the property as the court may authorize. (Sec 6, Rule 59, and Albano Albano Jr. Albano, Remedial Law Reviewer, 2004 Revised Edition, page 699). e. Two (2) kinds of bonds xxx f. Termination of receivership

When the court shall have determined after notice to all parties, that the necessity for a receiver no longer exists (Sec 8, Rule 59); or that its continuance is not justified by the facts and circumstances of the case (Samson vs. Araneta, 64 Phil. 549); or when the court is convinced that the powers are abused. (Duque vs. CFI, Manila, 13 SCRA 420). (Albano Albano Jr. Albano, Remedial Law Reviewer, 2004 Revised Edition, page 699).

6. Replevin (Rule 60, Rules of Court) It is an action to recovery of possession made by the complainants prayer, for the recovery of personal properties only. (Art 428)As principal action, its ultimate goal is to recovered personal property capable of manual delivery wrongfully detained by a person. It is a provisional remedy, because of seeking to have possession of the property prior to the determination of the action and not the main action of replevin. a. When may the writ be issued? At the commencement of the action or at anytime before answer, apply for an order for the delivery of such property to him. (Sec. 1 Rule 60) b. Requisites The applicant is the owner of said property or that he is entitle to the possession thereof; The property is wrongfully detained by the other; It must not taken for tax, assessment, fine pursuant to the law, or under a writ of execution or preliminary attachment; State the actual market value; and The applicant must give a bond. (Sec. 2, Rule 60)

c. Affidavit and bond; Redelivery Bond The applicant should execute an statement indicating above mention therein, and give a bond which is double the value of the property involved for payment to the adverse party of such sum as he may recover from the applicant (2nd par sec. 2 rule 60) because the applicant, at anytime maybe acquired the personal property in question. Considering that the bond given is for a security, if the same party applicant lost the litigation, then the bond which is double its value shall payment for the proper owner that prevail. Redelivery bond: The adverse party can reclaimed the same within five (5) days after such taking; By filing a REDELIVERY BOND from the court where the case is pending;

Here, the adverse party may execute a bond just like the applicant did and such bond be double its value of sum executed by the applicant, as a condition for such returned. By serving such copy of the bond to the applicant. If the bond executed by the adverse party and without any objection from the applicant, the same property will be redelivered to the former. Nonetheless, if the applicant objects its insufficiency of said bond, the same may file an approved bond in his favor and in such a way the court may affirm it, the property should be delivered to the applicant.

d. Sheriffs duty in the implementation of the writ; when property is claimed by third party Serve a copy of the order to the adverse party, together with the application, affidavit and a bond and take custody of the property. After the property was already in the possession of the sheriff, the latter shall keep the same in a secure place. If the property was concealed in a close building, the sheriff must demand for its delivery and if the same will not return, he may cause the building to be broken and open it and take possession of the property. (Sec 4, Rule 60) Note: When the property is under in custodia legis, replevin cannot be availed thereof. When claimed by 3rd party: The sheriff shall not be bound to keep the property under repliven or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property under replevin. (Sec 7, Rule 61)

S. Special Civil Action 1. Nature of special civil actions: There are two types of civil action: Ordinary Special Both types are governed by the Ordinary Civil Action, the fact that in special action is subject to special rules which are not done in the ordinary civil action, such as when the complaint is initiated by the very person who has the cause of action considering that his right was violated by another. In Special Civil Action, it is not necessary that the party initiated anaction is the one that seeking protection or redress of wrong doing or directly affected therein. What makes special action as an action governed by special rule which is not applicable in ordinary action; such as Interpleader, in which the party seeking to know whose right shall prevail from adverse parties over the same property in question. 2. Ordinary Civil Action versus Special Civil Action In ordinary civil action,it must be based on a cause of action while in special civil,the cause of action is not always necessary for its existence therewith. Ordinary cause of action, the venue shall be determined by the place of the parties or to the location of the real property involved.While in special civil action, the resident of parties or location of the property does not always apply. 3. Jurisdiction and Venue: In Special Civil Action, to determined which court should acquire proper jurisdiction depend upon the case instituted by following RA 7691 as amended, which also applicable to ordinary civil action. For special civil action, its venue shall be determined from the type of action which the party wants to file. For instance, petition for quo warranto, certiorari or mandamus wherein the Supreme Court or Court of Appeal commences such action without taking consideration of the residence of the party involve of.

4. Interpleader (Rule 62, Rules of Court) What is Interpleader? Proceeding in equity in which a person in possession of the property claimed by two or more persons adversely to each other. (Legal Dictionary) It is a special civil action filed by a person against whom two conflicting claims are made upon the same subject matter and over which he claim no interest, to compel the claimant to interplead ant to litigate their conflicting claims among themselves. (Sec. 1, Rule 62) a. Requisites for Interpleader There must be two or more claimants with adverse or conflicting interest to a property in the custody or possession of the plaintiff; The plaintiff in an action for Interpleader has no claim upon the subject matter of the adverse claims: and Subject matter of the adverse claim must be one and the same.

Example: A, is a depository wherein a certain personal property was in his possession. Here comes now B and C who are both claiming to be entitled of the said property. A can file an action against B and C to compel them as depositors to resolve their conflicting claims among themselves and establish the rightful owner thereof. b. When to file? The commencement of an action for Interpleader from the time there was a conflicting claims, a complaint was instituted by the plaintiff after payment of docket and other lawful fees. An action of Interpleader after it was filed in court, there will be an order directing both/all claimants to submit their answer within 15 days after service of summons received with attachment of complaint. Both adverse parties shall furnish each other a copy. Nonetheless, under the rule on ordinary civil action, the adverse party can file motion to dismiss based on the ground mention under Rule 16. Likewise, in Interpleader, any of the adverse party may involve same rule and in addition to that, is impropriety wherein the allegation failed to show conflicting claims. After the filing of the complaint of Interpleader, the complainant upon motion, or the court, declare the adverse parties in default by failure to file answer with the reglementary period. Such defaulted adverse party prevents him from pursuing his claim. 5. Declaratory Relief and other Similar Remedies (Rule 63, Rules of Court) What is declaratory relief? It is a process whereby the right of any person was affected or prejudice of a certain rules of law, ordinances, statutes being implemented or right over certain contracts. a. Who may file the action? Any person (either juridical, natural or entities authorized by law) whose right are affected or violated. (Sec. 1 Rule 63) Petition for declaratory relief are exclusive to the following: A deed, a will, a contract or regulation, an ordinances or any other governmental regulation. Thus, any action or petition pertaining with declaratory relief which are not mention any of the following shall be deem improper.

Example: a. b. c. d.

His filiations and his hereditary rights, To seek judicial declaration of citizenship, Seeking importance of true important judgment, To seek relief to assail judgment.

As far as it concerned, not all relief mention above exclusively will grand the court such petition. Like a contract or statute wherein its term and intention are clear and no room for such interpretation or doubtful, seeking relief cannot be attain thereof or it is improper. Note: Who will acquire the proper jurisdiction? Considering the matter of seeking any questions of construction; Validity arising from the subject matter thereof; and declaration of rights and duties thereof, the Regional Trial Court shall acquire the proper jurisdiction to determine such controversies. Why it should be filed at Regional Trial Court? Because the issue of the subject matter arises does not capable of pecuniary estimation. (Sec.1, Rule 63) However, there are instances wherein an action is not necessary to fall under Regional Trial Court, since it depends upon the assessed value of the property. Example: a. Conveyance of title of real property b. Cancellation of title c. quitting of title b. Requisites of action for declaratory relief The subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, or ordinance; The terms of said documents and the validity thereof are doubtful and require judicial construction; There must have been no breach of the documents in question, otherwise an ordinary civil action is the remedy; There must be an actual justiciable controversy or the repining seeds of one between persons whose interests are adverse; The issue must be ripe for judicial determination, as for example, where all administrative remedies have been exhausted.

c. When the court may refuse to make judicial declaration The court may refuse to act if: Where the decision of the petition would not terminate the uncertainty or controversy which gives rise to the action.

Example: There may be proper parties who cannot be joined in the action and whose interest may result will result to uncertainty; or the judgment in the action for relief is inconsistent with the fact that was not available to the court. If the action for the declaration or construction is not necessary and proper under the circumstances as when the instrument or statute has already been breached. d. Conversion to Ordinary Action

The fact that a declaratory relief is a Special Civil Action, this action can be converted into Ordinary Action, provided that the main action does not fall under Sec.1, Rule 63 or if does, but there is no need for the court to interpret such as it is true and the intention is clear. Such as that there was any breach or violation enumerated under Sec.1, Rule 63. When an action brought after there was breach of contract or the statute is already violated, thus, the proper remedy is appropriate ordinary civil action (Ollada vs. Central Bank, 5 SCRA 297). Nonetheless, when the breach occurs not before the filing of the petition for declaratory relief but after the action has been instituted and before its final termination, the action may converted into an ordinary action and the parties are required to file their pleadings as may be necessary and proper (Rule 63, Sec.6). e. Proceedings Considered as Similar Remedies A. Reformation of Instrument: When the parties of the contract failed to show their true intention over their agreement because of the person made such instrument has lack of skills; or when their agreement, such as mortgage or pledge but on the instrument established that it was sold. Under of that circumstances above aforementioned are proper. B. Consolidation of Ownership: The action brought to consolidate ownership is not for the propose of consolidating the ownership of the property in the person of the vendee or buyer for the registration of the property. C. Quieting of Title to real property Xxx 6. Review of Judgments and Final Orders or Resolutions of the Commission on Elections and the Commission on Audit. (Rule 64, Rules of Court) a. Application for Rule 65 under Rule 64. In Aratuc vs. Commision on Election G.R. No. 49705-09 Held: The legislative construction of the modified peritinent constitutional provision is to the effect that the actuations of the Commission are final, executory and even inappealable. While such construction does not exclude the general certiorari jurisdiction of the Supreme Court which inheres in it as the final guardian of the Constitution, particularly, of its imperious due process mandate, it correspondingly narrows down the scope and extent of the inquiry the Court is supposed to undertake to what is strictly the office of certiorari as distinguished from review. We are of the considered opinion that the statutory modifications are consistent with the apparent new constitutional intent. Indeed, it is obvious that to say that actuations of the Commission may be brought to the Supreme Court on certiorari technically connotes something less than saying that the same "shall be subject to review by the Supreme Court", when it comes to the measure of the Court's reviewing authority or prerogative in the premises. A review includes digging into the merits and unearthing errors of judgment, while certiorari deals exclusively with grave abuse of discretion, which may not exist even when the decision is otherwise erroneous. Certiorari implies an indifferent disregard of the law, arbitrariness and caprice; an omission to weight pertinent considerations, a decision arrived at without rational deliberation. While the effects of an error of judgment may not differ from that of an indiscretion, as a matter of policy, there are matters that by their nature ought to be left for final determination to the sound discretion of certain officers or entities, reserving it to

the Supreme Court to insure the faithful observance of due process only in cases of patent arbitrariness. This rule now clearly specifies that the mode of review is the special civil action of certiorari under Rule 65 except time to file action; 30 days from notice of judgment; motion is denied, not less than 5 days from denial (Sec. 3, Rule 64) If the Supreme Court finds the petition sufficient in form and substance, it shall order the respondents to file their comments on the petition within ten (10) days from notice thereof; otherwise, the Court may dismiss the petition outright. The Court may also dismiss the petition if it was filed manifestly for delay or the questions raised are too unsubstantial to warrant further proceedings. (Sec 6, Rule 64) b. Distinction in the application of Rule 65 to judgments of the COMELEC and COA and the application of the Rule 65 to other tribunals, persons and officers. The period of thirty (30) days from notice within which to file the petition is the special period provided in section 7 of article IX of the 1987 constitution as stated in section 3 rule 64 of Rules of court, compared to the new period of sixty 60 days for filing a petition for certiorari under section 4 of Rule 65. Moreover, in the event a motion for new trial or reconsideration, the filing of which interrupts the thirty day period, is subsequently denied, the petition under this Rule should be file within the remaining period, but not less than five (5) days from notice of denial. Under Section 4 of Rule 65 as amended, a new period of sixty (60) days from notice of denial is given for the filing of the petition. Order to comment which is similar to Section 6 of Rule 65. 7. Certiorari, Prohibition and Mandamus (Rule 65, Rules of Court) a. Definitions and Distinctions

1. Definitions Certiorari is a writ issued by a superior court to an inferior court, board or tribunal or office exercising judicial or quasi-judicial functions whereby the record of a particular case is ordered to be elevated for review and correction in matters of law (Meralco Securities Ind. Corp. vs. Central Board of Assessment Appeals, L-46245, May 31, 1982) Prohibition refers only to proceedings of any tribunal, corporation, board, or person, exercising functions judicial or ministerial. (Rule 67, section 2, Rules of Court.) As the respondents do not exercise such kind of functions, theirs being legislative, it is clear the dispute falls beyond the scope of such special remedy. (Jose Vera vs. Jose Avelino G.R. No. L 543 August 31, 1946) The writ of prohibition, as its name imports, is one which commands the person to whom it is directed not to do something which, by the suggested to the relator, the court is informed he is about to do. Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of law. (Abaga v. Panes, G.R. No. 147044, August 24, 2007) This definition recognizes the public character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose of enforcing the performance of duties in which the public has no interest (UY KIAO ENG vs. NIXON LEE G.R. No. 176831 January 15, 2010)

2. Distinction ( in the book of Regalado) With respect to the purpose of the writ, certiorari is intended to correct an act performed by the respondent; prohibition is intended to prevent commission or carrying out of an act; while mandamus is intended to compel the performance of the act desired. With respect to the act sought to be controlled, certiorari extends only to discretionary acts; prohibition to discretionary and ministerial acts; and mandamus, to ministerial acts. With respect to the respondent, certiorari lies only against a respondent exercising judicial or quasi-judicial functions, while both prohibition and mandamus are available against respondents who exercise judicial and/or no judicial functions.

b. Requisites Petition for certiorari. (Section 1 Rule 65) When any tribunal, board or officer exercising judicial or quasi-judicial functionshas acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law; a person aggrieved thereby may file a verified petition, in the proper court, accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.

Petition for prohibition. (Section 2 Rule 65) When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition to the proper court. The petition shall accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require.

Petition for mandamus. (Section 3 Rule 65) When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or

unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled; and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner; and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent.

c. When petition for certiorari, prohibition and mandamus proper That for a writ of certiorari to issue, it must not only be shown that the board, tribunal or officer acted without or in excess of jurisdiction, or in grave abuse of discretion, but also that there is no appeal or other plain, speedy, and adequate remedy in the ordinary course of law available to the aggrieved party. (HON. FRANCISCO JOSE vs. JOSE C. ZULUETA G.R. No. L-16598 May 31, 1961) The function of the writ of prohibition is to prevent the doing of some act which is about to be done. It is not intended to provide a remedy for acts already accomplished. If the thing be already done, it is manifest the writ of prohibition cannot undo it, for that would require an affirmative act; and the only effect to a writ of prohibition is to suspend all action, and to prevent any further proceeding in the prohibited direction. (SIMEON CABAERO vs RAMON TORRES G.R. No. L-43352 June 3, 1935) Mandamus, the writ is a proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when the public right involved is mandated by the Constitution. (UY KIAO ENG vs. NIXON LEE G.R. No. 176831 January 15, 2010) d. Injunctive relief.

The court in which the petition is filed may issue orders expediting the proceeding and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent from further proceeding in the case. (Sec 7, Rule 65) The burden is thus on the petitioner in a petition for Certiorari, Prohibition and Mandamus to show that there is a meritorious ground for the issuance of a temporary restraining order or writ of preliminary injunction for the purpose of suspending the proceedings before the public respondent. Essential for granting injunctive relief is the existence of an urgent necessity for the writ in order to prevent serious damage. (REPUBLIC OF THE PHIL. VS. SANDIGANBAYAN G.R. No. 166859, June 26, 2006) e. Certiorari distinguished from Appeal by Certiorari; Prohibition and Mandamus distinguished from Injunction; when and where to file petition Certiorari distinguish from appeal by certiorari Under Rule 65 which is certiorari proper or writ of certiorari while under Rule 45 is appeal by certiorari. In certiorari Motion for Reconsideration generally required while in appeal by certiorari no need for Motion for Reconsideration. In certiorari applies to interlocutory orders rendered in excess/lack of jurisdiction while in appeal by certiorari relates to final judgments.

In certiorari not an appeal in the strict sense while in appeal by certiorari, it is an appeal. may be filed not later than 60 days from notice of judgment while in appeal by certiorari 15 days from notice of judgment.

Prohibition and Mandamus distinguished from Injunction As to purpose: In injunction to require a party or a court, agency or a person to refrain from doing a particular act or acts or to require the performance of a particular act or acts. While in Prohibition only the judicial or quasi judicial function are refrain from doing an act or carrying out an act. In Mandamus the judicial or quasi-judicial functions or persons intended to compel performance. With respect to respondent: In injunction it is directed against a party in the action while in Prohibition and Mandamus directed against a court, tribunal or a person exercising judicial powers. As to grounds: In injunction, entitled relief demanded whether refrain from doing or performance of an act. While in Prohibition, in the court against whom the writ is sought had acted without or in excess of jurisdiction. In Mandamus act to be performed were not complied which parties asking for relief.

It is proper Preliminary Injunction must be sought if it is urgent or necessary for the writ of Prohibition or Mandamus. When and where to file petition In Certiorari, Prohibition, and Mandamus xxx Sec. 4. When and where petition filed.The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of said motion. The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. f. Exceptions to filing of motion for reconsideration before filing petition In the book of Regalado, as a rule a motion for reconsideration must first be availed of before certiorari the purpose of this requirement is to enable the lower court to correct its mistakes without the intervention of the lower courts (BA Finance vs.Pineda 1982) Exceptions: the order is a patent nullity(Vigan Electric. Light vs. Public Service Commission1964) the questions raised in the certiorari have been duly raised and passed upon by the lower court (Fortich-Celdran vs. Celdran1967) or are the same as those raised and passed upon in the lower court (Pajo vs.Ago 1960) there is an urgent necessity for the resolution of the question and delay would prejudice the interests of the government(Vivo vs.Cloribel 1966)

the MR would be useless (People vs. Palacio 1960) the petitioner was deprived of due process and there is extreme urgency for relief (Luzon Surety vs. Marbella 1960) in a criminal case, relief from an order of arrest is urgent and the granting of such relief by trial court is improbable(Matutina vs. Baslon 1960) the proceedings in the lower court are a nullity for lack of due process (Matute vs. CA 1969) the proceeding was ex parte in which the petitioner had no opportunity to object (Republic vs. Maglanoc 1963) the issue raised is purely a question of law or where the public interest is involved (PALEA vs. PAL 1982)

g. Reliefs petitioner is entitled to In Certiorari, when any tribunal, board or officer exercising judicial or quasijudicial functions has acted without or in excess of its jurisdiction; or with grave abuse of discretion amounting to lack or excess of its or his jurisdiction and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law (Sec 1, Rule 65) In Prohibition, when the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial, or ministerial functions, are without or in excess of its or his jurisdiction; or with grave abuse of discretion amounting to lack or excess of its or his jurisdiction and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law (Sec 2, Rule 65) In Mandamus, when any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station; or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled and there is no other plain, speedy and adequate remedy in the ordinary course of law (Sec 3, Rule 65) A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt. An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39. (Section 9) h. Actions/Omissions of MTC/RTC in election cases The COMELEC has the authority to issue extraordinary writs of certiorari, prohibition and mandamus in aid of its exclusive appellate jurisdiction. Both the SC and the COMELEC have concurrent jurisdiction to issue writs of certiorari, prohibition, and mandamus over decisions of trial courts of general jurisdiction in election cases involving elective municipal officials. The court takes jurisdiction first shall exercise exclusive jurisdiction over the case. (Carlos vs. Angeles,346 SCRA 571) Under Sec 50 of BP 697, the COMELEC has jurisdiction over petitions for certiorari, prohibition and mandamus involving election cases pending before the courts whose decisions are appealabe to it (Relampagos vs CUmba, 243 SCRA 690;Edding vs COMELEC 246 SCRA 502) Where a petition for certiorari merely questioned the denial of the motion of the protestee for extension of the time to answer, the COMELEC cannot affirm the decision of the merits in the election protest. (Acosta vs COMELEC, 293 SCRA 578) i. Where to file petition

Court of Appeals - If it involves the acts of a quasi-judicial agency, the petition shall be filed only in the CA, unless otherwise provided by law or the Rules. Regional Trial Court, it it relates to acts /omissions of a lower court / corporation /board / officer / person. Sandiganbayan, if it is in aid of its appellate jurisdiction. In aid of its appellate jurisdiction means there exist a right to appeal the judgment on the merits to the Sandiganbayan. j. Effects of filling of an unmeritorious petition After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. If after such hearing or submission of memoranda or the expiration of the period for the filing thereof the court finds that the allegations of the petition are true, it shall render judgment for the relief prayed for or to which the petitioner is entitled. The court, however, may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (Sec 8, Rule 65) 8. Quo Warranto (Rule 66, Rules of Court) a. Distinguish from Quo Warranto in the Election Code Quo Warranto in Appointive Office The issue is legality of the appointment. The court can determine who was legally appointed and can declare who is entitled to occupy the office. Generally, the action may be filed with the Civil Service Commission. The action must be commenced within one (1) year after the cause of such ouster or the right of the petitioner to hold such office arose.

Quo Warranto under the Election Code The issue is ineligibility of the candidate elected. If the candidate-elect is found to be ineligible, the court cannot place the candidate occupying the second place in the office because the elective offices are determined by prerogative votes. The action can be filed before the proper electoral tribunal or COMELEC or RTC. The action must be filed within 10 days after the elected official is proclaimed.

b. When Government commence action against individuals. An action for the usurpation of a public office, position or franchise may be commence by a verified petition brought in the name of the Republic of the Philippines against: A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise. A public officer who does or suffers an act which by provision of law constitutes a forfeiture of his office. An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

c. When individual may commence an action.

A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefore in his own name. d. Judgment in Quo Warranto action. When respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. e. Rights of a person adjudged entitled to public office. If judgment be rendered in favor of a person averred in the complaint to be entitled to the public office, he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office and may immediately thereafter demand of the respondent all the books and papers in the respondents custody or control appertaining to the office to which the judgment relates. If the respondent refuse or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. The person entitled to the office may also bring an action against the respondent to recover the damages sustained by such person by reason of the usurpation. 9. Expropriation (Rule 67, Rules of Court) a. Matters to allege in complaint for expropriation. The right and purpose of expropriation. Describe the real or personal property sought to be expropriated. Join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, the separate interest of each defendant. b. Two stages in every action for expropriation. a. The filing of a verified complaint by the state or its entities authorized by law. b. The payment of just compensation for the property so taken for public use or purpose. c. When plaintiff can immediately enter into possession of the real property, in relation to R.A. 8974. Upon the filing of the complaint or at any time thereafter and after due notice to the defendant , the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for the purposes of taxation to be held by such bank subject to the orders of the court. Purpose of Preliminary Deposit: If the government wins the action for expropriation, the deposit is deemed to be the advance payment for the just compensation of the property. If the government loses the case and it has already explored your property, the money deposited is already an advance deposit by the government to answer for damages. d. New system of immediate payment of initial just compensation. Upon the deposit by government with the depositary bank of an amount equivalent to the assessed value of the property, the government can file a motion to take over the property immediately while the case is still pending. The final judgment in the

action for expropriation is unnecessary in order for it to enter the property as long as the government had deposited the amount equivalent to its assessed value.

e. Defenses and Objections If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same. If the defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time specified in the summons. No counterclaim, cross claim or third party complaint shall be alleged or allowed in the answer or any subsequent pleading. A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, he may present evidence as to amount of compensation to be paid for his property. f. Order of Expropriation If objections to or the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this rule, the court may; i. Issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated ii. For the public use or purpose described in the complaint. iii. Upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. g. Ascertainment of just compensation/ Appointment of commissioners. The court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall specify the time, place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. Copies of the order shall be served on the parties and any objection to the appointment of any of the commissioners shall be filed with the court within 10 days from the service and shall be resolve within 30 days after all the commissioners shall have received copies of the objections. h. Commissioners report/ Courts action upon commissioners report. The commissioners shall make a full and accurate report to the count of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within 60 days from the date the commissioners were notified by their appointment which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report.

Upon the expiration of the 10 days period, or even before the expiration of the period but after all interested parties have filed their objections to the report, the court may, after hearing; a. Accept the report and render judgment in accordance therewith. b. Recommit the same to the commissioners for further report of facts. c. Set aside the reports and appoint new commissioners. d. Accept the report in part and reject it in part. e. Make such order or render such judgment as such secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken. i. Rights of the plaintiff after judgment and payment. a. Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment or after the amount to him so fixed, the plaintiff shall have the following rights; b. To enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment. c. To retain it should he have taken immediate possession thereof, If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto. j. Effect of recording judgment.

The judgment rendered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of public use or purpose for which it is expropriated. When real property is expropriated, a certified copy of such judgment shall be recorded in the Registry of Deeds of the place in which the property is situated, and its effect shall vest in the plaintiff the title to the real estate so described for such public use or purpose. 10. Foreclosure of Real Estate Mortgage (Rule 68, Rules of Court) The proceeding whereby the property subject of the real estate mortgage is sold at public auction for the payment of the principal obligation in favor of the mortgagee. (Article 2087, Civil Code). It is called foreclosure because the purpose of the action is to foreclose or divest the rights in the property of the mortgagor and junior lien holders and to vest their rights in the purchaser. (Sec 3, Rule 68). a. Judgment on foreclosure for payment or sale FILING OF THE COMPLAINT. The mortgagee or his assignee files the foreclosure complaint, which shall set forth the matters stated in Section 1 of Rule 68. Date and due execution of the mortgage; Its assignments, if any; Names and residences of the mortgagor and the mortgagee; A description of the mortgage property; A statement of the date of the note or other documentary evidence of the obligation secured by the mortgage; The amount claimed to be unpaid thereon; and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action (Sec 1, Rule68). JUDGMENT ON FORECLOSURE. If upon trial the court shall find the facts set forth in the complaint to be true, it shall be determine the amount due to the plaintiff upon the

mortgage debt, including interests and other charges as approved by the court, and cost, and shall render judgment for the sum so found due. 90-120 DAY PERIOD. The court shall order that the sum found due be paid to the court or to the judgment obligee within a period of not less than 90 days nor more than 120 days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment. (Sec 2, Rule 68) FORECLOSURE OF SALE. If the defendant fails to pay within the 90-120 day period, the plaintiff shall file a motion for the foreclosure sale of the property. The sale shall be conducted by way of a public auction in the manner and under the provisions of R39 governing execution sale of real property. b. Sale of mortgage property; effect ORDER OF CONFIRMATION. After the foreclosure sale has been conducted, the purchaser shall file a motion for the confirmation of the sale. The order of confirmation of the sale shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by the law. (Sec 3, Rule 68). WRIT OF POSSESSION. Upon the finality of the order of confirmation or upon the expiration of the redemption period when allowed by law, the purchaser or last redemptioner can file with the court which ordered the foreclosure sale a motion for the issuance of a writ of possession over the property. The purchaser or last redemptioner shall entitle to possession of the property unless a third party is actually holding the same adversely to the judgment obligor. (Sec 3, Rule 68) DEFICIENCY JUDGEMENT. If the proceeds of the foreclosure sale are not sufficient to pay the mortgage debt due, the plaintiff may file a motion for the court to render a deficiency judgment against the defendant, upon which execution may issue immediately. (Sec 6, Rule 68) c. Disposition of proceeds of sale. How proceeds of sale to be disposed: Cost of sale Mortgage of debt due Junior encumbrance in the order of their priority to be ascertained by the court To the mortgagor or his duly authorized agent or to the person entitled to it. (Sec 4, Rule 68). How sale to proceed in case the debt is not all due: General Rule: A sufficient portion of the property is sold to pay the total amount and the costs due. Thereafter sale shall terminate. Afterwards, court may, on motion, order more to be sold as often as more becomes due for the principal or interest and other valid charges Except: if property cannot be sold in portions without prejudice to the parties: Whole shall be ordered to be sold in the first instance The entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefore, there being a rebate of interest where such rebate is proper. (Sec 5, Rule 68). d. Deficiency judgment A judgment rendered by the court in favor of the plaintiff for the balance if the proceeds of the foreclosure sale are not sufficient to pay the judgment award. The plaintiff shall file a motion with the court praying that it render a deficiency judgment. The judgment may be appealed but is immediately executory. Q. Within what period may an appeal from deficiency judgment be taken? A. An appeal may be taken within 15days from notice of the judgment. A record on appeal is not required since the main case is already final and executory and the recovery of the deficiency is simply a continuation of the execution process. (1) Instances when court cannot render deficiency judgment:

Generally, the mortgagee is entitled to recover the deficiency from the mortgagor. An exception to the aforementioned rule may be found in Article 1484, which speaks of a chattel mortgage as security for the purchase of personal property payable in installments. Here, no deficiency judgment can be asked. Any agreement to the contrary shall be VOID. (Civil Code, Paras). According to these provision (Art. 1484 NCC), should the vendee fail to pay two (2) or more installments in a contract of sale of personal property the price of which is payable in installments, the vendor may foreclose the CM, but he shall not have any further action against the vendee to recover any unpaid balance of the price. (Civil law Reviewer, Jurado). On third party mortgagor, in the absence of contrary stipulation, a third party mortgagor is liable only to the extent of the real property mortgaged. (Phil. Trust Co. v. Echaus, 52 Phil. 852). e. Judicial foreclosure vs. extrajudicial foreclosure JUDICIAL FORECLOSURE. Involves in the sale of the mortgaged property under the supervision of a court, with the proceeds going first to satisfy the mortgage; then other lien holders; and, finally, the mortgagor/borrower if any proceeds are left. Under this system, the lender initiates foreclosure by filing a lawsuit against the borrower. As with all other legal actions, all parties must be notified of the foreclosure. EXTRAJUDICIAL FORECLOSURE. This process involves the sale of the property by the mortgage holder without court supervision. This process is generally much faster and cheaper than foreclosure by judicial sale. f. Equity of redemption vs. right of redemption Equity of redemption this is the right of the mortgagor to redeem the mortgaged property after his default in the performance of the conditions of the mortgage but before the sale of the mortgaged property. Right of redemption this is the right of the mortgagor to purchase the property within a certain period after it was sold for the purpose of paying the mortgage debt. (New Civil Code, Paras). 11. Partition (Rule 69, Rules of Court) Partition is the process whereby the co-ownership over real property is terminated by vesting in each of the co-owners a specific property or allotment of the proceeds or value of the property. (Remedial Law Reviewer, Riguera). a. Who may file complaint; who should be made defendants A person having the right to compel the partition of real estate may file a complaint for partition, setting forth the nature and extent of his title and adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property (Remedial Law Reviewer, Riguera). b. Matters to allege in the complaint for partition Shall set forth nature and extent of title and an adequate description of the real estate of which partition is demanded. (Sec 1, Rule 69). c. Two stages in every action for partition Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance The court shall confirm the partition so agreed upon by all the parties . Such partition, and the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated. d. Order of partition and partition by agreement ORDER OF PARTITION. If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all parties in interest. PARTITION BY AGREEMENT. The parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition agreement. (Sec 2, Rule 69, and Remedial Law Reviewer, Riguera).

e. Partition by commissioners, Appointment of commissioners, Commissioners report; Court action upon commissioners report PARTITION BY COMMISSIONERS. If the parties cannot agree on the partition, the court shall appoint not more than 3 competent and disinterested persons as commissioners to make the partition. Commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. (Sec 3, Rule 69). APPOINTMENT OF COMMISSIONERS. The court appoints not more than 3 competent and disinterested persons as commissioners. PROCEEDINGS BEFORE THE COMMISSIONERS. The commissioners shall: (a) partition the property, (b) if the real estate cannot be divided without prejudice to the interests of the parties, the court may assign it to one of the parties willing to take it, provided he pays to the other parties such amounts as the commissioners deem equitable, unless one of the interested parties asks that the property be sold instead of being assigned, in which case the court shall (c) order the commissioners to sell the property at public sale. COMMISSIONERS REPORT. The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of the real estate to one of the parties, or the sale of the real estate. Upon the filing of the report the clerk of the court shall serve copies on all interested parties with notice that they have 10 days within which to file objections to the findings of the report. COURT ACTION UPON COMMISSIONERS REPORT. Upon the expiration of the 10 day period, the court may upon hearing: (a) accept the report and render judgment in accordance therewith; (b) recommit the report to the commissioners for further report of facts; or (c) set aside the report and render judgment as shall effectuate a fair and just partition of the real estate or its value (where the realty is assigned or sold) between the several owners thereof. (Remedial Law Reviewer, Riguera). f. Judgment and its effects If actual partition of property is made the judgment shall state definitely, by metes and bounds and adequate description, the particular portion of real estate assigned to each party. Effect: Judgment shall be vest in each party to the action in severalty the portion of the real estate assigned to him. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such of such payment and of the assignment of the real estate to the party making the payment. Effect: to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. If the property is sold and the sale confirmed by the court the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchasers. Effect: to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. (Sec 11, Rule 69). Note: A certified copy of judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated. g. Partition of personal property Rule shall apply to partitions of estates composed of personal property, or of both real and personal property. h. Prescription of action 8 years movables 10 years immovables

12. FORCIBLE ENTRY AND UNLAWFUL DETAINER (RULE 70, Rules of Court)

a. Definition and Distinction Forcible Entry is a summary action to recover material or physical possession of real property when a person originally in possession was deprived thereof by force, intimidation, strategy, threat, or stealth (Section 1, Rule 70) Unlawful Detainer is the action that must be brought when possession by a landlord, vendor, vendee, or other person of any land or building is being unlawfully withheld after the expiration or termination of the right to hold, by virtue of any contract, express or implied. It is however not the proper remedy if the purpose is not to recover possession but to exact specific performance of a contract (Mun. of Batangas vs. Santos, et al., L-4012, June 30, 1952) Forcible entry distinguished from Unlawful detainer Forcible entry is based on entry effected by force, intimidation, threat, strategy, or stealth; Illegal detainer is based on unlawful detention by a person who has acquired possession rightfully, but who detains the property after the right to keep possession is ended ( Medel vs Militante, 41 Phil. 526, 530 (1921)) Possession of defendant is inceptively lawful but becomes illegal by reason of termination of right of possession Demand is jurisdictional Plaintiff need not have been in prior physical possession; 1-year period from date of last demand.

the action is to recover possession founded upon illegal possession from the beginning; No requirement of previous demand for defendant to vacate premises; Plaintiff must prove that he was in prior physical possession until he was deprived thereof by defendant; 1-year period counted from date of actul entry or when plaintiff learned thereof.

b. Distinguished from accion publiciana and accion reinvindicatoria. Forcible entry and Unlawful detainer is an action which could be brought in the MTC within one year from unlawful deprivation or withholding of possession, and has for its object the recovery of the physical possession. Accion publiciana is a plenary action for possession which could be brought in the RTC or MTC after 1 year, or within 1 year in cases not covered by Rule 70, and has for its object the recovery of the better right to such possession. Accion reinvindicatoria is an action to recover ownership and possession may be brought in the RTC or MTC (Reyes vs Sta. Maria, 91 SCRA 164 (19790). c. How to determine jurisdiction in accion publiciana and accion reinvindicatoria. Accion publiciana is the plenary action to recover the right of possession when dispossession has lasted for more than one year or when dispossession was effected by means other than those mentioned in Rule 70, and should be filed in the regional trial court. (De Leon vs. Court of Appeals, 245 SCRA 166) After the expiration of one year from the date of unlawful deprivation, the possession of real property may be recovered by means of accion publiciana or plenario de posesion filed in the Court of First Instance (Quinones vs. Padrigon, 71 Phil. 138; Baguioro vs. Barrios, 77 Phil. 120)

Where the allegations of the complaint clearly establish a case for the recovery of ownership, and not merely one of the recovery of possession de facto, the case falls within the jurisdiction of the Court of First Instance. In other words, as the averments of the complaint sufficiently and properly plead the plaintiffs claim of ownership, the issue of possession becomes a mere elemental attribute of such ownership (Bautista vs. Fernandez, 38 SCRA 548). Where the plaintiffs premised their rights of action upon their alleged title to the land described in the complaint and the defendant contested such allegation, the determination of such case is within the exclusive jurisdiction of the Court of First Instance (now RTC) (Ago vs. Buslon, 10 SCRA 202). d. Who may institute the action and when; against whom the action may be maintained. Q: Who may bring action for forcible entry and unlawful detainer? For Forcible Entry: A person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth. For Unlawful detainer: Lessor, vendor, vendee, or other person against whom possession of any land or building is unlawfully withheld; Legal representatives or assignees of any such lessor, vendor, vendee, or other person against whom possession of any land or building is unlawfully withheld. Also, under Article 487 of the Civil Code, any one of the co-owners may bring an action in ejectment.

Against whom may action be maintained? The action of forcible entry and detainer may be maintained only against one in possession at the commencement of the action. Tenant with right of possession may bring action against another tenant. Vendor may bring action for ejectment against vendee upon failure to pay the instalment due. Forcible entry and unlawful detainer lie even against the very owner of property.

e. Pleadings allowed. The only pleading allowed to be filed are the COMPLAIT, COMPULSORY COUNTERCLAIM and CROSS-CLAIM pleaded in the answer and the answer thereto. All pleading shall be verified (Section 4, Rule 70) f. Action on the complaint. After examination of the allegations in the complaint and evidences, the court may dismiss the case outright on any grounds for the dismissal of a civil action which are apparent therein. Issue summons, if no ground for dismissal is found (Sec. 5, Rule 70) g. When demand is necessary A demand is a pre-requisite to an action for unlawful detainer when the action is for failure to pay rent due or to comply with the conditions of his leas. And not where the action is to terminate the lease because of the expiration of it term (See Liamco vs Diaz, 75 Phil. 672 (1946)).

When prior demand in unlawful detainer actions is not required: a. when the purpose of action is to terminate lease because of expiry of term and not because of failure to pay rental or to comply with terms of lease contract; b. when the purpose of suit is not for ejectment but for enforcement of terms of contract; c. when defendant is not a tenant but a pure intruder. Note: In all other cases, there must be a demand: 1. To pay or to comply with conditions of the lease, AND 2. To vacate by written notice on the person in the premises or by posting such notice on the premises if no person is found thereon and this is a condition precedent to the filing of the cases; ORAL demand is not permitted. 3. If demand is in the alternative (pay OR vacate), this is NOT the demand contemplated by the Rules h. Preliminary injunction and preliminary mandatory injunction. In accordance with the provisions of Rule 58, the court may grant preliminary injunction to prevent the defendant from further acts of dispositions against the plaintiff. Within 5 days from the filing of the complaint, by presenting a motion a possessor deprived of his possession through forcible entry or unlawful detainer may ask from court to issue a writ of preliminary mandatory injunction to restore him in his possession.

The court shall decide the motion within 30 days from the filing thereof (Section 15, Rule 70). General Rule: Writ of preliminary mandatory injunction may be issued against an interloper. If the petitioner asking for an injuction is the registered owner and the oppositor is an interloper or squatter who has no possessory right to the land in litigation, a writ of preliminary mandatory injunction may be issued pendent lite (Mara Inc., vs Estrella, 65 SCRA 471 (1975)). i. Resolving defense of ownership. When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession (Section 16, Rule 70). *Guidelines in the implementation of section 16 discussed in case of Refugia vs CA, 258 SCRA 347, 365-366 (1996) by the SC. j. How to stay the immediate execution of judgment. General Rule: Judgment against the defendant is immediately executor. Exceptions: The defendant may stay the immediate execution by: Perfecting an appeal and filing a supersedeas bond approved by MTC to pay for rents, damages and cost accruing down to the time of the judgment appealed from, and Depositing with the RTC, during the pendency of the appeal, the adjudged amount of rent due from time to time under contract, if any, or in the absence of a contract, the reasonable value of the use and occupation of the property for the MTC, on or before the 10th day of each succeeding month or period (Chua vs CA, 286 SCRA 437 (1998).

Supersedeas bond to stay execution of judgment against defendant he must perfect an appeal and file a supersedeas bond to pay the rents, damages and costs accruing down to the time appealed from and DEPOSIT with appellate court the AMOUNT OF RENT due from time to time if with contract. If without contract, deposit with RTC the REASONABLE VALUE for the use and occupation of the premises. If defendant fails to make these payments from time to time during the pendency of the appeal, appellate court, upon plaintiffs motion, shall order the execution of judgment appealed from with respect to the restoration. k. Summary procedure; prohibited pleadings. All actions for forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered, shall be governed by the summary procedure. Exception: Cases covered by agricultural tenancy laws or when the law otherwise expressly provides (Sec. 3, Rule 70).

The following petitions, motions, or pleadings shall not be allowed in forcible entry and unlawful detainers case: Motion to dismiss the complaint.

Exception: 1. 2. 3. 4. lack of jurisdiction; or failure to comply with referral conciliation under section 12; Motion for a bill of particulars; Motion for a new trial, or for reconsideration of a judgment, or for reopening of trial; 5. Petition for extension of time to file pleadings, affidavits or any other papers; 6. Petition for relief from judgment; 7. Memoranda; 8. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 9. Motion to declare the defendant in default; 10. Dilatory motions for postponement; 11. Reply; 12. Third-party complaints; 13. Interventions (section 13, Rule 70) 13.CONTEMPT (Rule 7I, Rules of Court) a. Kinds of contempt Direct contempt misbehaviour in the presence of or so near a court to obstruct or ton interrupt the proceedings before the same (section 1) Indirect contempt misbehaviour and disobedience of an individual not necessary in the presence or near of a court. It is written charge against the former (section 3) Criminal contempt conduct that is directed against the authority and dignity of a court or of a judge. Civil contempt failure to do something ordered to be done by a court in a civil action for the benefit of the opposing party. b. Purpose and nature of each

The power to punish for contempt has two purposes: a. Proper punishment of the guilty party for his disrespect to the court; b. Compulsory performance of some act or duty required of him by the court and which he refuses to perform. Contempt proceedings are criminal in nature in proceeding against a person alleged to be guilty of contempt of court, it is not to be forgotten that such proceedings are commonly treated as criminal in their nature even when the acts complained of are incidents of civil actions. For this reason, the mode of procedure and rules of evidence in contempt proceedings are assimilated as far as practicable to those adapted to criminal prosecutions (Lee Yick Hon vs Collector of Customs, 41 Phil. 548)

c. Remedy against direct contempt; penalty General Rule: The person adjudged in direct contempt may not appeal therefrom. Exception: He may avail of remedies of CERTIORARI; or He may avail of remedies of PROHIBITION; With a stay execution of judgment pending the resolution of the petition by filing of a bond (Section 2; Austria vs Nasaquel, 20 SCRA 1247 (1967); Royeca vs animas, 71 SCRA 1 (1976) A person guilty of misbehaviour may be summarily adjudged in contempt and punished by a fine not exceeding P2,000 or imprisonment not more than 10 days or both. If contempt has been committed against RTC or equivalent rank or high. Not more than P200 or not exceeding 1 year of imprisonment or both. If it be a lower court (section 1).

d. Remedy against indirect contempt; penalty The person adjudged of a contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition (Section 2, Rule 71) A fine not exceeding P30,000 or imprisonment not exceeding 6 months or both may be imposed upon a person guilty of indirect contempt and committed against RTC or a court of equivalent rank or higher. If it is committed against lower court, a fine of not more than P5,000 or imprisonment not exceeding one month, or both. If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved (Section 7, Rule 71). e. How contempt proceedings are commenced There are two modes of commencing a proceeding for indirect contempt, to wit: An order or formal charge by the court requiring the respondent to show cause why he should not be punished for contempt, and A verified petition charging indirect contempt with supporting particulars and certified true copies of the necessary documents and papers (section 4, Rule 71) f. Acts deemed punishable as indirect contempt

Grounds for indirect contempt: Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; Disobedience of or resistance to a lawful writ, process order, or judgment of a court; Any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct contempt; Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; Assuming to be an attorney or an officer of a court, and acting as such without authority; Failure to obey a subpoena duly served; The rescue or attempted rescue of a person or properly in the custody of an officer by virtue of an order or process of a court held by him. g. When imprisonment shall be imposed When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court until he performs it (Section 8, Rule 71) h. Contempt against quasi-judicial bodies Rule 71 applies suppletorily to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions. The RTC of the place where the contempt was committed shall have jurisdiction over such charges.