CIVIL PROCEDURE cases, shall be uniform for all courts of the same grade,

and shall not diminish, increase, or modify substantive

Gaviola | Sevilla | Torres rights. Rules of procedure of special courts and quasi-
SY 2020-2021 | 2nd Semester | Remedial Law Review judicial bodies shall remain effective unless disapproved
Dean Alex Monteclar by the Supreme Court.

Recommended book: The same one you used in second Monte: The Rules of Court is a law actually; it has the
year. The only new portion is the 2019 amendment to the force and effect of the law. It is the only law enacted by
1997 rules of civil procedure, which is Rule 6 to 35. the Supreme Court as part of its rule-making power
pursuant to Sec. 5 (5), Article VIII of the 1987 Constitution.
After Rule 35, go back to the old book. You can use the
book of Regalado. Download the 2019 Amendments, you Limitations to the rule-making power of the Supreme
can use them as your codals; they took effect on May 1, Court:
2020. 1) The rules shall be uniform for all courts of the
same grade; and
INTRODUCTION 2) They shall not diminish, increase or modify
substantive rights.
Three branches of Remedial Law:
1. Civil Procedure The Rules of Procedure, which is found in the Rules of
2. Criminal Procedure Court, is applied in our courts of law.
3. Evidence
Courts
RULES OF CIVIL PROCEDURE
What is a court?
Definition of Remedial Law A: A court is an entity or body vested with a portion of
judicial power.
Remedial law is defined as a branch of law which
prescribes the method or procedures of enforcing one’s Why do we say only a “portion of judicial power”?
rights, or obtaining redress for their invasion. A: As we all know, there are different kinds of courts.
When you talk about the regular courts that comprise the
Note: Remedial Law is basically contained in the Rules of judiciary, we have:
Court. It is a procedural law as distinguished from a
substantive law. Procedural laws are generally • The Supreme Court as the highest court;
retroactive. • The Court of Appeals as the second-highest
court;
Topics in the Rules of Court • The Regional Trial Courts; and last,
• The Municipal Trial Courts.
1) Civil Procedure
a. Ordinary Civil Actions – Rules 1-56 We even have special courts like the Sandiganbayan, the
b. Provisional Remedies – Rules 57-61 Shari’a Courts and the family courts. These are special
c. Special Civil Action – Rules 62-71 courts that are considered also as part of the judiciary.
2) Special Proceedings – Rules 72-109
3) Criminal Procedure – Rules 110-127 These courts have specific jurisdictions. That is why the
4) Rules on Evidence – Rules 128-133 entire judicial power is apportioned to the different courts.
5) Legal Ethics – Rules 134-144
Classification of Courts
Rules of Court
A. Superior Court vs. Inferior Court
Sec. 5 (5), Article VIII, 1987 Constitution
SECTION 5. The Supreme Court shall have the following A superior court is one with controlling authority over
powers: other courts, and with an original jurisdiction of its own. An
inferior court is one which is subordinate to another
xxx court, the judgment of which may be reviewed by a higher
tribunal. (From DGST Notes, Civil Procedure, 2018-2019)
(5) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice,
When do we say that one is a superior court or an
and procedure in all courts, the admission to the practice
inferior court?
of law, the Integrated Bar, and legal assistance to the
A: It depends on the power of one court as against the
underprivileged. Such rules shall provide a simplified and
other.
inexpensive procedure for the speedy disposition of
Example: The Municipal Trial Court is a very good clothed with special powers for the performance of
example of an inferior court. The RTC is a superior court specified duties beyond which they have no authority of
compared to an MTC. any kind.

Monte: The concept of superior court/inferior court in the Which court is a court of limited jurisdiction?
old Rules of Court was confined only to the municipal A: We have the municipal trial court. It is a good example
court as the inferior court, and the rest are considered of a court of limited jurisdiction. Jurisdiction of the MTCs
superior courts. Nowadays, our definition of a is limited only to a certain amount or value of the property
superior/inferior court depends on how a court stands as involved.
against another.
The RTC is the best example of a court of general
So, an RTC can be both a superior and an inferior court. jurisdiction. You will notice later on, when we go to the
It is superior to the MTC, but inferior to the CA. In the RTC, you will notice that the jurisdiction of the RTC is very
same way, the CA can also be a superior or inferior court. broad, and entertains almost all kinds of cases. That’s
It is inferior to the SC, but it is a superior court to the RTCs why it’s called a court of general jurisdiction.
and the MTCs. However, the SC can only be a superior
court. Monte: In fact, there’s a provision in the jurisdiction of the
RTC that all other cases not falling in the jurisdiction of a
Thus, only an MTC is a genuine inferior court, and only particular court will be filed in the RTC. That’s why they
the SC is a genuine superior court. say that the RTC is the catcher of all cases.

B. Original Courts vs. Appellate Courts D. Constitutional Courts vs. Statutory Courts

A court is one with original jurisdiction when actions or The basis of the classification here is how the court is
proceedings are originally filed with it. A court has created. If created by the constitution, then it’s a
appellate jurisdiction if it has the power of review over the constitutional court. But if it is created by statute or by
decisions or orders of a lower court. (DGST Notes, Civil Congress, then it is a statutory court.
Procedure, 2018-2019)
Monte: In our country, there is only one constitutional
Original Courts court, and that is the Supreme Court. The rest are all
The case is to be filed in that particular court as an original created by statutes, and are thus statutory courts.
action. It is there where you commence your action.
So what then is the difference between the two aside
Example: When you file an ejectment case – ejectment from their creation?
belongs to the exclusive and original jurisdiction of the A: The Supreme Court, being the only constitutional
municipal court. So, the municipal court is the original court, cannot be abolished by Congress.
case in that case. You can appeal its ruling to the RTC.
The RTC there is the appellate court. Monte: We all know that we cannot change the
constitution without a constitutional amendment. And it
In the same way, if a case is filed or commenced in the must have the conformity of the people through a
RTC as an original action, and you are not contented with plebiscite. A statutory court – when a court is created by
the decision of the RTC, you appeal its decision to the CA. statute or laws enacted by Congress – can be abolished
And so on and so forth, until you reach the Supreme anytime by Congress. Congress can abolish the CA, the
Court. RTC, the MTCs, and even those special courts because
they are mere creations of Congress.
C. Courts of General Jurisdiction vs. Courts of
Limited Jurisdiction What about the Sandiganbayan? Is it not a
constitutional court?
Courts of general jurisdiction are those with A: When you read the constitution, it says that there shall
competence to decide on their own jurisdiction and take be an anti-graft court. A specialized court to be called
cognizance of all cases, civil and criminal, of a particular “Sandiganbayan”. But the constitution provides that there
nature. will be a constitutional court to be created by Congress.
So, it is actually Congress that created the SB, but upon
A court may also be considered general if it has the the mandate of the constitution.
competence to exercise jurisdiction over cases not falling
within the jurisdiction of any court, tribunal person, or body So that’s why, the Sandiganbayan is a constitutionally-
exercising judicial or quasi-judicial functions. mandated court, but it is statutorily created. The powers
and functions of the SB is defined by law that created it,
Courts of a special (limited) jurisdiction are those
which have jurisdiction only for a particular purpose or are
or P.D. No. 14861, as amended. The powers of the SB What is equity?
can even be clipped by Congress, but they cannot abolish Equity denotes a concept of fairness, justness and right
the SB because it is mandated by the constitution. dealing among men. It regards the spirit of the law and
not its letter, the intent rather than the circumstance.
E. Civil Courts vs. Criminal Courts
Do we always apply equity to a case?
Civil Court Criminal Court Equity is not applied in all cases. It does not apply when
One that only entertains Only criminal cases can there is a law applicable to a case.
civil cases. be filed in that court.
Are Philippine courts ‘courts of law’, or ‘courts of
Monte: We do not have these in the Philippines. Because equity’?
all our trial courts (RTCs and MTCs) are both civil and Philippine courts are courts of law and equity.
criminal courts. We do not anymore have a specialized
criminal or civil court. Before, there used to be a Our courts are courts of law and equity. What does
specialized criminal court. I remember, when I was still a that mean or imply? Can equity be applied in the
law student, before the Judiciary Reorganization Act of presence of law? When there is law, where does
1980 was approved, there used to be a circuit criminal equity come in?
court, which we called “CCC”. It’s a specialized court that DJL: Refer to Sps. Poon vs. Prime Savings Bank.
only accepts criminal cases, but it should be a criminal
case which is punishable by imprisonment of more than 6 “We are a Court of both law and equity; We cannot
years. So, these are what we call grave offenses. sanction grossly unfair results without doing violence to
Our solemn obligation to administer justice fairly and
But under the Judiciary Reorganization Act, the CCC was equally to all who might be affected by our decisions.”
abolished and its powers transferred to the RTCs.
G. Regular vs. Special Courts
F. Courts of Law vs. Courts of Equity
Regular Courts
In other countries, they have courts of law and they also Regular courts are those that belong to the judicial branch
have courts of equity. – the SC, the CA, the RTCs and the MTCs.

Courts of Law Courts of Equity Special Courts

One that decides cases One that decides cases The Sandiganbayan, the Shari’a Courts, the Court of Tax
on the basis of law. on the basis of equity. Appeals (CTA), or the family courts.

Monte: Here in our country, all our courts are both Jurisdiction
courts of law and equity. We don’t have a specialized
court of equity. If you recall, in our discussion on the When we talk about courts, they perform their functions
provisions of the Civil Code, Arts. 8 and 9, there’s a or their authority to decide a case on the basis of
provision there that says a judge, when confronted with a jurisdiction.
problem which has no law applicable to it as a basis for a
decision, the judge must still have to decide the case by What do you mean by jurisdiction?
all means. If there is no law applicable, then the judge has A: The authority of the court to hear and decide a case on
to decide on the basis of equity. the basis of the law.

This is why we have the legal saying, “equity follows the Monte: The term “jurisdiction” was derived from the Latin
law.” Which simply means, the judge should decide the terms juris (law) and dico (to speak).
case on the basis of a law, and in the absence of a law,
the judge may use the principles of equity. This was during the Roman times. If you recall, the
Roman soldiers would go the houses of any of Rome’s
DGST Notes, Civil Procedure 2018-2019: citizens in order to conduct a raid. They would go to the
house, and knock on the doors, and inform the occupants
Equity Jurisdiction that they are going to raid the house on the authority of
The power of the court to resolve issues presented in a the king (emperor). Or it’s just like saying, it’s the authority
case in accordance with the natural rules of fairness and of law, because the king is the law of the land.
justice, and in the absence of a clear, positive law
governing such issues.

CREATING A SPECIAL COURT TO BE KNOWN AS

"SANDIGANBAYAN" AND FOR OTHER PURPOSES
Now, that action of the Roman soldiers, when they say, “I Original vs. Appellate Jurisdiction
enter your house by the authority of the king” is just like
saying “I have the jurisdiction to this.” Original Jurisdiction
Means that a particular case should only be commenced
Because, jurisdiction of the court is defined as the in a particular court.
authority of the court to hear and decide a case on the
basis of the law. Example:
1. Ejectment. It falls within the original jurisdiction in the
Determining the Jurisdiction of Courts MTC.
2. If you file a case for a collection of a sum of money,
Except for the SC, we all know that all other courts in the and the amount involved is more than P1Mn, the RTC
country are created by law. And that very same law that is the court of original jurisdiction.
created that court will also define the extent of the power
and authority of said court. Monte: If you are not contented with the decision of the
court with original jurisdiction, you may elevate that by
So, when Congress created RTCs or the CA, or the way of an appeal to the next higher court. In which case,
MTCs, the laws creating these courts also provide what the original jurisdiction of the RTC can be subject to
kinds of cases can be filed in each court. And that is what review by the CA, which has appellate jurisdiction over the
is meant by jurisdiction. RTC.

The court’s jurisdiction to hear and decide a case is based Exclusive vs. Concurrent Jurisdiction
on law. In other words, jurisdiction is conferred by law.
Exclusive Jurisdiction Concurrent Jurisdiction
Error in Exercise of Means that a case can Means that a case can be
Error of Jurisdiction
Jurisdiction only be filed in a certain filed in two or more courts.
The court has no The court has jurisdiction. court, and not in any other
jurisdiction, but it decided However, it mistakenly court. That court has Example: Petition for
on the case. appreciated the evidence, exclusive jurisdiction to certiorari – a special civil
or wrongly applied the law hear and decide a case. action of certiorari,
Remedy: Rule 65 on a case. prohibition, mandamus,
Example: Ejectment quo warranto. These
Remedy: Ordinary belongs to the original and cases belong to the
appeal, then PFR on exclusive jurisdiction of concurrent jurisdiction of
certiorari under Rule 45. the MTC. the RTC, the CA, and the
SC. You can file it any of
Different Types of Jurisdiction: the three (3) courts.
a) General vs. Special vs. Limited
b) Original vs. Appellate Original jurisdiction means jurisdiction to take
c) Exclusive vs. Concurrent cognizance of a case at its inception, try it and pass
d) Delegated jurisdiction of the MTC judgment upon the law and facts. Exclusive jurisdiction
precludes the idea of co-existence and refers to
General vs. Special vs. Limited Jurisdiction jurisdiction possessed to the exclusion of others.

Monte: As what I have mentioned a while ago, the RTC Concurrent jurisdiction, also called coordinate
is a court of general jurisdiction, while the MTC is a court jurisdiction, this refers to the power of different courts to
of special jurisdiction. take cognizance of the same subject matter. However, the
court first taking cognizance of the case assumes
Why is the RTC a court of general jurisdiction? jurisdiction to the exclusion of the other courts.
A: Because the law says so. The law creating the RTC
vests upon them that general jurisdiction. Delegated Jurisdiction of the MTC

And why is the MTC a court of special or limited This consists of that jurisdiction which normally belongs
jurisdiction? to the RTCs, but by provision of law, under the Judiciary
A: Again, it’s because it’s the law that determines that it Reorganization Act, these cases can be delegated to the
shall have only a limited jurisdiction. MTCs.

Example: Land registration cases, where the value of the

property involved is less than P100k, and there is no
dispute or controversy (meaning there is no oppositor).
That matter can be tried in the MTCs instead of the RTC. “neither it is conferred by silence.” The lack of
This belongs to the delegated jurisdiction of the MTCs. jurisdiction can be raised for the first time even on
appeal.
Jurisdiction vs. Venue
So, if the case was filed in a court which does not
Monte: Jurisdiction should be distinguished from venue. have jurisdiction over the subject matter, and you
were not able to discover that right away (you are the
Jurisdiction Venue defendant for example), you discovered it only after
Jurisdiction is the Venue refers to the place the court decided on the case, you can raise that
authority to hear and where the case is to be issue of lack of jurisdiction even for the first time on
decide a case. tried. appeal.
Jurisdiction is a matter of Venue is a procedural
substantive law. matter. The only exception here is that exceptional case of
Jurisdiction is fixed by Venue may be conferred Tijam vs. Sibonghanoy.
law, and cannot be by the agreement of the
conferred by the parties. parties. TIJAM VS. SIBONGHANOY
Jurisdiction establishes a Venue establishes the Here, the court applied the principle of “Estoppel by
relation between the relation between parties. Laches” on the issue of jurisdiction.
court and the subject
matter. This case was actually filed here in Cebu City, in a
CFI here in Cebu City. But the claim was very, very
Venue small, and the claim was cognizable by the municipal
Refers to the place of trial, while jurisdiction refers to the court. The claim was only P1,700 something pesos,
court that will try the case. which is obviously not within the jurisdiction of the
CFI. This was an old case, there was no RTC yet at
Example: Ejectment. It falls under the jurisdiction of the the time. So, the case was filed in the CFI. The
MTC. But which one? There are many MTCs all over the defendant did not notice it until the court decided on
country. That would now be a matter of venue. the case and ordered the defendant to pay, since it
was a money claim. The defendant appealed the
Under the rules of venue, when the case is a real action, case to the CA, but they did not raise the issue of
the case has to be filed in the place where the property is jurisdiction. Until the CA decided the case, and they
located. If the parcel of land is located in Cebu City, but brought the matter to the SC. It was only there that
the case was filed in an MTC in Mandaue City, the case they discovered that the CFI does not have
will be dismissed not because of lack of jurisdiction, but jurisdiction over the subject matter. So, they raised
because of improper venue. the issue of jurisdiction for the first time on appeal to
the SC.
Venue may be conferred by agreement provided that it
is still filed in a court which has jurisdiction over the case. The SC said, dili na na mahimo. You already wasted
so much time and effort of the court. So, you would
Elements of Jurisdiction no longer be allowed to raise that issue of lack of
(Requisites for the Exercise of Jurisdiction) jurisdiction for the first time before the SC. You lost
that right by laches.
1) Jurisdiction over the subject matter
2) Jurisdiction over the person of the parties You know what is laches? You studied that in
3) Jurisdiction over the issues of the case obligations and contracts?
4) Jurisdiction over the res Laches means you lost the right to prosecute a case
because of the unreasonable length of time within
a. Jurisdiction over the subject matter which you did not raise that issue. And laches is like
the older brother of prescription. The difference is that
− This is conferred by law, and not by agreement of the in prescription, the period is fixed by law whereas in
parties. Neither is it conferred by silence, except laches, you lose your right of action because you
through “Estoppel by Laches”. (Tijam vs. failed to avail of that action for an unreasonable
Sibonghanoy) length of time, that it causes already so much time
Monte: This means that if the court does not have and effort spent, without you raising that matter, so
jurisdiction over the subject matter of the case, the you have to suffer the consequences.
court cannot proceed to hear the case. In fact, even if
the defendant did not object or file a motion to Note: However, this is still the exceptional rule. The
dismiss, the court can motu propio dismiss the case. rule remains that you can still raise the issue of
If the court discovers that if does not have jurisdiction, jurisdiction even for the first time on appeal, provided
it can motu propio dismiss the case. That’s why I said there is no unreasonable delay. Kani gung Tijam,
niabot ni sa SC after so many years, and mao pa nila such relief, repudiate or question that same
gi-raise ang issue of jurisdiction. jurisdiction (Dean vs. Dean, 136 Or. 694, 86 A.L.R.
79). In the case just cited, by way of explaining the
TIJAM VS. SIBONGHANOY DIGEST rule, it was further said that the question whether the
court had jurisdiction either of the subject-matter of
FACTS: The action at bar, which is a suit for collection the action or of the parties was not important in such
of a sum of money in the sum of exactly P 1,908.00, cases because the party is barred from such conduct
exclusive of interest filed by Serafin Tijam and not because the judgment or order of the court is valid
Felicitas Tagalog against Spouses Magdaleno and conclusive as an adjudication, but for the reason
Sibonghanoy and Lucia Baguio, was originally that such a practice can not be tolerated — obviously
instituted in the Court of First Instance of Cebu on July for reasons of public policy.
19, 1948. A month prior to the filing of the complaint,
the Judiciary Act of 1948 (R.A. 296) took effect Furthermore, it has also been held that after
depriving the Court of First Instance of original voluntarily submitting a cause and encountering an
jurisdiction over cases in which the demand, adverse decision on the merits, it is too late for the
exclusive of interest, is not more than P 2,000.00 loser to question the jurisdiction or power of the court
(Secs. 44[c] and 86[b], R.A. 296.) (Pease vs. Rathbun-Jones etc., 243 U.S. 273, 61 L.
Ed. 715, 37 S. Ct. 283; St. Louis etc. vs. McBride, 141
The case has already been pending now for almost U.S. 127, 35 L. Ed. 659). And in Littleton vs. Burgess,
15 years, and throughout the entire proceeding the 16 Wyo. 58, the Court said that it is not right for a party
appellant never raised the question of jurisdiction until who has affirmed and invoked the jurisdiction of a
the receipt of the Court of Appeals' adverse decision. court in a particular matter to secure an affirmative
relief, to afterwards deny that same jurisdiction to
Considering that the Supreme Court has the escape a penalty.
exclusive appellate jurisdiction over all cases in which
jurisdiction of any inferior court is in issue, the Court Upon this same principle is what We said in the three
of Appeals certified the case to the Supreme Court cases mentioned in the resolution of the Court of
along with the records of the case. Appeals of May 20, 1963 (supra) — to the effect that
we frown upon the "undesirable practice" of a party
ISSUE: Whether or not the appellant's motion to submitting his case for decision and then accepting
dismiss on the ground of lack of jurisdiction of the the judgment, only if favorable, and attacking it for
Court of First Instance during the pendency of the lack of jurisdiction, when adverse — as well as in
appeal will prosper. Pindañgan etc. vs. Dans, et al., G.R. L-14591,
September 26, 1962; Montelibano, et al., vs. Bacolod-
RULING: A party may be estopped or barred from Murcia Milling Co., Inc., G.R. L-15092; Young Men
raising a question in different ways and for different Labor Union etc. vs. The Court of Industrial Relation
reasons. Thus we speak of estoppel in pais, or et al., G.R. L-20307, Feb. 26, 1965, and Mejia vs.
estoppel by deed or by record, and of estoppel by Lucas, 100 Phil. p. 277.
laches.
The facts of this case show that from the time the
Laches, in a general sense is failure or neglect, for an Surety became a quasi-party on July 31, 1948, it
unreasonable and unexplained length of time, to do could have raised the question of the lack of
that which, by exercising due diligence, could or jurisdiction of the Court of First Instance of Cebu to
should have been done earlier; it is negligence or take cognizance of the present action by reason of
omission to assert a right within a reasonable time, the sum of money involved which, according to the
warranting a presumption that the party entitled to law then in force, was within the original exclusive
assert it either has abandoned it or declined to assert jurisdiction of inferior courts. It failed to do so. Instead,
it. at several stages of the proceedings in the court a quo
as well as in the Court of Appeals, it invoked the
The doctrine of laches or of "stale demands" is based jurisdiction of said courts to obtain affirmative relief
upon grounds of public policy which requires, for the and submitted its case for a final adjudication on the
peace of society, the discouragement of stale claims merits. It was only after an adverse decision was
and, unlike the statute of limitations, is not a mere rendered by the Court of Appeals that it finally woke
question of time but is principally a question of the up to raise the question of jurisdiction. Were we to
inequity or unfairness of permitting a right or claim to sanction such conduct on its part, We would in effect
be enforced or asserted. be declaring as useless all the proceedings had in the
present case since it was commenced on July 19,
It has been held that a party cannot invoke the 1948 and compel the judgment creditors to go up their
jurisdiction of a court to sure affirmative relief against Calvary once more. The inequity and unfairness of
his opponent and, after obtaining or failing to obtain this is not only patent but revolting.
 Labor Relations Commission. So the RTC can
− The jurisdiction over the subject matter is determined dismiss the case outright on the basis of the
by the allegations in the complaint. allegations in the complaint.
Exception: Forcible entry and unlawful detainer case
where the allegations in the complaint shows b. Jurisdiction over the person of the parties
agricultural tenancy agreement.
Upon plaintiff By the filing of the complaint
Monte: To determine whether the court has Upon defendant By:
jurisdiction, you read the complaint and based on 1. Service of summons, or
what is alleged there, you will know whether the court 2. Voluntary appearance or
has jurisdiction to hear a case. It is not based on the submission to the court’s
answer of the defendant. jurisdiction

Illustration. I filed a case against you for collection of c. Jurisdiction over the issues of the case
sum of money. I said, you owe me P500k and you did
not pay me. That is now within the jurisdiction of the − Determined by the allegations in the complaint.
RTC. So, I filed the case of the RTC. The defendant
answered, “No, my indebtedness is only P200k, When can you know the issues of the case?
which is within the jurisdiction of the MTC.” A: You can only know the issues of the case once an
answer is filed by the defendant.
Will the RTC dismiss the case because the
defendant says that the true amount is P200k? Monte: After the issues are joined, then that is the only
A: No. The court, in resolving the issue whether it has time that there is pre-trial. Kanus-a man mag-pre-trial?
jurisdiction, will only read the allegations in the Only when the issues have been joined. And when are the
complaint. And on the basis of the allegations, ask, issues of the case joined? It is only upon the filing of the
“Assuming this to be true, does this court have answer, and the court will now determine what are the
jurisdiction?” issues.

If, from the allegations in the complaint, it is d. Jurisdiction over the res
apparent that the court does not have
jurisdiction? Monte: This refers to the jurisdiction of the court over the
A: Then, the court can motu propio dismiss the case. sub-thing in question, or the object of the litigation.

IGNACIO VS. CFI OF BULACAN − It is acquired by the actual or constructive seizure of

G.R. No. L-27897, October 29, 1971 the thing in question, thus, placing it in custodia
legis, as in attachment or garnishment. If the court
The case filed by the plaintiff was a case for acquires jurisdiction over the res, it can acquire
ejectment. He filed it in the MTC. But in the allegations jurisdiction even if the defendant has not received the
of the complaint, it appears that the relationship summons.
between the plaintiff and the defendant is that of an
agricultural tenant and agricultural landlord. Because
it was mentioned there that the subject matter was a
parcel of land tilled by the defendant. So obviously,
it is not within the jurisdiction of the MTC. It should be
filed in the agrarian court, which is now called the
DARAB, or the Department of Agrarian Reform
Adjudication Board.

− Where the action turns out to be an unfair labor

practice case, the RTC has no jurisdiction.

MINDANAO RAPID CO. VS. OMANDAM

G.R. No. L-23058, November 27, 1971

The case was filed in the RTC, but it turned out that
the basis of the plaintiff’s case arose out of an unfair
labor practice case, not an ordinary contract. There
exists an EE relationship between the plaintiff and the
defendant. So, the case should be filed in the labor
court, which is known as the NLRC, or the National
 Hierarchy of the Courts Regular Courts
Source: DGST Notes, Civil Procedure, 2018-2019 1) Supreme Court
2) Court of Appeals
3) Regional Trial Court
4) MeTC, MTCC, MTC, MCTC

Special Courts
1) Court of Tax Appeals (RA 1125)
2) Sandiganbayan (PD 1486, as amended)
3) Shari’a District Court and Shari’a Circuit Courts
(PD 1083, otherwise known as the “Code of
Muslim Personal Law)
4) Family Courts

Monte: There are four regular courts, but the special

courts I have mentioned are also considered as part of
our judiciary. The rest that perform judicial functions are
no longer part of the judiciary.

Examples:
1. Labor courts
2. Agrarian courts

They are not considered part of the judiciary. They belong

to the executive branch of the government. They are
entities vested by law with the power to settle disputes.
They are called quasi-judicial bodies.

Specific Jurisdictions of the Regular Courts

These regular courts are all created by the Judiciary

Reorganization Act of 1980, except for the Supreme
DOCTRINE OF JUDICIAL HIERARCHY
Court.
This is an ordained sequence of recourse to courts vested
Supreme Court
with concurrent jurisdiction, beginning from the lowest, on
to the next highest and ultimately to the highest. This
What is the power and jurisdiction of the Supreme
hierarchy is determinative of the venue of appeals, and is
Court?
likewise determinative of the proper forum for petitions for
A: The Supreme Court has judicial and administrative
extraordinary writs. This is an established policy
powers:
necessary to avoid inordinate demands upon the Court’s
1) Judicial power – refers to the power of the SC to
time and attention which are better devoted to those
decide a case;
matters within its exclusive jurisdiction, and to preclude
2) Administrative power – refers to the power of
the further clogging of the Court’s docket.
the SC to exercise control and supervision over
all other lower courts.
TN: Concurrent jurisdiction is a precondition; this operates
only when different courts have concurrent jurisdiction
Judicial Powers of the Supreme Court (Jurisdiction of
over the case.
the Supreme Court)
Exception:
Monte: The judicial powers of the Supreme Court are
Presence of exceptional and compelling reasons justified
found in Article VIII of the 1987 Constitution. The judicial
a disregard of the rule which must be clearly and
powers of the SC can be further classified into cases
specifically set out in the petition.
belonging to its:
1) Original jurisdiction; and
Source: DGST Notes, CivPro, 2018-2019
2) Appellate jurisdiction
A. Original Jurisdiction a question of law; otherwise it is a question of fact.
(Leoncio vs. De Vera, G.R. No. 176842, Feb. 18, 2008)
The Supreme Court shall have the following powers:
Monte: Generally, the SC, in the exercise of its appellate
1) Exercise original jurisdiction over cases affecting jurisdiction, will only entertain questions of law and not
ambassadors, other public ministers and consuls, questions of fact.
and over petitions for certiorari, prohibition,
mandamus, quo warranto and habeas corpus (. (Art. The SC has time and again reminded us that it is a trier of
VIII, Sec. 5, 1987 Constitution) law and not a trier of facts.

Monte: Take note that these petitions I mentioned are How do you know if it’s a question of law or a
special civil actions found in Rule 65, which can also question of fact?
be filed in the CA and RTC. That’s why these petitions A: A question of fact involves the calibration of the
belong to the concurrent jurisdiction of the SC, CA evidences presented by both parties to ferret out the truth.
and the RTC.
Normally, in a case, the plaintiff and the defendant will
B. Appellate Jurisdiction have conflicting versions of what are really the facts of the
case.
The SC’s appellate jurisdiction consists of its power to
review, revise, reverse, modify or affirm on appeal or by So, if you are the judge, if you are confronted with
certiorari, as the law or the Rules of Court may provide, conflicting versions of the fact of the case, what will
final judgments and orders of lower courts in: you do?
A: You conduct a hearing. Let the plaintiff present
1) All cases in which the constitutionality or the validity evidence to support his claims that the facts are as he
of any treaty, international or executive agreement, says they are. After the plaintiff, you also let the defendant
law, presidential decree, proclamation, order, present evidence to support his or her allegations as to
instruction, ordinance or regulation (Memory Aid: what are the true facts of the case. And after that, you will
POOR-LIT-PIE) is in question; try to calibrate the evidences presented by the parties,
both testimonial and documentary, and decide for yourself
2) All cases involving the legality of any tax, impost, what are the facts of the case. Now, that is a question of
assessment, or toll, or any penalty imposed in relation fact. Whether this (the claims of either party, in light of the
thereto (Memory Aid: TIm-Ass-ToP); presented evidence) is correct or this is wrong, that is a
question of fact.
3) All cases in which the jurisdiction of any lower court is
in issue; Monte: After determining the facts, the judge will now
determine what law will be applied. That is now a question
4) All criminal cases in which the penalty imposed is of law. You can only raise questions of law in the SC.
reclusion perpetua or higher; and
From the MTC, you can raise questions of fact to the RTC.
5) All cases in which an error or question of law is From the RTC, you can also raise questions of fact to the
involved. CA. But from the CA to the SC, you can normally only
raise questions of law. That the CA and the RTC, for
Questions of Law vs. Questions of Fact example, have committed an error in the appreciation of
facts of the case, and that becomes a question of law.
A question of law arises when there is doubt as to what
the law is on a certain state of facts, while there is a GEN: The SC will only entertain questions of law.
question of fact when the doubt arises as to the truth or XPN: The SC will admit questions of fact in exceptional
falsity of the alleged facts. For a question to be one of law, circumstances, such as:
the question must not involve an examination of the 1) Where the findings are grounded entirely on
probative value of the evidence presented by the litigants speculation, surmises or conjectures;
or any of them. The resolution of the issue must rest solely 2) When the inference made is manifestly mistaken,
on what the law provides on the given set of absurd or impossible;
circumstances. Once it is clear that the issue invites a 3) When there is grave abuse of discretion;
review of the evidence presented, the question posed is 4) When the judgment is based on a misapprehension
one of fact. Thus, the test of whether a question is one of of facts;
law or of fact is not the appellation given to such question 5) When the finding of facts are conflicting;
by the party raising the same; rather, it is whether the 6) When, in making its findings, the CA went beyond the
appellate court can determine the issue raised without issues of the case, or its findings are contrary to the
reviewing or evaluating the evidence, in which case, it is admissions of both the appellant and the appellee;
7) When the findings are contrary to the trial court;
8) When the findings are conclusions without citation of thereof, and must promulgate its decision within 30
specific evidence on which they are based; days from its filing. (Art. VII, Sec. 18 (3), 1987
9) When the facts set forth in the petition as well as in Constitution)
the petitioner’s main and reply briefs are not disputed
by the respondent; Monte: This is the result of the declaration of martial
10) When the findings are premised on the supposed law by then-President Marcos. This is because under
absence of evidence and contradicted by the the 1935 Constitution, the Supreme Court does not
evidence on record; and have the power to review the decision of the President
11) When the CA manifestly overlooked certain relevant to declare martial law, as the same was considered a
facts not disputed by the parties, which, if properly political question. Now, under the 1987 Constitution
considered, would justify a different conclusion. gives the SC the power to review the factual basis
only of the declaration of martial law – whether the
C. Other cases falling under the jurisdiction of the declaration is supported by facts.
SC
Administrative Powers of the Supreme Court
1) Review decisions of the three constitutional Source: Article VIII, Sec. 5, pars. 3, 4, 5 & 6, 1987
commissions (COMELEC, COA, CSC) by way of Constitution
petition for review on certiorari. (Art. IX, Sec. 7, 1987
Constitution); 1) Assigns, temporarily, judges of lower courts to other
stations as public interest may require;
Nota Bene: RA 7902
− RA 79022 on appeal to the CA of the decisions of Monte: Since the SC exercises administrative control
the CSC and the CBAA; and supervision over all lower courts, it can
temporarily assign judges of lower courts to other
Monte: Note that the three constitutional stations as public interest may require. So, a judge in
commissions also act as quasi-judicial bodies. When Cebu City may be assigned temporarily as a judge in
these three commissions decide a case, their another province.
decision is appealable. And where do you appeal
their decision? To the SC. 2) Order change of venue or place of trial to avoid a
miscarriage of justice;
But later on, the Congress enacted R.A. 7902, which
provides that the decisions of the Civil Service Monte: Just like what happened in the Ampatuan
Commissions and the CBAA3 shall no longer Massacre case. It ordered a change of venue from
appealed directly to the SC, but rather the appeal Maguindanao to Metro Manila.
must pass through to the CA. From the CA, you can
now go to the SC. 3) Promulgate rules concerning the protection and
enforcement of constitutional rights, pleadings,
You might ask, why of all the constitutional practice and procedures in all courts, the admission
commissions, it was only the CSC that was to the practice of law, the Integrated Bar, and legal
singled out by RA 7902? assistance to the underprivileged. Such rules shall
A: It’s because of the three constitutional provide a simplified and inexpensive procedure for
commissions, it is the CSC that has so many cases. the speedy disposition of cases. It shall be uniform for
And if all these cases will be appealed directly to the all courts of the same grade, and shall not diminish,
SC, the SC will be facing a deluge of cases in that increase or modify substantive rights;
they requested Congress to enact that law vesting the
CA with appellate jurisdiction involving the CSC. Monte: This power of the SC is the basis of its act of
creating the IBP, or the Integrated Bar of the
2) It shall be the sole judge of all contests relating to the Philippines. And, this is also the basis of the SC in
election, returns and qualifications of the President or promulgating the rules of procedure. The Rules of
Vice-President, and may promulgate rules for the Court, for example, and the new Rules of Civil
purpose. (Art. VII, Sec. 4, 1987 Constitution) Procedure.

3) Review the sufficiency of the factual basis of the 4) Appoint all officials and employees of the Judiciary in
proclamation of martial law or the suspension of the accordance with the Civil Service Law.
privilege of the writ of habeas corpus or the extension
 Monte: Now, judges of the municipal courts and the FABIAN VS. DESIERTO DIGEST
regional trial courts, as well as justices of the CA are G.R. No. 129742, September 16, 1998
not appointed by the SC. They are appointed by the
President. But the employees of the courts – the Petitioner Teresita G. Fabian was the major stockholder
people that work with the judges, like the branch clerk and president of PROMAT Construction Development
of court, the stenographer, the interpreter; you know, Corporation (PROMAT) which participated in the bidding
a regional trial court has a complement of about 15 for government construction projects including those
staff members, aside from the judge – all these other under the First Manila Engineering District (FMED), and
employees are appointed by the SC. private respondent Nestor V. Agustin, incumbent District
Engineer, reportedly taking advantage of his official
But in the appointment of the employees of the courts, position, inveigled petitioner into an amorous relationship.
the SC has to observe the rules under the Civil After misunderstandings and unpleasant incidents,
Service Law. Meaning, these people must possess Fabian eventually filed the aforementioned administrative
the necessary qualifications to hold their respective case against Agustin in a letter-complaint. The Graft
offices. Like, to be a clerk of court of a RTC, you must Investigator of the Ombudsman issued a resolution
be lawyer. But to be a clerk of court of an MTC, you finding private respondent guilty of grave misconduct and
need not be lawyer. It is enough that you studied the ordering his dismissal from the service with forfeiture of
law. all benefits under the law. On a motion for
reconsideration, Agustin was exonerated of the
Constitutional Limitations Involving the SC administrative charges.

Monte: The limitations are mostly addressed to the In the present appeal, petitioner argues that Section 27 of
legislative branch. In order the protect the SC from the Republic Act No. 6770 (Ombudsman Act of 1989)
pressure that may be exerted by the other branches of pertinently provides that —
government, the Constitution itself provides certain
limitations on the power of Congress which involves the In all administrative disciplinary cases, orders, directives
SC, namely: or decisions of the Office of the Ombudsman may be
appealed to the Supreme Court by filing a petition for
(1) Article VIII, Sec. 2 certiorari within ten (10) days from receipt of the written
The Congress shall have the power to define, prescribe, notice of the order, directive or decision or denial of the
and apportion the jurisdiction of the various courts, but motion for reconsideration in accordance with Rule 45
may not deprive the Supreme Court of its jurisdiction over of the Rules of Court.” (Emphasis supplied)
cases enumerated in Section 5 thereof.
Can the Court resolve the constitutionality of Section 27
(2) Article VI, Sec. 30 of Republic Act No. 6770 not raised in the trial?
No law shall be passed increasing the appellate
jurisdiction of the Supreme Court as provided in this Yes. Constitutional questions, not raised in the regular
constitution without its advice and concurrence. and orderly procedure in the trial are ordinarily rejected
unless the jurisdiction of the court below or that of the
Monte: A very good example of this is the case of Fabian appellate court is involved in which case it may be raised
vs. Desierto. You know, Desierto was once the at any time or on the court’s own motion. The Court ex
Ombudsman. Desierto is from Cebu City. And Congress, mero motu may take cognizance of lack of jurisdiction at
when it enacted the law creating the Office of the any point in the case where that fact is developed. The
Ombudsman – so this is the Ombudsman Act – in that court has a clearly recognized right to determine its own
law, the Congress provided that the decision of the jurisdiction in any proceeding.
Ombudsman or actions of the Ombudsman shall be
appealed directly to the SC. The SC said, “Wait a minute. Is Section 27 of Republic Act No. 6770 unconstitutional?
Did you consult us on that? Because you will be adding a
burden to us.” Yes. Section 27 of Republic Act No. 6770 cannot validly
authorize an appeal to this Court from decisions of the
No law shall be passed, according to Sec. 30 of Art. 6, Office of the Ombudsman in administrative disciplinary
increasing the appellate jurisdiction of the SC without its cases. It consequently violates the proscription in Section
advice and concurrence. 30, Article VI of the Constitution against a law which
increases the appellate jurisdiction of this Court. No
SC: “Now since you did not consult us, when you enacted countervailing argument has been cogently presented to
that Ombudsman Act, the decision of the Ombudsman justify such disregard of the constitutional prohibition
cannot be directly appealed to the SC. It has to pass which, as correctly explained in First Lepanto Ceramics,
through the CA.” Inc. vs. The Court of Appeals, et al. was intended to give
this Court a measure of control over cases placed under
its appellate jurisdiction. Otherwise, the indiscriminate
enactment of legislation enlarging its appellate jurisdiction o Now, the three divisions in Visayas shall
would unnecessarily burden the Court. exercise appellate jurisdiction over all cases
decided by the RTCs in all regions in Visayas:
As a consequence of our ratiocination that Section 27 of Eastern, Central and Western Visayas; while
Republic Act No. 6770 should be struck down as the three divisions in Mindanao shall exercise
unconstitutional, and in line with the regulatory philosophy appellate jurisdiction over all cases decided
adopted in appeals from quasi-judicial agencies in the by RTCs in Mindanao.
1997 Revised Rules of Civil Procedure, appeals from o The original 17 divisions shall remain in
decisions of the Office of the Ombudsman in Manila and shall exercise appellate
administrative disciplinary cases should be taken to the jurisdiction over all cases decided by the
Court of Appeals under the provisions of Rule 43. RTCs in Luzon.
o You will see a big discrepancy here. 17
Monte: In fact, there is another case, involving the BOI Divisions given to Luzon. So, for me, it’s
(Board of Investments). The BOI was created by the really unfair that we only have 3 Divisions.
Investment Code of the Philippines. And in that law, it also But anyway, I don’t know how they viewed it.
provides that the decision of the BOI shall be appealed We must submit to the discretion of the
directly to the SC. Again, the SC, applying their ruling in Congress.
the case of Fabian vs. Desierto, said, “You cannot do that o But actually, RA 8246, while passed in 1997,
without our conformity. You should have consulted us if was only implemented sometime in 2003 or
we agree to that. Since you did not, we do not accept that 2002, when the CA in Visayas and Mindanao
portion of the law --- that is unconstitutional because it were created. Because, 1998, 1999, 2000 –
violates Art. 6, Sec. 30 of the 1987 Constitution.” we don’t have a physical CA in Visayas and
Mindanao. The reason? No funding yet.
Court of Appeals
Summary of CA Divisions:
History & Composition
− The CA which was first created by the Judiciary Appellate
Reorganization Act of 1948. Then, its name was Division Location Jurisdiction
changed to the Intermediate Appellate Court (IAC) by over RTCs in:
BP 1294 in 1981. 1-17 Manila Luzon
− It has 49 Associate Justices and 1 Presiding Justice 18-20 Cebu City Visayas
(total of 50 Justices); divided into 10 Divisions with 5 21-23 Cagayan de Mindanao
members per division. Oro City
− Later on, BP 129 was amended by EO No. 33 5 in
1986 with 51 members divided into 17 Divisions. Jurisdiction of the Court of Appeals
o Monte: What was drastically changed here
was the composition of the division. Under A. Original Jurisdiction
BP 129, a division had 5 justices; but under
EO 33, a division will only have 3 justices. 1) To issue writs of mandamus, prohibition, certiorari,
Actually, it’s 50 associate justices and 1 habeas corpus, and quo warranto (CHaMPQ), and
presiding justice. And the presiding justice, auxiliary writs or processes whether or not in aid of its
who is the equivalent of the CJ of the SC, will appellate jurisdiction (Sec. 9 (1), B.P. 129)
be the chairman of the first division.
− R.A. 82466 (1997) amended E.O. 33 by increasing the B. Exclusive Original Jurisdiction
membership to 69 with 23 Divisions.
o Monte: Each division still has 3 members. 2) Exclusive jurisdiction over actions for annulment of
Under this law, the original 17 divisions under judgments of the RTC (Sec. 9 (2), B.P. 129)
EO 33 shall remain in Manila. The newly-
created divisions, that is, divisions 18-23, will Monte: Now, this annulment of the judgment of the
be in other areas. Divisions 18, 19 and 20 RTC belongs to the exclusive AND original
shall be based in Cebu City, and shall be jurisdiction of the CA, whereas the writs (CHaMPQ)
called the Court of Appeals – Visayas. And are original only because they also fall under the
Divisions 21, 22 and 23 shall be based in concurrent jurisdiction with the RTC and the SC.
Cagayan de Oro City, and they shall be called
the Court of Appeals – Mindanao.
C. Appellate Jurisdiction Bureau of Internal Revenue (BIR). Alleging that the
dismissal was illegal, respondent filed a case against St.
3) Exclusive appellate jurisdiction over all final Martin Funeral Homes in the National Labor Relations
judgments, decisions, resolutions, orders or awards Commission (NLRC).
of the RTCs and quasi-judicial agencies,
instrumentalities, boards or commissions, including Petitioner’s (St. Martin Funeral Homes) contention is that
the Securities and Exchange Commission (SEC), the the respondent is not an employee due to the lack of an
Social Security Commission (SSC), the Employees employer-employee contract. In addition, respondent is
Compensation Commission (ECC), and the Civil not listed on St. Martin’s monthly payroll.
Service Commission (CSC), except those falling
within the appellate jurisdiction of the SC in The Labor Arbiter ruled in favor of petitioner, confirming
accordance with the Constitution, the Labor Code of that indeed, there was no employer-employee
the Philippines under P.D. 442, as amended, the relationship between the two and hence, there could be
provisions of this Act, and of sub-paragraph (1) of the no illegal dismissal in such a situation.
third paragraph, and sub-paragraph (4) of the fourth
paragraph of Sec. 17 of the Judiciary Act of 1948. The respondent appealed to the secretary of NLRC who
set aside the decision and remanded the case to the labor
Judiciary Act of 1948 (RA 296, June 17, 1948) arbiter. Petitioner filed a motion for reconsideration, but
was denied by the NLRC. Now, petitioners appealed to
Sec. 17. Jurisdiction of the Supreme Court. The the Supreme Court – alleging that the NLRC committed
Supreme Court shall have original jurisdiction over cases grave abuse of discretion.
affecting ambassadors, other public ministers, and
consuls; and original and exclusive jurisdiction in petitions Was petitioner’s appeal (petition for certiorari) properly
for the issuance of writs of certiorari, prohibition and filed with the SC?
mandamus against the Court of Appeals.
No. Historically, decisions from the NLRC were
In the following cases, the Supreme Court shall exercise appealable to the Secretary of Labor, whose decisions
original and concurrent jurisdiction with Court of First are then appealable to the Office of the President.
Instance: However, the new rules do not anymore provide
provisions regarding appellate review for decisions
1. In petitions for the issuance of writs of certiorari, rendered by the NLRC.
prohibition, mandamus, quo warranto, and habeas
corpus; However, in this case, the Supreme Court took it upon
themselves to review such decisions from the NLRC by
xxx virtue of their role under the check and balance system
and the perceived intention of the legislative body who
4. In actions brought to prevent and restrain violations of enacted the new rules.
law concerning monopolies and combinations in restraint
of trade. “It held that there is an underlying power of the courts to
scrutinize the acts of such agencies on questions of law
Monte: Before, decisions of the NLRC are appealable to and jurisdiction even though no right of review is given by
the DOLE. And the decisions of the DOLE are appealed statute; that the purpose of judicial review is to keep the
directly to the SC, not passing through the CA. This is so administrative agency within its jurisdiction and protect
under the Labor Code. Now, later on, the SC came out the substantial rights of the parties; and that it is that part
with a ruling in the case of St. Martin Funeral Homes vs. of the checks and balances which restricts the separation
NLRC, saying that from now on, decisions of the DOLE of powers and forestalls arbitrary and unjust
shall no longer be appealed to the SC directly. It has to adjudications.”
pass through the CA in observance of the principle of The petitioners rightfully filed a motion for reconsideration,
hierarchy of courts. but the appeal or certiorari should have been filed initially
to the Court of Appeals – as consistent with the principle
So, you appeal the ruling to the CA, and not directly to the of hierarchy of courts. As such, the Supreme Court
SC. So, from the Labor Arbiters, you go to the NLRC, remanded the case to the Court of Appeals.
From the NLRC, you appeal to the CA. And from the CA,
you can now go to the SC under Rule 45. Rules on Appeal

ST. MARTIN FUNERAL HOMES VS. NLRC − Under RA 7902: Appeal from the decision of the CSC
shall now be filed with the CA;
Respondent (Arcayos) was summarily dismissed by St. − Decision of the BOI is now appealable to the CA; and
Martin Funeral Homes for misappropriating funds worth
Php 38,000 which was supposed to be taxes paid to the
− Decision of the Ombudsman in administrative cases However, par. 2 provides an exception that except in
is no longer appealable directly to the SC (Fabian vs. actions for forcible entry and unlawful detainer,
Desierto) original jurisdiction over which is conferred upon the
Metropolitan Trial Courts, Municipal Trial Courts and
JURISDICTION OF THE REGIONAL TRIAL COURT Municipal Circuit Trial Courts. In ejectment cases, the
(RTC) jurisdiction to hear belong to the municipal trial courts
regardless of the value of the property. Why?
IN CIVIL CASES Because BP 129 provides that ejectment cases
belong to the exclusive and original jurisdiction of the
Before the passage of the Batas Pambasa Blg 129 municipal trial courts.
otherwise known as the Judiciary Reorganization Act of
1980, the Regional Trial Court was called as the Court of How about quieting of title?
First Instance. Each province shall have at least one CFI. Actually, there is a little controversy here. Before,
The RTC is supposedly regional in its jurisdiction. Here, there was a ruling that quieting of title is a case that is
in Cebu City, we belong to Region 7 and such region is incapable of pecuniary estimation. But now, there is
composed of the entire province and cities of Cebu, another ruling that says quieting of title is actually an
Bohol, Siquijor, and Negros Oriental or Dumaguete. In BP action an action to recover your ownership of real
129, there were around 50 branches of RTC in Region 7. property and therefore you have to take into
What I am trying to say is there is only one regional trial consideration the value of the property or the land
court in one region but it has many branches. All over the which is the subject matter of the case. If it is more
Philippines, there were no less than 800 branches when than 20,000, go to the RTC. If it is 20,000 or less, you
BP 129 was approved. Now, there are around a thousand. go to the MTC.

The RTC is known as the 2nd level court. The lowest level 3. In all civil actions in admiralty and maritime
is the MTC, the third level is the CA, and the highest level jurisdiction where the demand or claim exceeds
is the SC. One Hundred Thousand (now P300,000.00) or, in
Metro Manila, where such demand or claim
Now, what is the jurisdiction of the RTC? exceeds Two Hundred Thousand Pesos (now
It is provided for in BP 129. The following are the cases P400,000.00);
you can file in the RTC as an original action. The following
belongs to the exclusive and original jurisdiction of the The jurisdictional amount mentioned in BP 129 was
RTC: already changed by Congress through RA No. 7691.

1. In all civil actions in which the subject of the What are admiralty and maritime cases?
litigation is incapable of pecuniary estimation; Illustration: A case where you shipped through
Gothong Lines some goods from Manila to Cebu City.
Illustration: Specific Performance – to compel you to When it reached Cebu, your goods were already
do an act. That is incapable of pecuniary estimation. damaged so you decided to file a case. That is an
admiralty or maritime case. You file it either in the
2. In all civil actions which involve the title to, or municipal or regional trial court depending on the
possession of, real property or any interest amount of your claim. If the amount of your claim is
therein, where the assessed value of the property less than 300,000, you file it in the municipal trial
involved exceeds P20,000.00 or for civil actions in courts, but if your claim is more than 300,000, you file
Metro Manila where such value exceeds it in the RTC.
P50,000.00 except actions for forcible entry and
unlawful detainer of lands and building; original Please take note that before BP 129 was enacted,
jurisdiction over which is conferred upon the maritime cases belong to the CFI. But now, under BP
Metropolitan Trial Courts, Municipal Trial Courts 129, the MTC is already vested with jurisdiction to
and Municipal Circuit Trial Courts; hear and try admiralty and maritime cases if the claim
is very small.
Monte: The basis of a real action is the value of the
property. Now, what shall be the basis in determining 4. In all matters of probate, both testate and
the value of the property? It shall be the assessed intestate, where the gross value of the estate
value of the property as reflected in the tax exceeds P100,000.00 (now P300,000.00) or, in
declaration of the property. Where will you file it? In probate matters in Metro Manila, where such
the MTC if it is 20,000 or less, and if it is over 20,000 gross value exceeds (P400,000.00);
RTC. In Metro Manila, it should be 50,000 or less for
MTC and RTC if over 50,000. Just like in paragraph 3, probate (both testate and
intestate) were under the exclusive and original
jurisdiction of the CFI before, but under BP 129, it is
 now cognizable by the MTC if the value of the estate Decree No. 603, Executive Order No. 56,
is very small (less than P300,000). So you will notice (Series of 1986), and other related laws;
that both the RTC and MTC share jurisdiction on • Petitions for the constitution of the family home.
these cases depending on the amount of the claim.
Gitagaan na karon ug authority ang lowest court 6. In all cases not within the exclusive jurisdiction
which is the MTC and this is to unburden or lighten to of any court, tribunal, person or body exercising
the load of the RTC. If the amount of the claim is not judicial or quasi-judicial functions;
very big, you go to the MTC. If the value is more than
P300,000 or P400,000, it belongs to the exclusive Par.6 is what made the regional trial court as a court
and original jurisdiction of the RTC. of general jurisdiction. The RTC is actually the
workhorse of the entire judiciary where almost all
5. In all actions involving the contract of marriage cases are to be tried. If you apply as an RTC judge,
and marital relations; dali ra ka matiguwang.

Before BP 129 was approved, we used to have a 7. In all civil actions and special proceedings falling
Juvenile Domestic and Relation Court (JDRC) which within the exclusive original jurisdiction of a
has exclusive and original jurisdiction over all cases Juvenile and Domestic Relations Court and of the
involving contract or marriage and marital relations Court of Agrarian Relations as now provided by
like annulment of marriage, declaration of nullity of law; and
marriage, legal separation, and even an action of
support or an action for recognition as an illegitimate Before BP 129, we used to have several special
child—all other cases that are found in the Family courts that accept specialized actions. If the case
Code of the Philippines. The JDRC was abolished by involves family relations, you to the JDRC. If it is a
BP 129. The jurisdiction of the JDRC was transferred dispute between an agricultural landlord and tenants
to the RTC. But later on you will notice that these arising out from agricultural tenancy, you go to the
cases were removed from the RTC and transferred to CAR. But these two special courts were abolished by
the Family Court pursuant to RA 8369. The Family BP 129 and their jurisdictions were transferred to the
Court is actually a Regional Trial Court but it is RTC. Later on, Congress realized that it was a wrong
designation as a special court within the regional trial move so they decided to restore the special courts.
court to hear exclusively cases involving contract of So, they created the Family Courts in 1997 and in
marriage and marital relation. Pursuant to RA 8369, 1998, the Comprehensive Agrarian Reform Law
the Family Court shall have its exclusive and original (CARL) or RA 6657. Under RA 6657, the jurisdiction
jurisdiction to hear and decide the following cases, of the RTC to hear agrarian cases was later on
among others7: transferred to the DARAB, the equivalent of CAR.
There is, however, exceptions to that:
• Petitions for guardianship, custody of children,
habeas corpus in relation to the latter; • Determination of just compensation in CARL;
• Petitions for adoption of children and the and
revocation thereof; • Criminal cases arising out of violations of RA
• Complaints for annulment of marriage, 6657.
declaration of nullity of marriage and those
relating to marital status and property relations So, when an agricultural land is expropriated to the
of husband and wife or those living together government pursuant to CARL, the government will
under different status and agreements, and have to pay first the landowner. It is the Regional
petitions for dissolution of conjugal partnership Trial Court who will determine the just
of gains; compensation. That jurisdiction is still retained by the
• Petitions for support and/or acknowledgment; RTC but all other cases involving agrarian relations
• Summary judicial proceedings brought under will be tried by the DARAB.
the provisions of Executive Order No. 209,
otherwise known as the "Family Code of the 8. In all other cases in which the demand,
Philippines"; exclusive of interest, damages of whatever
• Petitions for declaration of status of children as kind, attorney's fees, litigation expenses, and
abandoned, dependent or neglected children, costs or the value of the property in controversy
petitions for voluntary or involuntary exceeds P300,000.00 or, in Metro Manila
commitment of children; the suspension, P400,000.00 (as amended by R.A. No. 7691).
termination, or restoration of parental authority
and other cases cognizable under Presidential
 Par 8 refers to all other actions where you seek to ANTIG V. ANTIPUESTO ET AL
recover a personal property, more particularly, GR. No. 192396, Jan. 17, 2018
recover money. For example, you did not pay back
the money you borrowed so I decided to file a case. The limited and special jurisdiction of the RTC to hear
Where do I file? It depends on the amount of the claim agrarian cases is limited only to the determination of just
which is to be based on the principal amount. compensation and the prosecution of al criminal offenses
Attorney’s fees, litigations expenses, and costs will under RA 6657. The RTC does not have the jurisdiction
not be included in the determination of the court’s over petition for injunction over the DARAB. Thus, it does
jurisdiction. not have the authority to issue injunction against the
DARAB to prevent it from implementing the CARP. This
Illustration: So, if the amount borrowed is P300,000 is also expressly stated in Sec. 55 and 68 of RA 6657 that
with an interest of P50,000, attorney’s fees of no TRO or injunction shall be issued by the RTC against
P100,000, litigation expenses of P30,000, costs of the DAR implementing the CARP.
suit P20,000—where do I file the case?
Answer: Municipal Trial Court since the principal SC CIRCULAR 09-94
amount involved is P300,000. The provision excluding damages in the determination of
jurisdiction applies only if the damages are INCIDENTAL
Illustration: I seek to recover a car with a value of to the action. If the main cause of action is purely for
P300,000, with damages, interest, and attorney’s damages, you include it in the determination of
fees. Where do I file? jurisdiction.
Answer: Municipal Trial Court.
Dean Monte: This circular answers the question that was
I emphasized “an action to recover money or personal raised by many in the legal community: What about if the
property” because if it involves an action to recover action is purely for damages, shall we exclude also the
real property, you apply paragraph 2 (RTC if the amount of damages claimed in the determination of
assessed value of the property involved exceeds jurisdiction? According to BP 129, in determining the
P20,000.00 or P50,000 for Metro Manila). jurisdiction of the RTC, you just determine what is the
main action/the principal claim. The claim for damages,
REPUBLIC ACT NO. 7691 (April 15, 1994) attorney’s fees, etc. shall be excluded BUT not if the main
action itself is for damages.
• This is otherwise known as the expanded jurisdiction
of the Municipal Trial Court. ORTIGAS & CO. LTD PARTNERSHIP V. HERRERA
• RA 7691 increases the jurisdictional amount 120 SCRA 89
cognizable by the RTC from more than P100,000.00
to P200,000.00 effective 1999 and then to more than Jurisdiction is determined not by the title of the complaint
P300,000.00 effective April 15, 2004. but by its allegation. Thus, if the title is for Collection of
• In Metro Manila, it was increased from P200,000.00 Sum of Money amounting to P50,000.00 but the
to more than P400,000.00 effective 1999. allegation therein is for Specific Performance (to return
• No further expansion of jurisdiction in Metro Manila the money deposited after complying with the conditions)
after 1999. the case should be filed not in the MTC but with the RTC.

OTHER LAWS AFFECTING RTC JURISDICTION LUPANGCO V. CA

Decision of the PRC not in the exercise of its quasi-judicial
RA 8369 (1997) – created the Family Court and function is appealable to the RTC.
transferred the jurisdiction to try family law cases from
RTC to Family Court. In Rule 43 of the ROC, decisions of quasi-judicial bodies
are appealable to the Court of Appeals by way of petition
RA 6657 known as the Comprehensive Agrarian for review. But the SC clarified in the case of Lupangco
Reform Law of 1988 transferred the jurisdiction of the that what is appealable to the Court of Appeals are only
RTC to try agrarian cases to the DARAB (Department of those that are done by quasi-judicial bodies in the
Agrarian Reform Adjudication Board). exercise of their quasi-judicial function. If it is done in its
administrative or its quasi-legislative function, it is not
Exceptions: appealable to the CA, but to the RTC. The Lupangco case
1. Payment of just compensation; and is about a CPA board exam where a leakage was
2. Prosecution of criminal offenses under CARL. discovered. PRC passed an administrative order
abolishing review centers to get rid of these leakages.
This was questioned before the RTC but the PRC argued
that this is not cognizable by the RTC. The SC said that
what was being questioned was not the decision of the
PRC in the exercise of its quasi-judicial function but in the which are not susceptible of
exercise of its quasi-legislative function. determination in terms of money.

SPS. PAJARES V. REMARKABLE LAUNDRY To determine if an act is incapable of pecuniary

GR No. 212690, Feb 20, 2017 estimation, look into the facts of the case and
An action for “Breach of Contract with Damages” is not an determine the primary purpose of the action. It is
action incapable of pecuniary estimation if the allegation not the denomination of the action/complaint which
in the complaint is really to recover liquidated damages determines the nature of the suit, but rather the
stipulated in the contract. It is neither an action for specific allegations contained in the complaint that is
performance of for rescission. In determining whether the controlling. (From DGST Notes, Civil Procedure
action is one the subject of which is not capable of 2018-2019)
pecuniary estimation, the nature of the action shall be the
basis. (2) Civil actions involving title to, or possession of
real property, or any interest therein, where
Dean Monte: This is a Cebu City case. The Sps. Pajares assessed value exceeds 20,000 outside Metro
entered into a contract with Remarkable Laundry where Manila or exceeds 50,000 in Metro Manila.
the former will act as the marketing agent of the latter. • If the action is recovery of property
They can accept laundry but they will pass it on to whether real or personal, it is important to
Remarkable. In turn, they will be given a certain take note the value of the property to be
commission for that. In the contract, there is a stipulated recovered. If the property to be recovered
minimum weight of laundry that will be delivered to is a real property, the jurisdictional
Remarkable but this was later on not met by the spouses amount of the RTC is beyond 20,000
so they decided to stop. But in the contract there was a pesos. If it is 20,000 or less, you file it with
stipulation for liquidated damages amounting to 200,000 the Municipal Trial Courts.
so Remarkable filed a case before the RTC. However, it • These jurisdictional amounts apply
was dismissed because although the case was titled only to real actions. Real actions refer
Breach of Contract with Damages, what was asked by to actions to recover real property.
Remarkable was the liquidated damages stipulated in the
contract. Judge Maamo (Dean’s friend) said that this was (3) Any action if the amount involved exceeds
not a simple case for breach of contract because if you 300,000 outside Metro Manila or exceeds
read the complaint, the intention of the party was really to 400,000 in Metro Manila in the following cases:
recover the liquidated damages stipulated in the contract. (B.P. 129, as amended by RA 7691)
This was actually an action to recover money in the 1. Actions in admiralty and maritime jurisdiction,
amount of 200,000 which is within the jurisdiction of the where the amount refers to demand or claim
MTC. Remarkable appealed the case to the CA which [Sec 19 (3)]
ruled in favor of Remarkable but when Pajares went to the 2. Matters of probate (testate or intestate),
SC, it was ruled that RTC’s decision was correct. Breach where the amount refers to gross value of
of Contract is not really the cause of action in the case. estate [Sec 19 (4)]
The main action here is the recovery of the amount of 3. In all other cases where the amount refers to
liquidated damages. the demand, exclusive of interest, damages
of whatever kind, attorney’s fees, litigation
Monte: The Regional Trial Court is the work force of the expenses, and costs [Sec 19 (8)]
entire judiciary. It is the court of general jurisdiction. It
exercises original and exclusive jurisdiction in certain Monte: If the action is to recover money or
cases and also exercises concurrent jurisdiction with personal property, the jurisdictional amount
other cases. is more than 300,000. If it is 300K or less, you
go to the Municipal Trial Court.
Important principles in determining the jurisdiction of
the Regional Trial Court: In Metro Manila, the jurisdictional amount is
(1) Determine whether or not that action is incapable higher – more than 400,000. This is pursuant to
of pecuniary estimation RA 7691 which increased the jurisdiction of the
• Pecuniary Estimation – it means whether municipal trial court from 100,000 to 200,000, and
or not the main action is susceptible of the RTC from 200,000 to more than 300,000.
determination in terms of money.
In actions to recover money or personal property,
If the main action is incapable of the jurisdiction is determined by the principal
pecuniary estimation, it should be filed claim. It refers to the principal amount to be
with the RTC like an action for specific recovered. You do not have to include the claim
performance or rescission of contract for interest, damages, attorney’s fees, litigation
expenses and cost of suit.
 Petitions for certiorari, prohibition and mandamust
Concurrent Original Jurisdiction against lower courts and bodies
Quo warranto petitions, and
Section 21 – Regional Trial Court shall exercise original Writ of Habeas Corpus
jurisdiction: Writ of Amparo
(1) In the issuance of writs of certiorari, prohibition, Writ of Habeas Data
mandamus, quo warranto, habeas corpus, and
injunction which may be enforced in any part of 3. With Sandiganbayan
their respective region. (a) Writ of Amparo
(2) In actions affecting ambassadors and other public (b) Writ of Habeas Data
ministers and consuls
RTC’s Appellate Jurisdiction
Issuance of Writs of Certiorari, Prohibition,
Mandamus, Quo Warranto, Habeas Corpus, and Section 22. Appellate Jurisdiction – Regional Trial
Injunction Courts shall exercise appellate jurisdiction over all
Monte: RTC has concurrent jurisdiction with certain cases decided by MeTC, MTCC, MTC and MCTC in
cases. It has concurrent jurisdiction with other courts such their respective territorial jurisdictions. Such cases
as the Courts of Appeal and the Supreme Court – these shall be decided on the basis of the entire record of the
are the special civil actions of certiorari, prohibition, proceedings had in the court of origin and such
mandamus, quo warranto, injunction, habeas corpus, etc. memoranda and/or briefs.
which may be enforced in any part of the respective
region. Monte: With the abolition of the Court of First Instance
(CFI) which used to be a provincial court, Batas
When we say concurrent, you can file this case in the RTC Pambansa 129 created the Regional Trial Court and the
or in the CA or SC. But this will observe the principle of jurisdiction of the RTC is supposed to be the entire region
hierarchy of courts – we do not go to the SC right away to which it belongs. For example, Cebu is part of Region
unless there is a justification why you have to file the 7 and Region 7 is composed of the Province of Cebu,
certiorari directly to the SC instead of the RTC. If there is Bohol, Siquijor, Negros Oriental or Dumaguete City. Now,
no justification, you will have to file it either in the RTC or the jurisdiction of a particular RTC branch is limited only
the CA. to a certain territory in the region. There is only one
Regional Trial Court in the entire Region 7 but it is
Actions affecting ambassadors and other public composed of many branches which are located in Cebu,
ministers and consuls Bohol, Siquijor, Negros Oriental or Dumaguete. Each of
Monte: Another case which affects the concurrent these branches has a specific territorial jurisdiction.
jurisdiction of the RTC is in cases affecting ambassadors
and other public ministers and consuls. For example, in the RTC of Cebu City housed in
Quimonda there are more than 20 branches of the
These cases may also be filed with the Supreme Court Regional Trial Court. RTC of Cebu City exercises
and not with the Court of Appeals. jurisdiction over the entire City of Cebu. Decisions of the
Municipal Trial Courts in Cebu city and the neighboring
The cases mentioned in paragraph 1 and 2 are also municipal towns which belong to the jurisdiction of RTC of
considered original actions with the RTC because you Cebu City may be appealed in RTC Cebu City. We have
can file it there as an original action, although at the same a central office of the Clerk of Court and your case will be
time it is concurrent with the Supreme Court and Court of raffled first to different branches.
Appeals.
Before, the jurisdiction of RTC Cebu City extends up to
UP-BOC 2020 Talisay City, Minglanilla, San Fernando. Later on, new
RTC’s Concurrent Original Jurisdiction branches of the RTC where created in Talisay City and
1. With SC San Fernando which are now outside the jurisdiction of
Cases affecting ambassadors, public ministers and RTC Cebu City. Mandaue and Lapu-Lapu also has its
consuls own RTC.
Petitions for certiorari, prohibition and mandamus
against lower courts This branch of an RTC has a specific territorial
Quo warranto petitions jurisdiction. For example, in the past there is only one
Writ of Habeas Corpus RTC judge assigned in Bogo but its jurisdiction is the
Write of Amparo entire fourth congressional district composed of 9 towns
Writ of Habeas Data and one city. If the case is decided by Daanbantayan or
Medellin, you will have to appeal that to RTC of Bogo and
2. With CA not to the RTC of Cebu City because it is the one who has
territorial jurisdiction over that area. At present, there are in Cebu City, we used to only have three branches of the
now three branches in Bogo. Municipal Trial Courts in Cebu City but it is now increased
to 13 branches.
When RTC decides a case, it can only decide a case that
belongs to its territorial jurisdiction. For example, when For smaller towns, they have one municipal trial court for
RTC issues a writ, it can only apply to the region as a 2 or more towns known as Municipal Circuit Trial
general rule. A writ of injunction issued by the RTC Cebu Courts. Circuit means that it is a court that has jurisdiction
City is effective only within Region 7. But there are writs over two or more towns.
issued by the RTC which are applicable in the entire
country such as writs in criminal cases like a warrant For example, there is only one Municipal Trial Court for
of arrest. Summons issued by the court can also be Daanbantayan, Medellin and San Remegio – these are
enforced outside the Region. neighboring towns. So we have Municipal Trial Court of
Daanbantayan-Medellin-San Remegio.
The appellate jurisdiction of the RTC is confined only to
the decisions made by the Municipal Trial Court located Municipal Trial Court’s Exclusive Original
within the territorial jurisdiction of the trial court. Jurisdiction

Jurisdiction of the Municipal Trial Court Section 33, BP 129 as amended by RA 7691

There are 4 types of courts here: (1) Exclusive original jurisdiction over civil actions and
(1) Metropolitan Trial Court probate proceedings, testate and intestate, including
(2) Municipal Trial Courts the grant of provisional remedies in proper cases,
(3) Municipal Trial Court in Cities where the value of the personal property, estate, or
(4) Municipal Circuit Trial Courts amount of the demand does not exceed 300,000 or,
in Metro Manila where such personal property, estate,
The jurisdiction of the Metropolitan Trial Court is higher or amount of the demand does not exceed 400,000,
than the Municipal Trial Courts because the jurisdictional exclusive of interest, damages of whatever kind,
amount is up to 400,000 while in other Municipal Trial attorney’s fees, litigation expenses, and costs.
Court is 300,000.
(2) Exclusive original jurisdiction over cases of forcible
Exclusive Original Jurisdiction entry and unlawful detainer: Provided, that when in
(a) Where the value of personal property, estate, or such cases, the defendant raises the question of
amount of demand does not exceed 300,000 outside ownership in his pleadings and the question of
Metro Manila or does not exceed 400,000 in Metro possession cannot be resolved without deciding the
Manila, exclusive of interest, damages of whatever kind, issue of ownership the issue of ownership shall be
attorney’s fees, litigation expenses, and costs in the resolved only to determine the issue of possession.
following cases:
1. Civil Actions (3) Exclusive original jurisdiction in all civil action which
2. Probate proceedings (testate or intestate) involve title to, or possession of, real property or
3. Provisional remedies in proper cases interest therein where the assessed value does not
(Sec 33 (1) BP 129, as amended by RA 7691) exceed 20,000.00, or in civil actions in Metro Manila,
where the assessed value does not exceed 50,000,
(b) Forcible entry and unlawful detainer (FEUD) exclusive of interest, damages of whatever kind,
Note: When defendant raises questions of ownership in attorney’s fees, litigation expenses and costs;
his pleadings and the question of possession cannot Provided, that in cases of land not declared for tax
be resolved without deciding the issue of ownership, purposes, the value shall be determined by the
the latter issue shall be resolved only to determine the assessed value of the adjacent lots;
former issue.
DISCUSSION
(c) All civil actions involving title to, or possession of, real
property, or any interest therein where assessed (1) Civil Actions, Probate Proceedings, Provisional
value of the property or interest therein does not Remedies where the value does not exceed 300K
exceed 20,000 outside Metrol Manila or does not or 400K
exceed 50,000 in Metro Manila
Monte: Municipal trial courts has jurisdiction to
(d) Inclusion and exclusion of voters (Sec 49, Omninus entertain testate and intestate proceedings and also
Election Code) admiralty and maritime cases provided that the
amount does not exceed 300,000 or 400,000 in
Monte: All other cities in the country outside Metro Manila Metropolitan area.
are now called Municipal Trial Court in Cities. Like here
 In the past, the jurisdiction of admiralty and maritime provides that the assessed value shall be based on
cases, probate proceedings, and settlement of the the adjacent lot.
estate exclusively belong to the CFI. At present,
municipal trial courts have jurisdiction over these Real Action Personal Action
cases provided that the amount involved does not It affects the title to or It refers to all other actions
exceed 300K or 400K. possession of real which are not real actions.
property, or an interest (Sec 2, Rule 4)
(2) Forcible Entry and Unlawful Detainer therein. (Sec 1, Rule 4)
Monte: Municipal Trial Courts also have exclusive
original jurisdiction over forcible entry and unlawful The plaintiff seeks the
detainer cases regardless of the amount involved. recovery of personal
Even if the value of the property is worth millions, the property, enforcement
case should still fall under the jurisdiction of the MTC. of a contract, or the
recovery of damages
Ejectment cases only cover possession of real
property. The issue in ejectment is only possession Based on the privity of
and does not include ownership. However, BP 129 contracts or for the
as amended now provides that if the issue of recovery of sums of
ownership is raised in the pleadings of the defendant money
and the question of possession cannot be resolved
without deciding the issue of ownership, the MTC
may upon the issue of ownership but only for the UP BOC 2020
purpose of determining the issue of possession. Not every action involving real property is a real
IOW, the court may inquire into the matter of action because the realty may only be incidental to the
ownership but it is only for purposes of determining subject matter of the suit. In the cases of Heirs of Bautista
who has a better right of possession of the property vs Lindo (GR No. 208232, 2014) involving a complaint to
and does not resolve with finality the issue of redeem a parcel of land subject of a free patent and
ownership because the latter should only be Olivarez Realty vs Castillo (GR No 196251 2014)
resolved in another case such as action publiciana involving an action for rescission of a contract involving
or action reivindicatoria or quieting of title. real property, the SC held that the conveyance of real
property was only incidental to the determination of
matters incapable of pecuniary estimation. The cases
(3) Civil action which involve title to, or possession were deemed personal actions because the principal
of, real property or interest where assessed action or remedy sought does not involve title to or
value does not exceed 20K or 50K possession of real property.
Monte: If it is a real action – action to recover
ownership and possession of real property – the CNFS Notes, 2017-2018
jurisdictional amount of the MTC is 20K or less. The Not every action involving real property is a real action
jurisdictional amount cognizable by the RTC is over because the realty may only be incidental to the subject
20K. matter of the suit. Example is an action for damages to
real property, while involving realty is a personal action
You have to distinguish this from recovery of because although it involves real property, it does not
personal property. For personal actions, the involve any of the issues mentioned.
jurisdictional amount is 300K.
Fundamental and prime objective must be related with
There are many students who are confused with this. real property.
You have to ask yourself, what kind of action is this?
Is this a real action or a personal action? Because Matter in litigation: title to, ownership, possession,
the jurisdictional amount for real action is partition, foreclosure of mortgage or any interest in the
different from a personal action. real property
If the action is to recover a real property, the value Thus, real property + matter in litigation = real action
of the property will be the basis of jurisdiction. How
will you determine the value? It is based on the tax
declaration because it has the assessed value of the
property.
Although interest, damages of whatever kind, litigation
What if the property is not declared for tax purposes?
expenses and cost of suit are not included in the
What if it does not have a Tax Declaration? BP 129
determination of jurisdiction, they are, however, included
in the determination of filing fee.
 exceeds 300,000, you file it with the RTC. If it is 300K or
Note: Although damages, interest, litigation expenses, less, file it with the MTC.
and costs are excluded in the determination of jurisdiction,
they must be specifically alleged: Provided, That interest, Totality Rule
damages of whatever kinds, attorney’s fees, litigation If several claims or causes of action are embodied in the
expenses, and costs shall be included in the same complaint, the amount of all the demands shall be
determination of the filing fees: Provided further, that the basis in the computation of the amount involved, if:
where there are several claims or causes of actions 1. Claims are in the same complaint
between the same or different parties, embodied in the 2. Claims are against the same defendant
same complaint, the amount of the demand shall be the 3. No misjoinder of parties
totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of Delegated Jurisdiction of the MTC
the same or different transactions.
Section 34. Delegated jurisdiction in Cadastral and Land
Monte: The amount of damages you claim against the Registration Cases – MetTCs, MTCs and MCTCs may be
defendant as well as the interest, including litigation assigned by the Supreme Court to hear and determine
expenses and the cost of suit are immaterial for purposes cadastral or land registration cases covering lots where
of determining jurisdiction. The only basis of jurisdiction is there is no controversy or opposition, OR contested lots
the principal claim or amount. where the value of which does not exceed 100,000, such
value to be ascertained by the affidavit of claimant or by
If it is an action to recover personal property, it is only the the agreement of the respective claimants if there are
value of that personal property that will serve as basis for more than one, or from the corresponding tax declarations
determining jurisdiction. Although it is not important for of the real property. Their decisions in these cases shall
purposes of jurisdiction, you have to specify the amount be appealable in the same manner as decisions of the
of interest and damages, the attorney’s fees, litigation RTCs (as amended by RA 7691)
expenses and cost of suit that you would like to recover
from the defendant because they will be included in the Monte: There are cases that are supposed to be within
determining the amount of filing fee that you will be the jurisdiction of the RTC which the MTC may entertain
paying. and hear and which the SC may delegate to the Municipal
Trial Courts.
What if you did not specify the amount of damages
and/or the attorney’s fees? The court will not accept What are these cases?
your complaint because it will not be able to determine Cadastral or Land Registration cases
how much will be the cost of the filing fee.
Where will you file the case? You file with the RTC but
You have to state your claim, the principal amount you the Supreme Court may delegate that in the Municipal
seek to recover, the interest, damages, attorney’s fees, Trial Court in the following instances:
litigation expenses and cost of suit for purposes of (a) Cadastral or land registration cases covering lots
determining the amount of filing fee. where there is no controversy or opposition
(b) Contested lots where the value of which does not
exceed 100K

Where there are several claims or causes of actions Such value of the land shall be ascertained by the affidavit
between the same or different parties, embodied in the of claimant or by the agreement of the respective
same complaint, the amount of the demand shall be the claimants if there are more than one, or from the
totality of the claims in all the causes of action, corresponding tax declarations of the real property. The
irrespective of whether the causes of action arose out of decisions in these cases shall be appealable in the same
the same or different transactions. manner as decisions of the RTCs.

Monte: In cases of action that contains several causes of IOW, when the MTC decides a case of cadastral and land
action, the totality of ALL your claim will be the basis of registration cases as part of its delegated jurisdiction, the
determining jurisdiction. This is what we call as the decision of the MTC in these cases is no longer
Totality Rule. appealable to the RTC – you appeal it directly to the
Court of Appeals.
If you file a case against the same defendant or against
several defendants based on several causes of actions Why can’t you appeal to the RTC?
which you joined in one complaint – this is what we call Because it is a delegated jurisdiction from the RTC to the
us joinder of causes of action – the basis of determining MC. It is like that the case was acted by the RTC. The
the jurisdiction of the court is the total claim. You add up municipal judge is acting on behalf of the RTC. So why
all the claims you have. If the totality of your claim
should it be appealed to RTC? The remedy is to appeal
to the Court of Appeals.

Delegated jurisdiction of 1st level courts assigned by SC

to hear and decide cadastral and land registration cases
covering:
(a) Lots where there is no controversy or opposition
(b) Contested lots the value of which does not exceed
100K, the value is to be ascertained:
1. By the claimant’s affidavit
2. By agreement of the respective claimants, if there are
more than one; or
3. From corresponding tax declaration of the real
property

MTC decisions in cadastral and land registration cases

are appealable in the same manner as RTC decisions,
since MTCs acting in their delegated capacity are treated
under law like RTCs.

Special Jurisdiction of the MTC

Section 35. Special Jurisdiction in certain cases – In the

absence of all the Regional Trial Court Judges in a
province or city, any Metropolitan Trial Court Judge,
Municipal Trial Court Judge, MCTC Judge may hear and
decide petitions for a writ of habeas corpus or
applications for bail in criminal cases in the province
or city where the absent RTC Judges sit.

Monte: This will apply in a place where there is only one

Judge and the judge is not around. For example, in the
past there is only one RTC judge for the entire Northern
Cebu – at least in the entire fourth congressional district.
What happens if there is a habeas corpus case filed which
requires an urgent action but the only RTC Judge is not
around? The Municipal Trial Court Judge may act on this
petition.
What are these cases where the MTC Judge may
exercise its special jurisdiction?
1. Petitions for writ of habeas corpus
2. Applications for bail in criminal cases
 New Rules on Civil Procedure and shall not diminish, increase, or modify substantive
rights. Rules of procedure of special courts and quasi-
Brief Historical Background on the Development of judicial bodies shall remain effective unless disapproved
the Civil Procedure in the Philippines by the Supreme Court.

August 7, 1901 Monte: These amendments were done by the SC of the

− Code of Civil Procedure (Act 190) Philippines. This is because the SC, under the
− This was during the American regime. The Americans Constitution, is vested with the rule-making power. They
were the first to introduce to us the concept of civil can promulgate rules that will govern the procedures in all
procedure, or having a rule for civil cases and a courts.
separate rule for criminal cases.
The Rules of Court has the force and effect of the law,
July 1, 1940 because it has to be observed. And you will use these
− The first Rules of Court was enacted by the Supreme rules in civil or criminal litigations.
Court of the Philippines.
− It already contained the rules on civil procedure. Limitations on the Rule-Making Power of the SC

January 1, 1964 Limitations: (Memory Aid: SUD-mi)

− Revised Rules of Court
− It replaced the 1940 Rules of Court. 1) It shall provide a simplified and inexpensive
− This served as our Rules of Court, even up to the procedure for the speedy disposition of cases;
present. But there were some amendments that were 2) It shall be uniform for all courts of the same grade;
introduced, particularly on the rules of civil procedure. and
3) It shall not diminish, modify, or increase substantive
July 1, 1997 rights.
− New Rules on Civil Procedure
− This was the first amendment of the rules on civil Monte: These limitations are also provided for in the
procedure. Constitution.
− The rules of criminal procedure was first amended
RULE 1
sometime in 1985, and further amended sometime in
GENERAL PROVISIONS
2003. Monte: I’m not sure.
Sec. 1. Title of the Rules
May 1, 2020
− Amendments to the 1997 Rules on Civil Procedure
o Monte: In fact, you are the first batch to study SECTION 1. Title of the Rules. — These Rules shall be
these and apply these new rules in the Bar known and cited as the Rules of Court. (1)
exam.
− It is otherwise known as the 2019 Amendments to the Sec. 2. In What Courts Applicable
1997 Rules on Civil Procedure, but it only took effect
on May 1, 2020, during the pandemic. SECTION 2. In What Courts Applicable. — These Rules
− The amendment, however, covers only the shall apply in all the courts, except as otherwise provided
procedures in the Regional Trial Court. Actually, it by the Supreme Court. (n)
only covers Rules 6 to 35.
Monte: And when it says it “shall apply in all the courts”,
Rule-Making Power of the SC it only refers to the regular courts within the judiciary.

Art. VIII, Sec. 5, par. 5, 1987 Constitution What are these regular courts?
Section 5. The Supreme Court shall have the following A: We have:
powers: 1) Municipal Trial Court, et. al. – these are called the
first-level courts.
xxxx 2) Regional Trial Courts – they are called the
second-level courts.
(5) Promulgate rules concerning the protection and 3) Court of Appeals
enforcement of constitutional rights, pleading, practice, 4) Supreme Court
and procedure in all courts, the admission to the practice
of law, the integrated bar, and legal assistance to the Monte: These rules will likewise apply to special courts
underprivileged. Such rules shall provide a simplified and which are still considered to be under the judiciary.
inexpensive procedure for the speedy disposition of
cases, shall be uniform for all courts of the same grade,

Gaviola Sevilla Torres

What are these special courts? Classification of Civil Actions
A: These are:
1) Family courts – which are actually RTCs; A civil action can be classified in 4 ways, namely:
2) Shari’a courts; 1) As to its nature;
3) CTA; and 2) As to its cause;
4) Sandiganbayan 3) As to the place of filing; and
4) As to its object.
Note: CTA and Sandiganbayan are included in the
list because they are appealable to the SC. (1) As to Nature

Do these rules apply to quasi-judicial bodies? a. Ordinary Civil Actions (Rules 1-56)
A: No, because these quasi-judicial bodies have their own b. Special Civil Actions (Rules 62-71)
or are governed by their own procedures. Normally, the
law creating these quasi-judicial bodies also provide for Why are they called “special” civil actions?
the procedures to be observed in the litigations in these A: Because they are governed by special rules not found
bodies. However, the Rules of Court will apply to these in ordinary civil actions. But it doesn’t mean that in special
judicial bodies only suppletorily. civil actions, the rules on ordinary civil actions no longer
apply. They still apply, but only suppletorily.
Sec. 3. Cases Governed
Monte: They are called special civil actions because they
are primarily governed by special rules. But in the
absence of a specific provision in the rules that created
that special civil action, the rules in ordinary civil actions
may be applied suppletorily. This was illustrated in the
case of Amberti vs. Court of Appeals.

AMBERTI VS. CA
195 SCRA 659

Monte: This was a case where the court could not find an
applicable rule in the special civil action of certiorari. So,
what the SC did was to apply the rules of ordinary civil
actions in resolving that issue.

This was actually a petition for certiorari filed under Rule

65. And then he withdrew it, and then later on, he refiled
it. Now, what would be the effect of that?

In the Rules of Court, if you appeal, and then you withdraw

your appeal, then it does not toll the running of the
prescriptive period to file an appeal. But in certiorari –
although certiorari is not an appeal, it is considered to be
an original action – what will happen when you withdraw
In what cases are the Rules of Court applicable? your petition for certiorari under Rule 65? And then you
A: later re-file it? You know, in Rule 65, you have 60 days to
1) Civil; file a petition, right?
2) Criminal; and
3) Special proceedings. If you filed a petition for certiorari within 60 days, that’s
fine. But then you withdraw it. And then, you refile it. What
Monte: That’s why when you look at the Rules of Court, does it mean? If you refile it, and the original 60-day
the first topic is civil procedure. period had already expired, then you also already lost the
right to refile it, just like in an ordinary civil action.
What is a civil action?
A: A civil action is one by which a party sues another for So in this case, the SC applied the rules in an ordinary
the enforcement or protection of a right, or the prevention civil action simply because the rules on special civil
or redress of a wrong. A civil action may be either: actions governing certiorari does not have a provision
1) Ordinary regarding the effect of withdrawal.
2) Special

Gaviola Sevilla Torres

Kinds of Special Civil Actions b. Transitory – an action you can file either in this
place or that place; an action that follows the
1) Interpleader (Rule 62) residence of the parties, such as a personal
2) Declaratory Relief (Rule 63) action.
3) Review of Judgment of COMELEC and COA (Rule
64) Monte: As in the case of a personal action. In a
4) Certiorari, Prohibition and Mandamus (Rule 65) case of a personal action, it can be filed in the
5) Quo Warranto (Rule 66) place of the plaintiff or in the place of the
6) Expropriation (Rule 67) defendant, at the option of the plaintiff.
7) Foreclosure of Mortgage (Rule 68)
8) Partition (Rule 69) (4) As to Object
9) Forcible Entry and Unlawful Detainer (Rule 70)
10) Contempt (Rule 71) a. Action in personam
− Any action where the judgment of the court
Monte: We will discuss these in the later part of our binds only the parties to the action, and their
discussions. privies or successors-in-interest
− Example: An action to recover a property,
(2) As to Cause whether real or person, from the defendant.
Thus, a real action can at the same time be
a. Real action; an action in personam.
b. Personal action; and
c. Mixed action. b. Action in rem
− Any action where the judgment of the court
Real Action binds not only the parties to the case, but the
An action where the issue involved is title, ownership, whole world.
possession or interest over a real property. − Example: Annulment of marriage
− Examples: Accion publiciana, quieting of title,
ejectment, partition, foreclosure of mortgage, etc. c. Action quasi in rem
− Is actually an action in personam because it
Monte: An action to recover real property. (e.g. accion is directed only against a particular person,
publiciana, accion reivindicatoria, ejectment, quieting of but the purpose of the proceeding is to
title) subject his property to the obligation or lien
burdening it.
Personal Action − Example: Foreclosure of real estate
An action founded on the privity of contract, for a sum mortgage
of money, quasi-delicts, recovery of personal property,
damages, etc. A/N: Dean Monte spells the “in” as “en”. For purposes of
the exam, you may want to follow his spelling. Or not.
Monte: One which involves recovery of money or
recovery of personal property. Monte: There are many who are confused by these, in
that they correlate action in personam with a personal
Mixed Action action, and also identify an action in rem with a real action.
Both real and personal. (e.g. when you file an accion And that is wrong.
publiciana and at the same time, you ask for damages.
An action for damages is personal.) How do you distinguish a real action from an action
in rem? How do you distinguish a personal action
Civil Procedure, vol. 1, Riano, 2016 from an action in personam?
An action is “real” when it affects title to or possession of A: The basis in determining whether it is an action in rem
real property, or an interest therein. All other actions are or it is a real action is this: where it is an action to recover
personal actions. a real property – what is the cause there, to recover a real
property – that is called a real action.
(3) As to its venue, or place of filing
Action in rem and action in personam, on the other hand,
a. Local – if it can only be filed in that particular are not concerned with the type of property to be
place. recovered. Rather, they are concerned more on the
effects of the judgment of the court.
Note: Usually, this is what governs real actions.
Real actions are filed in the area where the So, when you say an action in personam, it is an action
property is located. filed by the plaintiff against the defendant, and the
decision is generally binding only in between them and

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their successors-in-interest or heirs. While an action in you have no
rem is not about real property, but it is an action where opponent there.
the effects of the judgment is binding upon the whole
world. That is why, in a
special
Monte: So, a real action can also be an action in proceeding, the
personam. If you file a case of quieting of title or accion title of your case
publiciana, you are filing a case against the defendant; will normally start
you are enforcing your right against a particular action, with “In Re Petition
that is an action in personam. And that judgment only xxx”.
binds the two of you. The period to The period to
appeal to the CA is appeal is 30 days,
But an action can be a personal action, but at the same generally 15 days and the form of
time it could be an action in rem. A personal action, like record on appeal is
an action for annulment of marriage, is a personal action required.
of the wife against the husband. But the effect of the Period to
judgment of the court granting the annulment is binding Appeal
Monte: So this
on the whole world, and it is an action in rem. So, it is a requires the filing
personal action, but also an action in rem. of (1) a notice of
appeal, and (2) a
Action Quasi in Rem record of appeal.
Monte: It is an action quasi in rem because at the outset,
it is an action in personam, but later on, the effect will be Notice of Appeal and Record of Appeal
binding upon the whole world.
The notice of appeal shall indicate the parties to the
One good example is foreclosure of mortgage. You appeal, the judgment or final order or part thereof
borrowed money from me. It is secured by a mortgage on appealed from, and state the material dates showing the
your land. You failed to pay. I filed an action against you, timeliness of the appeal. A record on appeal shall be
and that action is an action in personam because that is required only in special proceedings and in other cases of
supposed to be between the two of us only. I have the multiple or separate appeals.
option to either file a case for the collection of a sum of
money or to foreclose the mortgage. I decided to Sec. 4. In What Cases Not Applicable
foreclose the mortage. That is an action in personam.
SECTION 4. In What Cases Not Applicable. — These
But once the action is granted by the court, and the Rules shall not apply to election cases, land registration,
property is sold in a public auction, the effect of that cadastral, naturalization and insolvency proceedings, and
judgment is in rem. It binds the whole world. Because other cases not herein provided for, except by analogy or
once that property is sold in a public auction, whoever in a suppletory character and whenever practicable and
buys it, his right should be respected by everyone. convenient. (R143a)

Civil Action vs. Special Proceedings In what cases are the Rules of Court not applicable?
A: In the following cases: (MemAid: ELINO)
Special 1) Election cases;
Civil Action
Proceedings 2) Land registration cases;
In CA, one sues In SP, a party 3) Naturalization;
another for the seeks to establish 4) Insolvency proceedings; and
Definition
enforcement of a a status, a right, or 5) Other cases not herein provided, except by
right. a particular fact. analogy or suppletorily.
There are There is no definite
generally two adverse party. Why are these rules not applicable to these cases?
parties. A: It’s because these cases are governed by their own
Example: rules:
Adoption. You 1) Election cases – Election Code of the Philippines;
Number of
have no opponent 2) Land registration cases – Land Registration Act;
Parties
there. Or if you 3) Naturalization – Naturalization Law; and
seek to establish 4) Others.
your status as an
illegitimate child of Monte: But as I’ve mentioned, while these cases have
a certain person, their own set of rules to be followed, in the absence of a

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particular provision in their rules, the Rules of Court can MANCHESTER DEVELOPMENT CORPORATION
be applied suppletorily. VS. CA
149 SCRA 562
Sec. 5. Commencement of Action
Monte: This was a landmark case because it is here
SECTION 5. Commencement of Action. — A civil action where the Supreme Court became very very strict when
is commenced by the filing of the original complaint in the SC said that if you did not pay the filing fee, but if you
court. If an additional defendant is impleaded in a later paid the filing fee but not the correct amount, because you
pleading, the action is commenced with regard to him on want to avoid paying a higher fee, the court shall dismiss
the date of the filing of such later pleading, irrespective of your complaint.
whether the motion for its admission, if necessary, is
denied by the court. (6a, R2) You know what prompted the SC to be very strict in this
case? It’s because some lawyers are very wise. In order
− A civil action is commenced by the filing of the original to avoid paying the correct amount of the filing fee, they
complaint in court. will not specify the amount. Diba, as I have mentioned to
− A complaint is filed in court either (1) personally, or you before, that when you file a complaint, the basis of
(2) by registered mail. determining the jurisdiction of the court is only the
− Payment of docket fees is what really commences principal claim. The interest, the damages, the
the action. attorney’s fees, the costs of suit and litigation expenses,
they are not included in determining jurisdiction. But they
Monte: Now, it is said that a civil action is commenced by are very necessary to be alleged clearly because they are
the filing of the original complaint in court. In other words, important in the determination of the filing fee.
by delivery of the complaint to the Clerk of Court. But in
reality, a civil action is commenced by the payment of the Now, some lawyers before, when they file a civil case,
docket fees. they would demand gargantuan amounts of damages.
Pataka lang silag demand ug damages. Mangayo silage
How do you file your complaint? Well, you can do it by millions maski gamay lang kaayo ang violation. Then the
personally delivering it to the Clerk of Court and having it SC said, okay, you would have to pay the filing fee for
received by them, or you can mail it, addressed to the those millions that you’re asking. And that means you
Clerk of Court. But whether you deliver it personally or you have to pay a big amount of money for the filing fee alone,
mail it, I can assure you, the Clerk of Court will not accept and you are not assured that the court will grant what you
your complaint without the payment of the docket fee. are asking. In fact, my experience tells me, that 70% of
Bayad una. So, it is actually the payment of the docket fee the damages asked by the lawyers in their complaints are
that commences the civil action. not granted by the court. So, saying ang imong gibayran
nga filing fee kay ang award is not a very big amount.
Effects of Non-Payment of Filing Fees
So, some lawyers, as I’ve said, from then on, they would
So what happens if you did not pay the filing fee? ask for damages, moral damages for the sleepless nights,
A: As I’ve said, if you do it now, the Clerk of Court will not in an amount “left to the sound discretion of the court.” So
accept your complaint. di na nila i-specify kung pila ang damages para di maapil
sa computation sa filing fee. And it has become a practice
But what happens if the Clerk of Court accepted it? Is already by almost all lawyers in order to avoid paying a
it considered filed, and the civil action commenced? large filing fee.
A: The answer is no.
The SC was alarmed, and so, in this case, it said, when
What is the effect if you paid the filing fee, but it is not you ask for damages, and you did not specify it in order
the correct amount? not to pay the filing fee, we will dismiss your case. And
A: Your civil action is still not considered commenced until because of that, many members of the legal community
you pay the correct amount of the filing fee. protested against that very strict ruling. So, the SC later
on became lenient in the subsequent cases, like in the
Monte: In fact, there was a time when the Supreme Court case of Sun Insurance Office, Ltd. Vs. CA.
was very, very strict on the payment of the filing fee. That
if you did not pay the filing fee, or if you paid but it was not Important:
the correct amount, your complaint can be dismissed by
the court. The SC frowns at the practice of counsel who filed the
original complaint by omitting any specification of the
amount of damages in the prayer, although the real
amount is alleged in the body of the complaint. This is
clearly intended for no other purpose than to evade the
payment of correct filing fees or to mislead the docket

Gaviola Sevilla Torres

clear in the assessment of filing fee. Such fraudulent Because as I’ve said before, it has been the practice of
practice was compounded when Manchester, through lawyers to leave the amount of moral damages to the
another counsel, filed an amended complaint, deleting all “sound discretion of the court” it is going to award. In the
mention of the amount of damages being asked for in the event the court will award damages to the plaintiff, where
body of complaint. It was only when in obedience to the no corresponding docket fee was paid for the amount,
order of the SC that the amount of damages be specified then that corresponding filing fee for that award will
in the amended complaint, that Manchester wrote the constitute a lien on the judgment awarded.
damages in a reduced amount in the body of the
complaint but not in the prayer thereof. The design to Ruling: Such awards or claims not specified in the
avoid payment of the required docket fee was obvious. pleading refer only to damages arising after the filing of
the complaint or similar pleadings. Accordingly, the
To put a stop to this irregularity, henceforth all complaints, amount of any claim for damages arising on or before the
petitions, answers and other similar pleadings should filing of the complaint or any pleading should be specified.
specify the amount of damages being prayed for not only The exception contemplated as to claims not specified, or
in the body of the pleading but also in the prayer, and said to claims which although specified, are left to the
damages shall be considered in the assessment of the determination of the court are limited only to damages that
filing fees in any case. Any pleading that fails to comply may arise after the filing of the complaint or similar
with this requirement shall not be accepted nor admitted, pleadings since it will not be possible for the complainant
or shall otherwise be expunged from the record. to specify or speculate on the amount thereof.

SUN INSURANCE OFFICE, LTD. VS. CA Monte: So, the SC clarified that the court can only award
170 SCRA 274 damages that was not specified in the complaint if these
damages occurred only after the filing of the complaint.
Monte: Here, the SC said, okay, if the amount of But if the damages occurred before the filing of the
damages claimed by the plaintiff is not specified in the complaint, and you did not allege it, then the court should
complaint, and so they were not able to pay the filing fees not award those damages.
for the damages claimed, the court will just call the
attention of the plaintiff to amend his complaint, and Actually, if you are asking for moral damages because of
specify now how much exactly is he asking by way of what the defendant did to you, well, at the time of the filing
moral/exemplary/nominal damages. of the complaint, you should already know how much
damages you are entitled to for your sleepless nights,
And so, if you will not specify that, then the court will not wounded feelings, et cetera! If you did not specify that,
award damages. But the court will not dismiss your then the court will not grant that.
complaint, as long as you paid the filing fees on the
principal claim. So, what are those damages that accrue? Actual
damages, for example, in vehicular accidents. Uh,
reckless imprudence cases. You file a case against the
TACAY VS. RTC OF TAGUM, DAVAO DEL NORTE
negligent driver. You still don’t know how much
180 SCRA 433
hospitalization expenses you incur because at the time
you filed the case, you are still undergoing treatment. So,
Monte: The Supreme Court said, if you have already paid
you cannot state that in your complaint, kung pila imong
the filing fees – because the case of Tacay was a real
actual damage. But during the trial, imong ma probahan
action, so he filed the corresponding amount of the filing
kung pila jud imong nagasto because you are able to
fee for the value of the land sought to be recovered – then
present receipts. But during the time you filed, you still
they should not dismiss the case. The court should just let
don’t know pila gyud. So, that is the kind of damages that
the plaintiff amend his complaint, and specify the amount
the court can award to you even if you have not paid the
of damages that he is asking.
filing fee for that amount of damages.
So, the amount of the docket fees to be paid should be
computed on the basis of the amount of the damages Not discussed, but in the slides:
stated in the complaint.
SUSON VS. CA
278 SCRA 284
AYALA CORP. VS. MADAYAG
G.R. No. L-88421, January 30, 1990
Respondent Odilao filed a P5.15Mn civil suit for damages
against Suson before the RTC Leyte. Odilao claimed that
Monte: Where subsequently, the judgment awards a
Suson made false and groundless accusations of graft
claim not specified in the pleading, or if specified, has
and corruption against him before the Office of the
been left to the determination of the court, the additional
Ombudsman, and thereafter caused their publication.
filing fee thereon shall constitute a lien on the judgment.
Odilao paid the amount of P25.6k in docket fees to the
RTC. Later, Suson filed a motion to dismiss the case on

Gaviola Sevilla Torres

the ground of improper venue, alleging that Odilao resides entirely separate case from that dismissed by RTC Leyte.
in Cebu and not in Leyte. The motion was granted. Also, the order dismissing the case in RTC Leyte is
already final and to re- file would be error. As a remedial
Odilao then requested authorization from the SC Court measure, Odilao can still file another complaint, but this
Administrator to have the filing fee previously paid in RTC time in the court of proper venue. Note, however, that the
Leyte be considered as payment for the filing fees dismissal of the complaint filed in the court of proper
payable in RTC Cebu. The Administrator authorized the venue did not stop the running of the prescriptive period
same, and RTC Cebu docketed his case without requiring within which to file his complaint in the court of proper
Odilao to pay the prescribed filing fees. Afterwards, Suson venue.
filed another motion to dismiss, arguing lack of payment
of filing fees. DE LEON VS. COURT OF APPEALS
287 SCRA 94
Can a party litigant whose complaint has been dismissed
by the court for improper venue seek authorization from Respondents filed in the RTC Quezon City a complaint for
the SC through the Court Administrator to re-file his annulment or rescission of a contract of sale of two (2)
complaint in the proper venue without paying docket fees parcels of land against De Leon. Upon filing the
anew? complaint, the respondents paid the docket and legal fees
in the total amount of P610.00.
No. The complaint can’t be filed without paying the
prescribed docket fees again. Later, De Leon moved to dismiss the complaint on the
ground that the RTC didn’t acquire jurisdiction over the
Based on jurisprudence, the following are the pertinent case because respondents' didn’t pay the correct amount
rules: of docket fees. Petitioners contended that respondents
1. It isn’t simply the filing of the complaint or appropriate should’ve paid docket fees in the amount of P21,640.00,
initiatory pleading, but the payment of the prescribed based on the alleged value of the two (2) parcels of land
docket fee, that vests a trial court with jurisdiction over subject matter of the contract of sale sought to be
the subject matter or nature of the action. Where the annulled.
filing of the initiatory pleading is not accompanied by
payment of the docket fee, the court may allow In assessing the docket fees to be paid for an action for
payment of the fees within a reasonable time but in annulment or rescission of a contract of sale, should the
no case beyond the applicable prescriptive or filing fees be based on the value of the real property-
reglementary period. subject matter of the contract, or should it be considered
as an action incapable of pecuniary estimation?
2. The same rule applies to permissive counterclaims,
third-party claims and similar pleadings, which shall It is one incapable of pecuniary estimation.
not be considered filed until and unless the filing fee
prescribed therefor is paid. The court may also allow In determining whether an action is one the subject matter
payment of said fee within a reasonable time but also of which is not capable of pecuniary estimation, this Court
in no case beyond its applicable prescriptive or has adopted the criterion of first ascertaining the nature of
reglementary period. the principal action or remedy sought. If it is primarily for
the recovery of a sum of money, the claim is considered
3. Where the trial court acquires jurisdiction over a claim capable of pecuniary estimation, and whether jurisdiction
by the filing fee but, subsequently, the judgment is in the municipal courts or in the courts of first instance
awards a claim not specified in the pleading, or if would depend on the amount of the claim. However,
specified the court has left the same for where the basic issue is something other than the right to
determination, the additional filing fee therefor shall recover a sum of money, or where the money claim is
constitute a lien on the judgment. It shall be the purely incidental to, or a consequence of, the principal
responsibility of the Clerk of Court of his duly relief sought, such actions are cases where the subject of
authorized deputy to enforce said lien and assess and the litigation may not be estimated in terms of money, and
collect the additional fee. are cognizable exclusively by courts of first instance.

However, while paying the prescribed docket fee is a Actions for specific performance of contracts have been
jurisdictional requirement, its non-payment doesn’t expressly pronounced to be exclusively cognizable by
automatically cause the dismissal of the case if the non- courts of first instance. And no cogent reason appears
payment isn’t beyond the applicable prescriptive or why an action for rescission (or resolution) should be
reglementary period. differently treated, a "rescission" being counterpart, so to
speak, of "specific performance".
Further, Odilao’s complaint can’t be deemed “re-filed” in
RTC Cebu because it wasn’t originally filed in the same An action for rescission of contract is one that cannot be
court but in RTC Leyte. The case in RTC Cebu is an estimated and although eventually the result may be the

Gaviola Sevilla Torres

recovery of land, it is the nature of the action as one for Failure to state a cause of action is different from lack of
rescission of contract which is controlling. cause of action as the basis for the dismissal of the
Sec. 6. Construction complaint.

SECTION 6. Construction. — These Rules shall be BUTUAN DEVELOPMENT CORP V. CA

liberally construed in order to promote their objective of Gr No. 197358, April 5, 2017
securing a just, speedy and inexpensive disposition of All the elements of a cause of action must be stated in the
every action and proceeding. (2a) complaint. Absence of any of the elements of a cause of
action is a ground for the dismissal of the complaint. The
Liberal Construction of the Rules ground of the dismissal will be “failure to state a cause of
action”. Failure to state a cause of action is different from
GEN: The Rules shall be liberally construed in order to “Lack of Cause of Action”. The remedy of the first is a
promote their objective of securing a just, speedy and motion to dismiss, while the remedy of the second is a
inexpensive disposition of every action and proceeding. demurrer to evidence.

XPN: The rules on the reglementary period to file Dean: If you file a complaint in Court and one of the four
pleadings or appeals. elements of a cause of action is absent, the defendant
may ask for the dismissal of the complaint right away even
Monte: The court cannot be liberal on the reglementary without filing your answer, even under the new rules now.
periods, because these are necessary for a just and So, if there is failure to state a cause of action, the
speedy disposition of cases. They have to be strictly complaint can immediately be dismissed; there is no need
complied with. for a hearing.

RULE 2 In the case of lack of cause of action, all the elements of

CAUSE OF ACTION a COA are present in the complaint but during the trial of
the case, the plaintiff was not able to prove all the
elements of a cause of action. What will the defendant
RULE 2
do? Instead of presenting his evidence, he may ask for
Cause of Action
the dismissal of the complaint for lack of cause of action,
Section 1. Ordinary civil actions, basis of. — Every that the plaintiff was not able to prove all the elements of
ordinary civil action must be based on a cause of a cause of action.
action. (n)
Failure to state a cause of action is a remedy given even
before you file an answer and if you can show to the court
Section 2. Cause of action, defined. — A cause of
that the complaint fails to state a valid cause of action,
action is the act or omission by which a party violates a
right of another. (n) then there is no need to proceed to trial and the court can
outrightly dismiss.
Section 3. One suit for a single cause of action. —
NOTE FROM THE TRANSCRIBERS: Failure to state a
A party may not institute more than one suit for a single
cause of action is no longer a ground for a motion to
cause of action. (3a)
dismiss under the Amended Rules. It is, however, one
of the enumerated Affirmative Defenses that must be
CAUSE OF ACTION
set out in the Answer or else it is deemed waived. [Sec
It is an act or mission by which a party violates a right of
12, Rule 8]
another.
(See 2020 UP BOC Remedial Law, page 26)
Elements of Cause of Action:
Failure to State Cause of Lack of Cause of Action
a. A right pertaining to the plaintiff
b. A correlative obligation of the defendant Action
c. Violation of plaintiff’s right by the defendant Refers to the insufficiency Refers to a situation
d. Damage to the plaintiff of the allegations in the where the evidence failed
pleading. to prove the cause of
Dean Monte: Damage is a very important element. In action.
torts and damages, there is “damnum absque injuria” The proper remedy when The proper remedy when
which means there is damage but there is no injury there is a failure to state a the complaint is not based
meaning there is no right violated, then there could be no cause of action is to on a cause of action is to
basis for damages. allege the same as an file a Demurrer of
affirmative defense in Evidence. [Rule 33]
What if one of the elements is not present? the Answer. [Sec. 12(4),
Your case will be dismissed. All the elements must be Rule 8]
present on the ground of failure to state a cause of action.

Gaviola Sevilla Torres

 RIGHT OF ACTION Singleness of a Cause of Action
The singleness of a cause of action is determined by the
Refers to the right of the plaintiff to bring an action and to singleness of the delict or wrong committed by the
prosecute that action until final judgment. defendant and not by the number of remedies that the law
grants the injured party.
Elements of Right of Action
Dean: As a general rule, when there is only one cause of
1) Plaintiff must have a good cause of action; action, then there should only be one civil action that you
2) Plaintiff must have performed all conditions can file in court. You cannot split a single cause of action
precedent to the filing of the action in court. into two or more cases.

Dean: For example, if it is a suit between members of the For example, you borrowed money from me evidenced by
family, you have to exert earnest efforts to settle the a promissory note in my favor stating that you will pay me
matter amicable and you have to allege that clearly in your the loan obligation of 1 Million Pesos plus stipulated
complaint. If you fail to state that, your complaint will be interest of 1% per month. You failed to pay and have been
dismissed. in default for already 6 months. I filed a case to recover
the 1M and later on I filed a separate case to recover the
If it is a civil action between the residents of a same interest of P60,000. Can I do that? No. That is splitting a
barangay, you cannot go directly to court. You have to go cause of action. If I do that, the case can be dismissed on
to the Lupon Tagapamayapa for possible conciliation. If it the ground of litis pendentia. If the first case filed was
cannot be settled, the lupon will issue a certificate to file already decided by the court, then the basis for the
action. That is a condition precedent before you can file a dismissal will be res judicata.
complaint in court.
If there is only one delict or wrong done, even if there are
Then there is the Exhaustion of Administrative several remedies, you can only file one case in court. For
Remedies. You cannot go to court right away if you did example, you failed to pay me when the loan becomes
not exhaust all administrative remedies. Your complaint due. What are my remedies?
will be dismissed if you cannot do that. 1) I can file a case for specific performance to
compel you to pay, or a case for collection for sum
CAUSE OF ACTION V. RIGHT OF ACTION of money;
2) If there is a collateral, I can foreclose the
1. Cause of Action is the delict or wrong whereas mortgage.
the Right of Action refers to the right of plaintiff to
file action; But I cannot do both collection and foreclosure as there is
2. Cause of Action is created by substantive law, only one delict or wrong. I cannot avail of both remedies
whereas Right of Action is regulated by at the same time.
procedural law;
3. Right of Action may be lost by prescription while If we enter into a contract and you violated the terms
Cause of Action cannot. of the contract, what are my remedies?
1) Specific Performance; or
Dean: There is no prescription for a cause of action but 2) Ask for the rescission of the contract.
there is a prescription for a right of action. The rules But I cannot avail of both.
provide that you have to bring this action in court within a
certain period. Do not wait for 30 years before you can file RULES TO DETERMINE SINGLENESS OF CAUSE OF
that. ACTION
SPLITTING A CAUSE OF ACTION
RULE 1 – A contract embraces only one cause of
Section 4. Splitting a single cause of action; effect action, even if it contains several stipulations;
of. — If two or more suits are instituted on the basis of
the same cause of action, the filing of one or a RULE 2 – A contract which provides for several
judgment upon the merits in any one is available as a stipulations to be performed at different times gives
ground for the dismissal of the others. (4a) rise to as many causes of action as there are
violations.
It is the practice of dividing one cause of action into
different parts and making each part a subject of a RULE 3 – All obligations that have already matured
different complaint. must be integrated in one complaint;

Effect of Splitting RULE 4 – Failure to comply with one of several

Dismissal of the case on the ground of Litis Pendentia or stipulations in a continuing contract constitutes total
Res Judicata. breach and a single cause of action for damages

Gaviola Sevilla Torres

arises from such breach even if the future periodic a) Whether the same evidence would support
deliveries are not yet due. and sustain both causes of action (Same
Evidence Test);
Dean: You are a supplier of construction materials. I b) Whether the defenses in one case may be
ordered 100 bags of cement, 50 pieces of steel bars, and used to substantiate the complaint in the other;
70 pieces of plywood to be delivered at my house on and
Wednesday, January 13, 2021. On Wednesday, you c) Whether the cause of action in the second
failed to deliver all construction materials. The contract case existed at the time of filing of the first
contains three stipulations (cement, steelbars, plywood) complaint. [Umale v. Canoga Park
but since there is only one violation committed, only one Development Corp., G.R. No. 167246 (2011)]
case can be filed because they were supposed to be
performed on the same day. There is only a single cause Plaintiff's remedy if other reliefs not included in the
of action. complaint: Amendment

But if a contract provides for several stipulations to be In the event that a plaintiff has omitted to include in the
performed at different times, it may give rise to as many complaint one or several other reliefs to which he may
causes of actions as there are stipulations. If you be entitled, the proper remedy of the plaintiff is not to
borrowed 300,000 on 3 installments, there is only one institute another or several other actions – instead he
contract but if you promised to deliver 100,000 on three should move to amend the complaint to include the
different dates (January 31, February 28, March 31) and omitted relief or reliefs [Bayang v. CA, G.R. No. L-
you fail to pay when the first installment becomes due, 53564 (1987)]
then I already have one cause of action against you. If you
failed to pay the 2nd installment, I can file another case Dismissal as Effect of Splitting of Cause of Action
against you. And if you still fail to pay the 3rd installment, The filing of one or a judgment upon the merits in any
that is another cause of action. one is available as a ground for the dismissal of the
others [Sec. 4, Rule 2].
However, Rule 3 states that all obligations that have
already matured must be integrated in one complaint. In The defendant facing a complaint which is infirm due to
the same example, if you failed to pay the first installment the plaintiff splitting causes of action may either allege
on January 31, I can file a case right away. When the 2nd the infirmity as an Affirmative Defense in his Answer
installment becomes due and you failed to pay, I can file [Sec. 5(b), Rule 6], or file a Motion to Dismiss on the
another case. When the 3rd becomes due, I can also file following grounds:
a third case. However, if I decide to file a case on April a. There is another action pending between the
only, then I have to consolidate all the three different same parties for the same cause [Sec. 12
causes of action into one complaint because they have all (a)(2), Rule 15], or
matured already. b. The cause of action is barred by a prior
judgment. [Sec. 12 (a)(3), Rule 15]
Rule 4 states that failure to comply with one of several
stipulations in a continuing contract constitutes total JOINDER OF CAUSE OF ACTION
breach and a single cause of action for damages arises
from such breach even if the future periodic deliveries are Section 5. Joinder of causes of action. — A party
not yet due. The best example is an obligation to pay may in one pleading assert, in the alternative or
money on different dates. You executed a promissory otherwise, as many causes of action as he may have
note stating you will pay me every end of the month for 6 against an opposing party, subject to the following
months starting January 31. Now, when the first conditions:
installment becomes due on Jan 31 and you suddenly
deny the entire obligation, what will I do? I have to file a (a) The party joining the causes of action shall comply
case for the entire obligation. It is a continuing obligation with the rules on joinder of parties;
and your failure to comply with one of the several
stipulations in a continuing obligation constitutes total (b) The joinder shall not include special civil actions or
breach and a single cause of action for damages arises actions governed by special rules;
from such breach.
(c) Where the causes of action are between the same
From UP BOC Remedial Law 2020: parties but pertain to different venues or jurisdictions,
the joinder may be allowed in the Regional Trial Court
Tests to Determine a “Single” Cause of Action: provided one of the causes of action falls within the
The tests to ascertain whether two suits relate to a jurisdiction of said court and the venue lies therein; and
single or common cause of action are:

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 (d) Where the claims in all the causes action are publiciana cases against the same defendant be joined
principally for recovery of money, the aggregate together? Yes.
amount claimed shall be the test of jurisdiction. (5a)
But suppose, as regards Lot A, the defendant has
occupied it for 6 months only while Lot B was occupied for
A party may in one pleading assert, in the alternative or 2 years already. Thus, you cannot file for ejectment for Lot
otherwise, as many causes of action as he may have B. Can you join the accion publiciana and ejectment in
against an opposing party, subject to the following one case? No. You cannot join a case governed by the
conditions: ordinary rules with a case governed by the special rules.
Ejectment is one of the special civil actions.
1) The parties joining the causes of action shall
comply with the rules on joinder of parties; The third rule states that where the causes of action are
2) The joinder shall not include special civil actions between the same parties but pertain to different venues
governed by special rules; or jurisdictions, the joinder may be allowed in the Regional
3) Where the causes of action are between the Trial Court provided one of the causes of action falls
same parties but pertain to different venues or within the jurisdiction of said court and the venue lies
jurisdictions, the joinder may be allowed in the therein. For example, you have a friend who is indebted
Regional Trial Court provided one of the causes to you. He executed 2 promissory notes: one for 200,000
of action falls within the jurisdiction of said court and the other for 500,000. He failed to pay. The first one
and the venue lies therein; and is cognizable by the MTC and the other is cognizable by
4) Where the claims of all the causes of action are the RTC. Can you join them in one case? Yes. You can
principally for recovery of money the aggregate join them in the RTC.
amount claimed shall be the test of jurisdiction.
The fourth rule states that where the claims of all the
Dean: You can join several causes of action against one causes of action are principally for recovery of money the
or the same person into one case. You can join several aggregate amount claimed shall be the test of jurisdiction.
plaintiffs against a common defendant into one case. Or This is the Totality Rule. If you have several causes of
you can join several defendants versus one plaintiff. This action against the same person and all of these are
is what we call as joinder of causes of action. already due, you can file one case. This is joinder of
causes of action. For purposes of determining jurisdiction,
The first rule refers to joinder of several plaintiffs against it will be the totality of all the claims that will determine
one defendant or several defendants against one plaintiff. which court has jurisdiction.

For example: A Ceres bus met an accident in Sogod MISJOINDER OF CAUSES OF ACTION
where several passengers were injured. Each of the
injured passengers has a cause of action against the bus Section 6. Misjoinder of causes of action. —
line for culpa contractual. Each one of them can file a case Misjoinder of causes of action is not a ground for
against Ceres. But can they not join together and file only dismissal of an action. A misjoined cause of action
one case? Can they not decide to hire only one lawyer? may, on motion of a party or on the initiative of the
Yes. But since they joined together, they must have to court, be severed and proceeded with separately. (n)
comply with the rule on joinder of parties found on Section
6 of Rule 3. Section 6 provides that parties may join There is misjoinder of causes of action when two or more
together in one case either as joinder of party plaintiffs or causes of action were joined in one complaint when they
joinder of party defendants for as long as there is a ought not be joined. For example, you joined Accion
common transaction and they are bound together by a Publiciana case and Forcible Entry case. This is not
common question of fact or law. These several plaintiffs allowed because Forcible Entry case is a special civil
can join together and file a case if they all reside in the action which ought not to be joined with an ordinary civil
same place such as Cebu City. But if one of them is not a action.
resident of the same place, they cannot stop him from
filing a case in Dumaguete City which cannot be joined in If there is misjoinder of causes of action, the remedy is not
the case filed by the majority in Cebu City. dismissal of the case but to ask the court that the
misjoined case be severed and tried separately.
The 2nd rule states that the joinder shall not include
special civil actions governed by special rules. Let us say
you have two parcels of land located in Talamban. While
you were in the US, you did not know that your friend,
without your knowledge and consent, occupied your two
parcels of land in the concept of an owner thinking you
will not come back anymore. You decided to file a case
for accion publiciana against him. Can these two accion

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 RULE 3 the municipal or the local city government are considered
PARTIES TO A CIVIL ACTION juridical persons which can also be parties to a civil action.
Aside from natural and juridical persons, there are also
SECTION 1. Who May Be Parties; Plaintiff and entities authorized by law to become a party of a civil
Defendant.— Only natural or juridical persons, or action. An example is a labor union which is an entity
entities authorized by law may be parties in a civil authorized by law to be a party in a civil action, or the
action. The term "plaintiff" may refer to the claiming party, estate of a deceased person represented by the
the counter-claimant, the cross-claimant, or the third administrator of the estate. Roman Catholic Church is
(fourth, etc.) — party plaintiff. The term "defendant" may also an authorized entity to become a party in a civil
refer to the original defending party, the defendant in a action.
counterclaim, the cross-defendant, or the third (fourth,
etc.) — party defendant. Who may be parties
1. Natural persons (Sec 1 Rule 3)
SECTION 2. Parties in Interest.— A real party in interest
is the party who stands to be benefited or injured by the 2. Juridical Persons (Sec 1, Rule 3)
judgment in the suit, or the party entitled to the avails of (a) The State and its political subdivisions
the suit. Unless otherwise authorized by law or these (b) Other corporations, institutions and entities for public
Rules, every action must be prosecuted or defended in interest or public purpose, created by law, and
the name of the real party in interest. (c) Corporations, partnerships, and associations for
private interest or purpose to which the law grants a
SECTION 3. Representatives as Parties.— Where the judicial personality, separate and distinct from that of
action is allowed to be prosecuted or defended by a each shareholder, partner, or member
representative or someone acting in a fiduciary capacity, (d) [Art. 44, Civil Code]
the beneficiary shall be included in the title of the case
and shall be deemed to be the real party in interest. A 3. Entities authorized by law [Sec. 1, Rule3]
representative may be a trustee of an express trust, a (a) A corporation by estoppel is precluded from
guardian, an executor or administrator, or a party denying its existence, and the members are liable
authorized by law or these Rules. An agent acting in his as general partners [Sec. 21, Corporation Code]
own name and for the benefit of an undisclosed principal (b) A partnership with capital of at least P3,000 which
may sue or be sued without joining the principal except fails to comply with the registration requirements is
when the contract involves things belonging to the liable as a partnership to third persons [Arts. 1768,
principal. 1772, Civil Code]
(c) The estate of a deceased person is a juridical entity
SECTION 4. Spouses as Parties.— Husband and wife that has a personality of its own [Nazareno v. C.A.,
shall sue or be sued jointly, except as provided by law. G.R. No. 138842 (2000), citing Limjoco v. Intestate
Estate of Fragrante, G.R. No. L-770 (1948)]
SECTION 5. Minor or Incompetent Persons.— A minor (d) A legitimate labor union may sue and sued in its
or a person alleged to be incompetent, may sue or be registered name [Art. 251(e), Labor Code]
sued, with the assistance of his father, mother, guardian, (e) The Roman Catholic Church may be a party; as to
or if he has none, a guardian ad litem. its properties, the Archbishop of diocese to which
they belong may be a party [Barlin v. Ramirez, G.R.
No. 2832 (1906); Versoza v. Fernandez, G.R. No.
32276 (1930)]
Only natural or juridical persons, or entities authorized by (f) A dissolved corporation may prosecute and defend
law may be parties in a civil action. The parties may either suits by or against it provided that the suits (i) occur
be a plaintiff or defendant. within three (3) years after its dissolution, and (ii) the
suits are in connection with the settlement and
Monte: According to Section 1 of Rule 3, only natural or closure of its affairs [Sec. 139, Revised Corporation
juridical persons, or entities authorized by law may be Code]
parties in a civil action. The parties may either be a plaintiff
or defendant. 4. [1 Riano 214, 2016 Bantam Ed.]
a. Two or more persons not organized as an entity with
Only natural persons like us human beings – either a juridical personality but enter into a transaction
citizen of the Philippines or a foreigner, or a juridical b. [Sec. 15, Rule 3]
person which refers to corporations such as private
corporations that are duly registered in the Securities Note: Also includes an unwilling co-plaintiff – any party
and Exchange Commission (SEC) or partnership who should be joined as plaintiff but whose consent
registered in the SEC. Juridical persons may also include cannot be obtained. He may be made a defendant
public corporations such as the State, the government, and the reason therefor shall be stated in the
complaint.

Gaviola Sevilla Torres

Source: (UP BOC 2020) complete determination or settlement of the claim
subject of the action
B. Parties in interest
Monte: A necessary party may not be included but
SECTION 2. Parties in Interest.— A real party in interest you will not have a complete determination or
is the party who stands to be benefited or injured by the settlement of the claim if you do not include her so
judgment in the suit, or the party entitled to the avails of you might as well include her if you want to have a
the suit. Unless otherwise authorized by law or these complete determination of the case.
Rules, every action must be prosecuted or defended in
the name of the real party in interest. 3) Representative Parties – those who prosecuted or
defended the case for and in behalf of the real party
Every action must be prosecuted or defended in the name in interest
of the real party in interest. A real party in interest is one
who stands to be benefited or injured by the judgment in Monte: A representative party for example is an
the suit, or the party entitled to the avails of the suit. agent or an attorney-in-fact, the real owner of the
property sought to be recovered is the real party in
Monte: In a civil action, generally, there are only two kinds interest, but since he is not around because he is
of parties – the party plaintiff and the party defendant. living abroad, he authorized his cousin to represent
him in the case to recover a parcel of land he owns.
The plaintiff refers to the party who files a claim and the So, he executed a special power of attorney (SPA)
term plaintiff extends to counter-claimants, cross- expressly authorizing his cousin to file the case in
claimants, or third party plaintiff. court. His cousin known as the attorney-in-fact is just
a representative party, he represents the real party in
Defendant on the other hand refers to the person who files interest who is the real owner and is an indispensable
an answer to the complaint. That defendant could also party in the case.
either be a defendant in a counterclaim, the cross-
defendant, or third, fourth-party defendant. 4) Pro forma Parties – those who are required to be
joined as co-parties in a suit as provided by law
The general rule is that a party to a civil action must be a (spouses and minors)
real party in interest. This is because the ROC provides
that every action must be prosecuted or defended in the Monte: The general rule is that the wife alone cannot
name of a real party in interest. file a case without joining the husband. There are
exceptions such as when the property sought to be
A real party in interest is one who stands to be benefited recovered is a paraphernal property or an exclusive
or injured by the judgment in the suit, or the party entitled property of the wife.
to the avails of the suit.
Suit for and against the minor must be brought not
For example, if you file a suit for partition of a property only against the minor but also against the parents
owned in common, like when brothers and sisters inherit who are considered as the guardian of the minor. The
a parcel of land from their deceased parents. You are one parents can sue for and in behalf of the minor.
of the co-owners. If you demand for partition, you have to
demand for partition from all your brothers and sisters. If Indispensable Parties Necessary Parties
they do not accede to that, then you will be forced to go Must be joined under any May be joined whenever
to court and demand for judicial partition. and all conditions possible

If file a case in court demanding for partition of a property Presence is mandatory, Presence is not
owned in common with your siblings, you have to include he must be joined mandatory because is
ALL your brothers and sisters because each one of them because the court cannot interest is separable from
is a real party in interest, they stand to be benefited or proceed without him that of the indispensable
injured by the judgment in the suit. party

Classification of Parties in Interest But ought to be parties if

complete relief is to be
1) Indispensable Parties – those without whom no final accorded as to those
determination can be had of an action already parties, or for a
complete determination or
2) Necessary Parties – those who are not settlement of the claim
indispensable but ought to be parties if complete relief subject of the action
is to be accorded as to those already parties, or for a

Gaviola Sevilla Torres

 No final determination can Final decree can be had in
be had of a case without a case even without a Monte: All of these conditions must be present before one
his presence necessary party can join together as party-plaintiffs or party-defendants. If
they join together as party-plaintiffs, their right to relief in
favor of them as plaintiff and against the defendants must
Joinder of Parties arise out of the same transaction or series of transactions
and there is a question of law or fact common to the
SECTION 7. Compulsory Joinder of Indispensable parties joined in the action.
Parties.— Parties in interest without whom no final
determination can be had of an action shall be joined Earlier, I gave you an example of victims of a vehicular
either as plaintiffs or defendants. accident where a bus owned by Ceres met an accident
due to the negligence of the driver. Several passengers
SECTION 8. Necessary Party.— A necessary party is were injured.
one who is not indispensable but who ought to be joined
as a party if complete relief is to be accorded as to those Can these passengers be joined in one case?
already parties, or for a complete determination or YES.
settlement of the claim subject of the action.
Why is it called a permissive joinder of parties?
SECTION 9. Non-joinder of Necessary Parties to be Because they cannot be compelled to join together. It is
Pleaded.— Whenever in any pleading in which a claim is up to them – they have the option to join together or not.
asserted a necessary party is not joined, the pleader shall
set forth his name, if known, and shall state why he is So these passengers can join together because their right
omitted. Should the court find the reason for the omission of relief against the bus company arises out of the same
unmeritorious, it may order the inclusion of the omitted transaction which is the contract of carriage. Each
necessary party if jurisdiction over his person may be passenger has a contract of carriage with the bus
obtained. company. That contract of carriage is about the bus
company transporting them safely to their place of
The failure to comply with the order for his inclusion, destination. So that if the Bus comes from Bogo and is
without justifiable cause, shall be deemed a waiver of the bound to Cebu City, the contract is to transport them
claim against such party. safely to the place of destination. If they do not safely
arrive at the place of destination because of the
The non-inclusion of a necessary party does not prevent negligence of the driver who is an employee of the bus
the court from proceeding in the action, and the judgment company, then they can sue the bus company for breach
rendered therein shall be without prejudice to the rights of of contract of carriage.
such necessary party.
In a breach of contract of carriage, the real party in interest
SECTION 10. Unwilling Co-plaintiff. — If the consent of is the bus company and not the driver. You can file a case
any party who should be joined as plaintiff can not be for reckless imprudence resulting to homicide or physical
obtained, he may be made a defendant and the reason injuries to the driver. But when it comes to contractual
therefor shall be stated in the complaint. relation, the contractual relation is with the busy company,
and hence the latter is the real party in interest.
SECTION 11. Misjoinder and Non-joinder of Parties.—
Neither misjoinder nor non-joinder of parties is ground for The right to relief against the bus company arises out of
dismissal of an action. Parties may be dropped or added the same transaction or series of transactions and the
by order of the court on motion of any party or on its own second important condition is that there is a common
initiative at any stage of the action and on such terms as question of law or fact common to the parties joined in the
are just. Any claim against a misjoined party may be action.
severed and proceeded with separately.
In this case, there is obviously a common question of fact.
A. Permissive Joinder of Parties It is a common incident. The driver was driving negligently
and resulted to the injury of the passenger. There is also
Two or more persons may join in one complaint as a common question of law. Since there is a common
plaintiffs or as defendants provided the following question of fact and law to the parties joined together –
conditions are present: then they can group together and file the case against the
(a) There is a right to relief in favor of or against the bus company. That is in the assumption that all of them
parties joined in respect to or arising out of the are residents of Cebu City because they have to file the
same transaction or series of transactions; case in Cebu City.
and
(b) There is a question of law or fact common to
the parties joined in the action

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If you file a case for breach of contract, that is a personal Yes. Because as a surety, X bound himself with A in
action. The venue is the place of the plaintiff or the place paying the obligation.
of the defendant at the option of the plaintiff.
If the surety will pay the creditor, what will happen?
If one of the parties is not from Cebu City but from Bohol, The surety will file a case to demand reimbursement from
he can file it there. So he will not join the others. He cannot A, the principal debtor. So wala pa gihapon nahuman ang
be compelled to join them because it is only a permissive kaso. IOW, there is still no complete determination
joinder of parties. because B did not include the principal debtor. So the
principal debtor A should have been included in order to
General Rule: The joinder of parties is permissive. have a complete determination of the claim.
Exception: It is compulsory when the one involved is an
indispensable party. (Crisologo vs JEWN Agro-Industrial What about if the obligation is a solidary obligation?
Corporation GR No 196894 2014) A and B bound themselves to pay an obligation. When
they failed to pay, the creditor filed a claim against A
B. Compulsory Joinder of Parties without including B. Can he do that?
Yes, because they are solidary debtors, he can demand
Indispensable Party – One without whom no final either payment from A or B. But if he wants a complete
determination can be had of an action determination of the case, it would be best to include B.

Necessary Party – One who is not indispensable but who If the obligation is joint, the creditor can only claim one
ought to be joined if complete relief is to be had or to have half from the debtors, he cannot claim the entire obligation
a complete determination of the claim from A. So, the creditor must file a suit against A and B in
order to have a complete relief or a complete
Monte: If a party is an indispensable party, he should be determination of his claim.
joined as a party to that case. Otherwise, if he will not be
included as a party to that case, the case will not prosper. Non-joinder of Necessary Party

For example, if you want to recover a property, you do not Monte: When there is a necessary party and the plaintiff
file against a person occupying only as a tenant. You did not include the necessary party in his complaint, he
should file the case against the person who claims to be should state the reason why he did not include the
the owner of the property and who is the one leasing it to necessary party, he must provide a justification.
the tenant. He is an indispensable party and a real party
in interest because he is the one who claims to be the real What is the effect if you do not include a necessary
owner. party?
If not impleaded, pleader must set forth his name and
An indispensable party is one who without whom no final state why he was omitted.
determination can be had of an action. In the example, if
you file the case against the tenant, the controversy will If the court finds the reason to be unmeritorious, it may
not be resolved because the tenant is only leasing from order the inclusion of the omitted party.
the real owner.
Failure to comply without justifiable cause shall be
A necessary party is one who is not indispensable but deemed a waiver of the claim against said person.
who ought to be joined in order to have a complete relief
or to have a complete determination of the case. The non-inclusion of a necessary party does not prevent
the court from proceeding in the action, and the judgment
For example, A borrowed money from B. X acted as a rendered therein shall be without prejudice to the rights of
guarantor of A. When A failed to pay B, B decided to file such necessary party (Section 9, Rule 3)
a case. B filed a case against A but he did not include B,
the guarantor. Monte: If you did not include a necessary party and the
court orders you to include the necessary party, then you
Is X an indispensable party or a necessary party? have to obey the order of the court.
X is only a necessary party. It is good to include X as
guarantor although it is not necessary but it is better in What will be the consequence if you fail to obey the
order to have a complete determination of his claim. order of the court?
Otherwise, if A, the principal debtor cannot pay, B will file Failure to comply without justifiable cause shall be
a separate case against the guarantor. considered a waiver of the claim against the person. You
cannot anymore recover from the purpose. Hence, you
Suppose, A borrowed from B and X acted as a surety. cannot ask for reimbursement from that person or ask for
When A failed to pay B, B filed a case against the surety contribution.
and did not include A. Can the case prosper?

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DGST Notes 2018-2019 rendered therein shall not prejudice the rights of such
• The joinder of indispensable parties is mandatory and necessary party [Sec. 9, par. 3, Rule 3]
the courts cannot proceed without their presence.
• If there is failure to implead an indispensable party, Remedy in case of non-joinder of necessary parties
any judgment would have no effectiveness. When a pleading asserting a claim omits to join a
• The absence of indispensable party renders all necessary party, the pleader must:
subsequent actions of the trial court null and void for 1. Set forth the name of the necessary party, if known,
want of authority to act, not only as to the absent and
parties but even as to those present. (Moldes vs 2. State the reason why he is omitted [Sec. 9, par. 1, Rule
Villanueva, GR No 161955 2012) 3]
• Generally, a joinder of parties is permissive. But the
joinder of parties becomes compulsory when the one Should the court find the reason for the nonjoinder of a
involved is an indispensable party. necessary party unmeritorious, it may order the inclusion
• If it appears to the court in the course of a proceeding of such necessary party, if jurisdiction over his person
that an in indispensable party has not been joined, it is may be obtained. Failure to comply with such order
the duty of the court to stop the trial and order the without justifiable cause shall be deemed a waiver of the
inclusion of such party. claim against such party [Sec. 9, pars. 1-2, Rule 3]
• An outright dismissal is not the immediate remedy for
non-joinder/misjoinder of parties. Instead, parties may Unwilling Co-Plaintiff
be dropped or added by the court on motion of any
party or on its own initiative at any stage in the action. If the consent of any party who should be joined as plaintiff
• There are two consequences of a finding on appeal cannot be obtained, he may be made a defendant and the
that the indisipensable parties have not been joined: reason therefor shall be stated in the complaint (Section
1. All subsequent actions of the lower courts are null 10)
and void for lack of jurisdiction
2. The case should be remanded to the trial court for the Monte: One good example is a partition of a common
inclusion of indispensable parties. property owned by the brothers and sisters. You
• A party is misjoined when he is made a party to the demanded for partition and some of your siblings are
action although he should not be impleaded. If there is amenable to the partition while some are not amenable.
any claim against a party misjoined, the same may be Those who are not amenable to the partition should be
severed and proceeded with separately. made as defendants.
UP BOC 2020 Another example, there is a property owned by your
Effect of non-joinder of indispensable parties deceased parents. That property is now claimed by
The absence of an indispensable party renders all another person. Your brothers and sisters decided to file
subsequent actions of the trial court null and void for a case against that person who is now occupying the
want of authority to act, not only as to the absent parties property of your parents. All of you should be included as
but even as to those present. [Moldes v. Villanueva, G.R. plaintiffs of the case because if one is not included, that
No. 161955 (2012)] could be a ground for dismissal because of the non-
inclusion of an indispensable party. Your brothers and
Failure to implead an indispensable party is not a ground sisters are indispensable parties.
for dismissal of an action, as the remedy in such a case
is to implead the party claimed to be indispensable, What if one of your brother or sister is not willing to
considering that the parties may be added by order of the cooperate?
court, on motion of the party or on its own initiative at any You shall put that brother or sister as one of the
stage of the action. [Galido v. Magrare, G.R. No. 206584 defendants together with the usurper of the property of
(2016)] your parents.

Effect of misjoinder or non-joinder of parties; when Misjoinder and Non-joinder of Parties

ordered by the court
It is when the order of the court to implead an Neither misjoinder nor non-joinder of parties is not a
indispensable party goes unheeded that the case may ground for dismissal of an action.
be dismissed. The court has authority to dismiss a
complaint due to the fault of the plaintiff when he does not Monte: Just like a misjoinder of cause of action, neither
comply with any order of the court [Plasabas v. CA, G.R. misjoinder or non-joinder of parties is not a ground for
No. 166519 (2009)] dismissal.

Effect of non-joinder of necessary parties

Non-joinder of a necessary party does not prevent the
court from proceeding in the action. The judgment

Gaviola Sevilla Torres

 Class Suit Conditions for a Valid Class Suit

SECTION 12. Class Suit.— When the subject matter of (a) The subject matter of the controversy is one of
the controversy is one of common or general interest to common or general interest to many persons
many persons so numerous that it is impracticable to join (Sulo ng Bayan vs Araneta Inc., 72 SCRA 34;
all as parties, a number of them which the court finds to Bulig-Bulig Kita Kamag-Anak Asso. et al vs
be sufficiently numerous and representative as to fully Sulpicio Lines)
protect the interests of all concerned may sue or defend (b) The parties are so numerous that it is
for the benefit of all. Any party in interest shall have the impracticable to bring them all before the court
right to intervene to protect his individual interest. (Taxpayers Suit)
(c) A number of them which the court finds to be
When the subject matter of the controversy is one of sufficiently numerous may sue or defend for the
common or general interest to many persons so benefit of all (Oposa vs Factoran, 224 SCRA 12)
numerous that it is impracticable to join all as parties,
a number of them which the court finds to be sufficiently SULO NG BAYAN VS ARANETA INC., 72 SCRA 34
numerous and representative as to fully protect the This is a case where the land of the Aranetas where
interest of all concerned may sue or defend for the benefit occupied by many squatters. Araneta decided to eject all
of all. Any party in interest shall have the right to intervene of them and sent them an eviction letter. These squatters
to protect his individual interest. (Section 12) grouped together and formed an organization which they
called Sulo ng Bayan. Their officers where the ones who
Requisites: filed a case against the Aranetas for injunction to prevent
a. Subject matter of the controversy is one of common or Araneta from ejecting them. They filed a case as a class
general interest to many persons; suit.
b. The persons are so numerous that it is impracticable
to join them all as parties; The SC said that there case should be dismissed because
c. The court finds a number of them sufficiently it is not a class suit. Each of the squatter who occupied
numerous and representative of the class as to fully the land of the Aranetas has its own interest, separate and
protect the interests of all concerned; and distinct from the other squatters.
d. The representative sues or defends for the benefit of
all. [Sec. 12, Rule 3] BULIG-BULIG KITA KAMAG-ANAK ASSO. ET AL VS
SULPICIO LINES
Monte: A class suit happens when there are several This was a case of a vessel belonging to Sulpicio Lines
party-plaintiffs, there are so many of them that it becomes which sunk on Christmas day on its way to Manila from
impracticable to join as parties. So a number of them Tacloban when it collided with a tanker which contains
which the court finds to be sufficiently numerous can file fuel. When the collision occurred and the ship exploded,
a class suit. the sea was also on fire. It was said to be the worst marital
accident where thousands of passengers died.
For example, you have an organization of rice farmers in
the Philippines. Supposed congress enacted a law that is The relatives of the deceased passengers decided to form
detrimental to all rice farmers. The farmers wanted to an association known as Bulig-Bulig Kita Kamag-Anak
question the constitutionality of the law. You will not and filed a class suit. The SC said that it is not a class suit
expect that all the rice farmers will be party-plaintiffs. They because the interest of one passenger is not the same
may have a national organization consisting of officers. with the family of the other deceased passengers. But this
These officers will be enough to bring an action in court could be a joinder of causes of action and joinder of party-
questioning the constitutionality of the law. plaintiff, but not as a class suit.

The subject matter of the controversy or general interest OPOSA VS FACTORAN, 224 SCRA 12
is common to many persons but since there are so many This case talked about the intergenerational
of them, so numerous that it is impracticable to join all as responsibility. This was invented by Atty. Oposa (a
parties, a number of them which the court finds to be Cebuano lawyer and a very good friend of Dean
sufficiently numerous and representative as to fully Monteclar). When Oposa filed a case against Factoran
protect the interest of all concerned may sue or defend for who was the DENR Secretary at that time, the DENR has
the benefit of all. been granting concessions or permits to loggers to reap
the natural resources.
Note: The most important element is that the
controversy or general interest is common to many The plaintiffs of these case where the children of Atty.
persons so numerous that it is impracticable to join Oposa and some of his friends and the reason is they are
all as parties. the real party in interest because if they will not stop this
mining and logging that reap our natural resources, it is

Gaviola Sevilla Torres

these small children that will be affected. It is about their
future and so, they have the right to file the case. So this You entered into a contract with XYZ Trading and they
is an example of a class suit. violated the contract. You decided to file a case but did
not know the name of the owners of the business. You
The SC sustained the argument of Oposa that it is a case can file a case with XYZ Trading as defendant. Later on,
that can be brought by children against the government if you know already the names of the defendants, you can
through that intergenerational responsibility of amend your complaint with the names of the defendants.
maintaining our natural resources.
The same is true with entities without juridical personality.
Alternative Defendants; Unknown Identity or Name;
Entity without Juridical Personality Effect of Death of a Party

SECTION 13. Alternative Defendants.— Where the (a) Action that survives
plaintiff is uncertain against who of several persons he is (b) Action that does not survive
entitled to relief, he may join any or all of them as
defendants in the alternative, although a right to relief Section16. Death of party; Duty of Counsel –
against one may be inconsistent with a right of relief Whenever a party to a pending action dies, and the claim
against the other. is not extinguished, it shall be the duty of his counsel to
inform the court within 30 days after such death of the
SECTION 14. Unknown Identity or Name of Defendant.— fact thereof, and to give the name and address of his
Whenever the identity or name of a defendant is legal representative(s). Failure of counsel to comply with
unknown, he may be sued as the unknown owner, heir, this duty shall be a ground for disciplinary action.
devisee, or by such other designation as the case may
require; when his identity or true name is discovered, the The heirs of the deceased may be allowed to be
pleading must be amended accordingly. (14) substituted for the deceased, without requiring the
appointment of an executor or administrator and the
SECTION 15. Entity Without Juridical Personality as court may appoint a guardian ad litem for the minor heirs.
Defendant.— When two or more persons not organized
as an entity with juridical personality enter into a The court shall forthwith order said legal
transaction, they may be sued under the name by which representative(s) to appear and be substituted within a
they are generally or commonly known. period of 30 days from notice.

In the answer of such defendant, the names and If no legal representative is named by the counsel for the
addresses of the persons composing said entity must all deceased party, or if the one so named shall fail to
be revealed. appear within the specified period, the court may order
the opposing party, within a specified time, to procure the
What is an alternative defendant? appointment of an executor or administrator for the
• Unknown identity or name of the defendant estate of the deceased and the latter shall immediately
• Entity without juridical personality appear for and on behalf of the deceased. The court
charges in procuring such appointment, if defrayed by
Monte: You are not sure who is answerable to your claim. the opposing party, may be recovered as costs.

For example, you shipped some goods to Cebu. When it Substitution

arrived, it was already damaged. You do not know who is
responsible – is it the shipping company or the arrastre Monte: While the case is pending in court, the defendant
company? Both of the shipping company and the arrastre dies. What should the lawyer of the defendant do?
company are blaming each other. If you decide to file a Section 16 of Rule 3 provides that whenever a party to a
case, you sue both of them as alternative defendants. pending action dies, and the claim is not extinguished –
meaning it survives, it shall be the duty of his counsel to
You also have what we call as alternative causes of inform the court within 30 days after such death of the
action where if one cannot be held liable, the other should fact thereof, and to give the name and address of his
be liable. legal representative(s). Meaning, it is the duty of the
lawyer of the deceased defendant or plaintiff to inform the
Example of an unknown identity or name of the court of the death of his client.
defendant
In case of A, B, C, D and E formed a partnership to Why?
engage in business and called it XYZ Trading, it is not a Because once his client dies, his authority to represent
corporation because they did not incorporate it as a the client ceases to exist – he is no longer the lawyer. He
corporation and their partnership is also not registered must inform the court of the death of his client and he
under the SEC. must also inform the court who will represent the client in

Gaviola Sevilla Torres

the case – if it is the family of the deceased, relatives, or action was pending at the time of such death, it shall not
the deceased’s administrator or executor. If he left a will be dismissed but shall instead be allowed to continue until
and testament, the executor will be made to substitute the entry of final judgment. A favorable judgment obtained
him and not his family. In fact, between the family and the by the plaintiff therein shall be enforced in the manner
administrator or executor, it is the latter who is preferred especially provided in these Rules for prosecuting claims
to represent the deceased in the case. In the absence against the estate of a deceased person.
thereof, it is the wife or the children of the deceased that
will substitute him. What is the effect of death of defendant on money
claims?
The lawyer must inform the court immediately so that Monte: Under the old rules, the case will be dismissed
proper substitution can be made. The lawyer will tell the right away and the plaintiff is required to file a case
court: “Since my client already died, I am no longer the against the estate of the defendant – which is circuitous.
lawyer. But if the family of my client would want me to
continue then I will continue.” IOW, the lawyer needs an The New Rules changed this. When a defendant dies
additional authority from the heirs of the deceased pending a case for claim of sum of money, the case will
person. be allowed to continue until it is decided by the court and
until the decision of the court becomes final and
In fact, there is a disciplinary sanction for this if the lawyer executory.
fails to inform the court of the death of his client. If the
court continues with the case without knowing that a In the meantime, while the case is pending in court,
party is already dead, that proceeding will be null and proper substitution will be made, either the administrator
void. No case may continue without proper or executor or the heirs of the deceased-defendant will
substitution of a party. substitute in the case.

Note: When talking about the death of a party, you must Once there is already a final decision, the plaintiff will
distinguish first if it is an action that survives or an action present the decision to the executor or administrator
that does not survive. of the defendant as a claim against the estate.

If it is an action that does not survive – meaning, it is In the past, the case will be dismissed and the plaintiff
a case that cannot continue. Once the party dies, it must must file a claim against the estate which I said is
be dismissed. circuitous because suppose that the defendant died
while the case is pending, in fact the hearing is already
If it is an action that continues even if the defendant done and the defendant and plaintiff already testified. Do
is already dead – it can still continue because he can be you still file it as a money claim against the estate?
substituted by his executor, administrator, or his heirs. Not anymore! The case will continue and once there is
already a decision, present it to the executor. You will not
What actions cannot survive? ask the court to issue a writ of execution. You just present
An example is a personal action. In an action for the judgment as a claim against the estate.
annulment of marriage, while the case is pending, the wife
died. You have to inform the court of the death of the wife Effect
but cannot ask the court for substitution of parties. It is an If the plaintiff obtains a favorable judgment, said
action that does not survive and so should be dismissed. judgment shall be enforced following the procedure
provided for in the ROC for prosecuting claims against
Effect of failure to order Substitution the estate of a deceased person [Sec. 20, Rule 3]
Results in failure to acquire jurisdiction over the He/She is not supposed to file a motion for the issuance
representative or heirs of the deceased party. of an order and writ of execution of the judgment [1 Riano
Consequently, any judgment rendered against such 201, 2014 Bantam Ed.]
deceased party shall be null and void for lack of
jurisdiction over the persons of the legal representative Effect of Death of Party who is a Public Officer
or of the heirs upon whom the trial and the judgment
would be binding [The Heirs of Vda. De Haberer v. Court SECTION 17. Death or Separation of A Party Who is
of Appeals, et al., G.R. Nos. L-42699 to L-2709 a Public Officer.— When a public officer is a party in an
(1981)] action in his official capacity and during its pendency
dies, resigns, or otherwise ceases to hold office, the
Effect of Death of Defendant on Money Claims action may be continued and maintained by or against
his successor if, within thirty (30) days after the
SECTION 20. Action on Contractual Money Claims.— successor takes office or such time as may be granted
When the action is for recovery of money arising from by the court, it is satisfactorily shown to the court by any
contract, express or implied, and the defendant dies party that there is a substantial need for continuing or
before the entry of final judgment in the court in which the maintaining it and that the successor adopts or continues

Gaviola Sevilla Torres

or threatens to adopt or continue the action of his hearing, is satisfied that the party is one who has no
predecessor. Before a substitution is made, the party or money or property sufficient and available for food,
officer to be affected, unless expressly assenting thereto, shelter and basic necessities for himself and his family.
shall be given reasonable notice of the application
therefor and accorded an opportunity to be heard Such authority shall include an exemption from payment
of docket and other lawful fees, and of transcripts of
What is the effect? stenographic notes which the court may order to be
Monte: The case will continue depending on what his furnished him. The amount of the docket and other lawful
successor will do. If the successor will continue the case, fees which the indigent was exempted from paying shall
it will go on. Otherwise, it will be dismissed. be a lien on any judgment rendered in the case favorable
to the indigent, unless the court otherwise provides.
Rule in case of death or separation of party who is a
public officer Any adverse party may contest the grant of such
The action may be continued or maintained by or against authority at any time before judgment is rendered by the
his successor [Sec. 17, Rule 3] trial court. If the court should determine after hearing that
the party declared as an indigent is in fact a person with
Requisites: sufficient income or property, the proper docket and other
a. A public officer is a party to an action in his official lawful fees shall be assessed and collected by the clerk
capacity; of court. If payment is not made within the time fixed by
b. During the pendency of the action, he dies, resigns, or the court, execution shall issue or the payment thereof,
otherwise ceases to hold office; without prejudice to such other sanctions as the court
c. Within 30 days after the successor takes office or such may impose.
time as may be granted by the court, any party shows to
the satisfaction of the court, that Monte: The amount of the docket and other lawful fees
- there is a substantial need for continuing or maintaining which the indigent was exempted from paying shall be a
such action; and lien on any judgment rendered in the case favorable
- the successor adopts or continues his predecessor’s to the indigent, unless the court otherwise provides.
action, or threatens to do so
d. Before a substitution is made, the party or officer to be UP BOC 2020
affected shall be given reasonable notice of the Summary of rules for indigent litigants
application therefor and accorded an opportunity to be If the applicant for exemption meets the salary and
heard UNLESS he expressly assents thereto (Sec 17, property requirements under Sec. 19 of Rule 141, then
Rule 3) the grant of the application is mandatory.

Effect of Incompetency or Incapacity of a Party On the other hand, when the application does not satisfy
one or both requirements, then the application should not
SECTION 18. Incompetency or Incapacity.— If a party be denied outright; instead, the court should apply the
becomes incompetent or incapacitated, the court, upon "indigency test" under Sec. 21, Rule 3 and use its sound
motion with notice, may allow the action to be continued discretion in determining the merits of the prayer for
by or against the incompetent or incapacitated person exemption. [Sps. Algura v. City of Naga, G.R. No.
assisted by his legal guardian or guardian ad litem. 150135 (2006)]

Monte: If a party becomes incompetent or incapacitated, Notice to the Solicitor General

she will be substituted by her guardian.
SECTION 22. Notice to the Solicitor General.— In any
Transfer of Interest action involving the validity of any treaty, law, ordinance,
executive order, presidential decree, rules or regulations,
SECTION 19. Transfer of Interest.— In case of any the court, in its discretion, may require the appearance of
transfer of interest, the action may be continued by or the Solicitor General who may be heard in person or
against the original party, unless the court upon motion through a representative duly designated by him.
directs the person to whom the interest is transferred to
be substituted in the action or joined with the original Monte: If the case is filed against the government, you
party. have to inform the Solicitor General because the SolGen
is the lawyer of the government. She is the
Indigent Party representative of the government.

SECTION 21. 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

Gaviola Sevilla Torres

 RULE 4 Sec. 2. Venue of Personal Action
VENUE
SECTION 2. Venue of Personal Actions. — All other
Definition of Venue actions may be commenced and tried where the plaintiff
or any of the principal plaintiffs resides, or where the
Venue refers to the place of trial. It is defined as the place defendant or any of the principal defendants resides, or in
where the action is commenced and tried. the case of a non-resident defendant where he may be
found, at the election of the plaintiff. (2[b]a)
The venue of the action depends on the nature of the
action, whether it is a real action or a personal action. Monte: In a personal action, the choice of venue is given
to the plaintiff. He can file it in his place, or he can file it in
Sec. 1. Venue in Real Actions the place of the defendant.

SECTION 1. Venue of Real Actions. — Actions affecting Meaning of Residence

title to or possession of real property, or interest therein,
shall be commenced and tried in the proper court which Monte: Now, what is the meaning of “residence” here?
has jurisdiction over the area wherein the real property We all know that there are two concepts of residence. We
involved, or a portion thereof, is situated. have:
1) Actual residence; and
Forcible entry and detainer actions shall be commenced 2) Constructive residence or domicile
and tried in the Municipal Trial Court of the municipality or
city wherein the real property involved, or a portion Domicile
thereof, is situated. (1[a], 2[a]a) The place where you always have the intention to return
to. Even if you are away, you always consider it as your
A real action, as defined by BP 129, refers to any action home place.
affecting title to or possession of real property, or any
interest therein. It shall be tried in the proper court which Actual Residence
has jurisdiction over the area wherein the real property Refers to the place where you actually reside.
involved, or a portion thereof, is situated.
Monte: Now, according to the SC in many cases, the term
Forcible entry and detainer actions shall be commenced “residence” here refers to actual residence, and not
and tried in the municipal trial court of the municipality constructive residence.
or city wherein the real property involved, or a portion
thereof, is situated. (Sec. 1) Residence of a Corporation or Juridical Entity

Monte: So, if the property is located partly in Mandaue Now, if the plaintiff or the party of the case is a
City, and the other part is located in Cebu City, and you corporation, what is the residence of a corporation?
file an ejectment case, you file it either in Mandaue City A: The residence of the corporation is the place where it
or in Cebu City. holds its main office.

So, the thing to remember is that if it is a real action, you Monte: Now, most big corporations have their main office
file it in the place where the real property is located. And in Makati. So, Makati is their residence. Okay? So, where
please, remember that the jurisdiction over these cases the main office is located.
depends on the amount of the real property sought to be
recovered. If the corporation has several branches, it does not mean
that in the places where it has branches, it can claim to be
And what is the jurisdictional amount? a resident of the place. No. There is only one residence
A: P20,000, not P300,000. for a corporation, and that is the main office.

Value of the Property Proper Court Venue if Both Real and Personal Action
P20,000 or less MTC
Over P20,000 RTC What if the action is both real and personal? How do
you determine the venue? There are some actions that
Except: If it is an are both real and personal. Like an action to recover real
ejectment case, because property with a prayer for damages. An action to recover
then you’ll have to file it in real property is a real action, but the prayer for damages,
the MTC. attorney’s fees, etc. is a personal action. So where will
you file the case?

Gaviola Sevilla Torres

A: According to the SC, it depends on what is the (2) Action Affects the Property or A Portion of the
principal action. Defendant’s Property Located Here in the
Philippines
Monte: Now in the case I gave you, which is an action to
recover property with damages, the principal action Monte: The second instance is when the non-resident
actually is the recovery of real property. So, it is a real defendant has property in the Philippines, which the
action and so the venue of the action must be the place plaintiff claims an interest.
where the real property is located. The recovery of
damages and attorney’s fees is only incidental. That is not So, the plaintiff filed a case to recover ownership of a
the primary action. parcel of land located in Cebu, for example. But the
registered owner of the land is no longer residing in the
Sec. 3. Venue of Action Against Non-Residents Philippines. He is already residing abroad.

SECTION 3. Venue of Actions Against Nonresidents. Will that case prosper?

— If any of the defendants does not reside and is not A: The answer is yes. Because, although the court may
found in the Philippines, and the action affects the not be able to acquire jurisdiction over the person of the
personal status of the plaintiff, or any property of said defendant by service of summons, but the court can
defendant located in the Philippines, the action may be acquire jurisdiction over the res, which the property
commenced and tried in the court of the place where the subject to the case. And the case can prosper.
plaintiff resides, or where the property or any portion
thereof is situated or found. (2[c]a) And what will be the venue?
A: The venue will be the place where the real property is
When an Action Can Be Filed vs. Non-Resident located.
Defendant
Now, in the event that a non-resident defendant is
Now, take note. When can you file an action against a temporarily in the Philippines. He came to the
non-resident defendant? Philippines as a tourist. He incurs obligation. Plaintiff
A: The Rules are very clear that you can file an action decides to file a case against that non-resident
against a non-resident defendant in only two instances: defendant. Where will the plaintiff file the case?
1) If the action affects the personal status of the A: He can file the case at the present or actual residence
plaintiff, and of the defendant, or at his own residence at his option.
2) If the action affects the property or any portion
thereof of the said defendant located here in the Now, where the plaintiff is a foreign corporation, and
Philippines. not a resident of the Philippines, can you file a case
against it?
(1) Actions Affecting the Personal Status of the A: Yes. There are instances where a non-resident foreign
Plaintiff corporation is allowed to sue or be sued here. When it
engages in a business here, it can be sued. The venue
Like what action? will be the place where the defendant resides, or in a real
A: An action filed by the wife against the husband for the action, the place where the property is located.
annulment of their marriage. It affects the personal status
of the wife, who is the plaintiff. Nota Bene: Where the plaintiff is a foreign corporation
(non-resident) but allowed to sue here, then the venue is
Monte: So, even if the husband is no longer residing in where the defendant resides, or, in real actions, where the
the Philippines, he is already living in another country, real property or a portion thereof is situated. (Time, Inc.
let’s say the United States, the wife can still file a case vs. Reyes, G.R. No. L-28882, May 31, 1972)
here in the Philippines because it affects her personal
status. TIME, INC. VS. REYES 1
G.R. No. L-28882, May 31, 1972
Another example is an action filed by an illegitimate child
for the compulsory recognition by his putative father, and In Time’s Asian Edition Magazine, Manila Mayor Antonio
his father is already residing abroad. That action will also Villegas was accused of having coffers containing “far
prosper even if the defendant father is no longer residing more pesos than seemed reasonable in the light of his
in the Philippines because it affects the personal status of income.” Juan Ponce Enrile was dragged onto the article
the plaintiff. That’s the first instance where you can sue a because he allegedly lent Villegas 30,000 pesos as he
non-resident defendant. was his compadre and at that time, Enrile was the
Secretary of Finance.

Gaviola Sevilla Torres

Villegas and Enrile sought to recover damages from Time Actions that may be filed against a non-resident
Magazine, an American Corporation, so they filed a defendant who does not reside and is not found in the
complaint in the CFI of Rizal. Philippines:

Petitioner received the summons and a copy of the 1) Actions that affect the personal status of the plaintiff;
complaint at its offices in New York on 13 December 1967 or
and, on 27 December 1967, it filed a motion to dismiss the 2) Actions that affect the property, or any portion thereof,
complaint for lack of jurisdiction and improper venue, of said defendant which are located here in the
relying upon the provisions of Republic Act 43632. Philippines.

The judge deferred the proceedings for the reason that Venue: Place of the plaintiff or the place where the
"the rule laid down under Republic Act. No. 4363, property or a portion thereof is found.
amending Article 360 of the Revised Penal Code, is not
applicable to actions against non-resident defendants, Sec. 4. Where Rules on Venue are Not Applicable
and because questions involving harassment and
inconvenience, as well as disruption of public service do
not appear indubitable.

Did the court acquire jurisdiction over Time Magazine?

No. It is a fundamental rule of international jurisdiction that

no state can by its laws, and no court which is only a
creature of the state, can by its judgments or decrees,
directly bind or affect property or persons beyond the
limits of the state. Not only this, but if the accused is a a) In those cases where a specific rule or law
corporation, no criminal action can lie against it, whether provides otherwise
such corporation or resident or non-resident. At any rate,
the case filed by respondents-plaintiffs is case for Examples:
damages. 1) Libel cases – which could be brought in the place
where the libelous statement was made, or the place
The court in this case is confronted by a specific venue of the offended party;
statute, conferring jurisdiction in cases of libel against
Public officials to specified courts, and no other. The rule Monte: Now, libel is a criminal case. But it may give
is that where a statute creates a right and provides a rise to a civil action. In fact, if you recall, under Art. 33
remedy for its enforcement, the remedy is exclusive; and of the Civil Code, it is one of the independent civil
where it confers jurisdiction upon a particular court, that actions. You can file a civil action for damages arising
jurisdiction is likewise exclusive, unless otherwise from libel independently from the criminal case.
provided. Hence, the venue provisions of Republic Act
No. 4363 should be deemed mandatory for the party Art. 33, CC. In cases of defamation, fraud, and
bringing the action, unless the question of venue should physical injuries a civil action for damages, entirely
be waived by the defendant, which was not the case here. separate and distinct from the criminal action, may be
Only thus can the policy of the Act be upheld and brought by the injured party. Such civil action shall
maintained. Nor is there any reason why the proceed independently of the criminal prosecution,
inapplicability of one alternative venue should result in and shall require only a preponderance of evidence.
rendering the other alternative, also inapplicable.
Now defamation, that covers libel. So, when you
Petitioner's failure to aver its legal capacity to institute the file a civil action for damages against the
present petition is not fatal, for A foreign corporation may, defendant who made a libelous statement against
by writ of prohibition, seek relief against the wrongful you, what is the venue of the action?
assumption of jurisdiction. And a foreign corporation A: The venue of the action is the place where the
seeking a writ of prohibition against further maintenance libelous statement was made, in the place where it
of a suit, on the ground of want of jurisdiction in which was published OR in your own place, the place of the
jurisdiction is not bound by the ruling of the court in which offended party, at the option of the offended party.
the suit was brought, on a motion to quash service of
summons, that it has jurisdiction.

Gaviola Sevilla Torres

2) Article VIII, Sec. 5 (4), 1987 Constitution – The SC A: According to the SC, in case of Polytrade vs. Blanco,
may order a change of venue or place of trial to avoid then that agreement may be disregarded by the parties,
a miscarriage of justice. and the agreed-upon venue shall be considered only as
an additional venue.
Monte: So, the SC can order, not only in criminal
cases, but also in civil cases, it can order a change of So, in the Polytrade case, the SC said:
venue in order to avoid a miscarriage of justice.
“When the parties stipulated on the venue of the action
One example is the Ampatuan Massacre case. It was other than those found in the Rules of Court 3, the
transferred from Maguindanao to Manila. That was a stipulated venue is considered only as an ADDITIONAL
criminal case. But the civil aspect of the case can also venue in addition to where the parties reside. Unless the
be filed in Manila. Okay? Because the SC has already stipulation contains RESTRICTIVE words which show the
ordered the transfer of the entire case, both criminal intention of the parties to limit the place stipulated as the
and civil, to Metro Manela in order to avoid exclusive venue.”
miscarriage of justice.
So, in the example I gave you a while ago, in the contract
b) Where the parties have validly agreed in writing of loan between A and B. They stipulated that any
before the filing of the action on the exclusive violation shall be filed in the proper court of Bohol. Bohol,
venue then, is only considered an additional venue (there being
no restrictive words). The parties are then not precluded
Monte: This one means that when both parties have from filing the case in Cebu City. The plaintiff may the
entered into a contract, and they have already stipulated case at his place or at the place of the defendant. That is
that any action arising out of the contract shall be filed the venue of a personal action.
only in a particular place, then that agreement is binding.
And this was clarified by the Supreme Court in the leading POLYTRADE VS. BLANCO DIGEST
case of Polytrade vs. Blanco. G.R. No. L-27033, October 31, 1969

POLYTRADE VS. BLANCO Plaintiff Polytrade Co. filed a case to recover the purchase
30 SCRA 187 price of rawhide against Defendant Blanco in the Court of
First Instance of Bulacan. Plaintiff has its principal office
Monte: Here, the SC said that an agreement of the located in Makati, JP Rizal while defendant Victoriano
parties as to the venue will only bind the parties if that Blanco resides in Maycauayan, Bulacan. Prior to the case
agreement contains a qualified or restricted word which filed by the plaintiff, both parties made a written stipulation
shows the intention of the parties to limit the place in their contract that ***that the parties agree to sue and
stipulated as the exclusive venue. be sued in the Courts of Manila*** Blanco moved to
dismiss the case on the ground of improper venue
And how would you know whether that agreement because as per in the contract suit the parties agreed in
contains qualified or restrict[ive] words? What are the writing that the stipulation abovementioned must be
qualified or restricted (restrictive) words? followed. Hence, because of such covenant he can only
A: Words such as “exclusive” or “only.” be sued in the courts of Manila.

Example: Parties A and B, who are both residents of Was venue properly laid?
Cebu City entered into a loan agreement that in the event
of a violation of any of the terms and conditions of their Yes. The stipulation where the parties agree to sue or be
contract, the case shall be filed in “only in the proper court sued in the Courts of Manila, was held not to preclude the
of Tagbilaran, Bohol.” Only and only there, and not in any filing of the suit in the residence of the plaintiff or of the
other place. defendant. The Court held that the plain meaning of the
stipulation is that the parties merely consented to be sued
Now that is very clear that the intention of the parties there in Manila. The qualifying words that “Manila” and “Manila
is to limit the venue only in Bohol. And therefore, you have alone is the venue” are totally absent. The stipulation is
to file the case in Bohol. merely permissive.

What happens if there is an agreement as to the But there is another exception according to the Supreme
venue, but the venue did not contain a qualified or Court, and that is the case of Sweet Lines vs. Teves.
restricted word that it will be filed only in that place?

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SWEET LINES VS. TEVES Now, the shipping company filed a motion to dismiss,
G.R. No. L-37750, May 19, 1978 | 83 SCRA 361 claiming that, “There is a contract between us. And that
contract is found at the back of your ticket.” You know,
Monte: If you recall in your Oblicon class, I’m sure this when you buy a boat ticket, even an airline ticket, you will
was already discussed with you, the principle of see at the back portion of the back ticket, there are terms
“contract of adhesion.” and conditions of the contract of carriage there, printed in
very, very, very fine letters. You can hardly read it without
What is a contract of adhesion? using a magnifying glass.
A: It is a contract prepared by only one party, and the
other party was made to adhere to it because he has no And the shipping company said, “You read the back of
choice. your ticket. It says there that any action arising out of this
contract of carriage shall be filed only in the proper court
Monte: So that kind of contract is not totally bidning on of Cebu City. It contains an exclusive term, “only”, so you
the parties, especially as to the agreement on the venue. have to file it in Cebu City.”
That case of Sweet Lines vs. Teves was this:
But the judge in CDO City refused to dismiss the case. He
A lawyer from Cagayan de Oro, together with his client, said, “That’s very unfair to the poor riding public. They
had a hearing in Tagbilaran, Bohol. Since there was no have to come to Cebu City to file a case. They cannot
vessel, airplane or ship at that time, since this happened afford to come to Cebu City every now and then to attend
in the 1960s, there was no direct flight or boat trip from the hearing. While the shipping company is rich. It has a
CDO to Bohol, they had to pass through Cebu. So they branch office in CDO. They have lawyers in Cebu, and
had to take a boat from CDO to Cebu, and another boat they have also retained lawyers in CDO. Why don’t we
from Cebu to Bohol. So that’s what they did. litigate here in Cagayan?” And so, the judge did not
dismiss the case.
Now before, there was a famous shipping company,
Sweet Lines, Inc. They have vessels plying the route And so, the shipping company filed a certiorari case
Cebu to Tagbilaran, and the route of Cebu to CDO. They against the judge in CDO, and they raised it to the SC, the
have several vessels. So, the lawyer and his client bought issue on venue. The shipping company argued that it was
a ticket in CDO for Cebu with a connecting trip from Cebu very clear that in the contract of carriage, there were
to Bohol. So, they bought already the tickets so they can qualified or restricted words that allowed the case to be
attend the hearing. filed only in Cebu City.

So, when they arrived in Cebu, they stayed for a few hours The Supreme Court said, “We will disregard the
to wait for the evening because the boat at that time, the stipulation as to the venue. Although it contains a qualified
boat would only leave in the evening. So, when they were or restricted word, that can be disregarded by the court
about to board the boat from Cebu to Tagbilaran, they because that contract is a contract of adhesion. It was
were told that it was already fully booked. prepared by only one party, which was the shipping
company, and they were the ones who dictated all the
And they said, “But have a ticket, we bought this ticket in terms and conditions of the contract, and the riding public
Cagayan de Oro.” Maybe the shipping company, which is has no choice. You have to accept it. Otherwise, you
based here in Cebu City, at the time there was yet no cannot go to your place of destination.”
computer, so they relied on telegrams and long-distance
calls. So, the system was not yet very efficient. So, they That is why, the SC considered it a contract of adhesion.
were told, “Sir, the boat is already fully booked, you And a contract of adhesion will not bind the parties.
cannot be accommodated.” And they said, “But we have Because normally, a contract is a product of the mutual
a hearing tomorrow.” So, the shipping company, through agreement of the parties. Dili kay dictated ra by one party.
their representative, made an arrangement with the So, that’s one exception that was made by the SC in the
lawyer and his client, “Okay, we can let you get in. But case of Sweet Lines vs. Teves.
since there are no more cots or beds for you, you stay in
the bodega. Adto mo didto matug, sa mga kinamada na But, in another case, the case of Aquero vs. Flojo, the
sinakong bugas.” They had no choice but to take it Supreme Court did not anymore accept the contract of
otherwise they would miss their hearing. adhesion as an argument or defense.

So, they slept in the bodega of the vessel. And when they ARQUERO VS. FLOJO
arrived in Tagbilaran, they attended the hearing, and they 168 SCRA 540 | G.R. No. L-68111,December 20, 1988
went back to Cagayan. When they returned to Cagayan,
they filed a case for breach of contract with damages Monte: This one involves a telegram company. Where a
against the shipping company. mayor in one town in northern Philippines sent a telegram
to his Congressman in the Philippine Congress in Manila.

Gaviola Sevilla Torres

He sent a telegram, “Mr. Congressman, I’m going to KTG: It is not the size of the paper containing the
Manila. I have something to discuss with you.” So maybe, contract, but rather the circumstances the case and the
he wants to ask some favor from the Congressman. parties which prompted the SC not to admit the
defense of there being a contract of adhesion in the
Now, he paid the fee for the telegram when he sent it to Arquero case.
the Congressman. But when it arrived in Manila, and it
was delivered to the office of the Congressman, the In the case of Sweet Lines vs. Teves, the SC cited the
Congressman was made to pay because according to the following circumstances to hold that the contract of
messenger of the telegram company, this was a “telegram adhesion did not bind the parties:
collect.” So, the Congressman paid it, but obviously the 1. Contracts of adhesion were of the nature of
Congressman was disappointed and mad about what being entered into on a “take it or leave it”
happened. Can you imagine? Your mayor is asking a basis;
favor from you and ikaw pa’y pabayron sa telegram fee? 2. It was a matter of public knowledge then, and
judicially noticed, that there was an acute
So, when the mayor arrived in the office of the shortage of inter-island vessels plying the
Congressman, the mayor was castigated or was scolded various PH islands, leaving passengers with
by the Congressman. “Kabaga gud nimog nawng, you are no choice but to avail of whatever
asking a favor from me and then you send a telegram and accommodation they can secure, even at risk
you made it collect?!” of their safety;
3. Shipping companies are franchise holders of
So, the mayor was shocked. He said, “I paid for it, Mr. certificates of public convenience, and
Congressman. I still have the receipt to prove that I paid therefore possess a virtual monopoly over the
for it.” business of transporting passengers between
ports; and
So when the mayor returned to his home province/town, 4. Judicial notice was taken of the fact that the
he immediately filed a case against the telegram company bulk of those who board inter-island vessels
for breach of contract with damages. come from low-income groups and are less
literate, and who have little or no choice but to
Again, the telegram company invoked the defense of avail of the shipping company’s services.
improper venue. It said, “When you send a telegram,
there is a big paper there, and at the back of it, there are On the other hand, in the Arquero case, the SC cited the
the terms and conditions or stipulations regarding the following as the grounds for ruling that there was no
contract between us. And it is very clear there that the contract of adhesion:
venue shall be filed only and only in the main office of the 1. The condition with respect to the venue was
telegram company in Metro Manila.” clearly printed in the telegram form; and
2. The petitioner had a high level of educational
So, the telegram company filed a motion to dismiss. The attainment, being a lawyer by profession and
court in the province dismissed it. So, the mayor went up being a municipal mayor.
to the Supreme Court and he invoked the case of Sweet
Lines vs. Teves that even though there is a stipulation at On such grounds, the mayor was charged with notice
the back of the contract between the telegram company of the condition limiting the venue to Metro Manila
and him, the mayor, the stipulation as to the venue were when he signed the contract.
all prepared by the telegram company. He had no
participation whatsoever. So, like in the case of Sweet Monte: The ruling in Arquero vs. Flojo was also reiterated
Lines vs. Teves, it can be disregarded. in Pilipino Telephone Corporation vs. Tecson. (Case
mentioned but not discussed.)
But, surprisingly, the SC said, “No, we will not apply the
contract of adhesion here, unlike in the case of Sweet PILIPINO TELEPHONE CORPORATION VS.
Lines vs. Teves, where the contract was contained in a
TECSON
small piece of paper and printed in very fine letters, and G. R. No. 156966, May 7, 2004
the riding public has no option but to take that trip,
otherwise they would not be able to attend their trial. FACTS: Mr. Tecson applied for six cellular phone
subscriptions with Pilipino Telephone Corporation
Here, the contract is contained in a big paper, much (PILTEL). The applications were approved and covered
bigger than the ticket. And, also, it clearly provides for the
by six mobiline service agreements, all of which provides:
venue.” And so, the SC said, “There is no contract of “Venue of all suits arising from this Agreement or any
adhesion here. The agreement as to venue is binding other suit directly or indirectly arising from the relationship
between the parties.” between PILTEL and subscriber shall be in the proper

Gaviola Sevilla Torres

courts of Makati, Metro Manila. Subscriber hereby violates the contract, he can be sued in Masantol,
expressly waives any other venues.” Pampanga.” The lessor resides in Masantol, while the
lessee resides in Tondo, Manila
Mr. Tecson filed with the RTC, Iligan City, Lanao Del
Norte, a complaint against petitioner for a “Sum of Money Subsequently, the lessee violated the contract, and an
and Damages.” PILTEL moved for the dismissal of the ejectment suit was filed against him by the lessor in the
complaint on the ground of improper venue. MTC of Masantol. The lessee filed a motion to dismiss on
the ground of lack of jurisdiction, stating that the venue of
ISSUE: Whether or not the complaint was filed in the the action should have been in Manila, where the real
wrong venue. property was located. He alleged that the stipulation in the
contract fixing the venue was void for being contrary to
RULING: Section 4, Rule 4, of the Revised Rules of Civil Sec. 2 (a), Rule 4 of the Rules of Court.
Procedure allows the parties to agree and stipulate in
writing, before the filing of an action, on the exclusive Was venue properly laid in Masantol, despite the real
venue of any litigation between them. Such an agreement property subject of the proceeding being in Manila?
would be valid and binding provided that the stipulation on
the chosen venue is exclusive in nature or in intent, that it Yes. The Municipal Court of Masantol, like other inferior
is expressed in writing by the parties thereto, and that it is courts, has exclusive original jurisdiction to entertain
entered into before the filing of the suit. ejectment suits.

The provision contained in paragraph 22 of the “Mobile Section 1(a) of Rule 4 states: “Forcible entry and detainer
Service Agreement,” a standard contract made out by actions regarding real property shall be brought in the
petitioner PILTEL to its subscribers, apparently accepted municipality or city which the subject matter thereof is
and signed by respondent, states that the venue of all situated.” This doesn’t refer to the jurisdiction over the
suits arising from the agreement, or any other suit directly subject matter, but only to the place where the ejectment
or indirectly arising from the relationship between PILTEL suit may be brought.
and subscriber, “shall be in the proper courts of Makati,
Metro Manila.” The added stipulation that the subscriber Section 3, Rule 4 also states: “… by written agreement of
“expressly waives any other venue” should indicate, the parties the venue of an action may be changed or
clearly enough, the intent of the parties to consider the transferred from one province to another.” Such an
venue stipulation as being preclusive in character. agreement was formalized by the lessor and lessee.
Agreement is valid, binding and enforceable.
Monte: So, the Polytrade vs. Blanco is the leading case,
with an exception in the case of Sweet Lines vs. Teves, RULE 5
and the case of Sweet Lines vs. Teves on contract of UNIFORM PROCEDURE IN TRIAL COURTS
adhesion was not applied by the Supreme Court in the
case of Arquero vs. Flojo, and in the case of Pilipino Sec. 1. Uniform Procedure
Telephone Corporation vs. Tecson.
SECTION 1. Uniform Procedure. — The procedure in
Agreement as to Venue in a Contract of Lease the Municipal Trial Courts shall be the same as in the
Regional Trial Courts, except (a) where a particular
VILLANUEVA VS. JUDGE MOSQUEDA provision expressly or impliedly applies only to either of
G.R. No. L-58287, August 19, 1982 said courts, or (b) in civil cases governed by the Rule on
Summary Procedure. (n)
An agreement as to venue in a contract of lease is valid
and binding. Thus, even if the real property is located in GEN: The procedures in the MTCs shall be the same
Manila but the parties have agreed on a venue at procedures in RTCs.
Masantol, Pampanga, the same has to be followed and XPN:
the filing of the ejectment case in Masantol is proper. 1) Where a particular provision expressly or impliedly
applies only to either of the said courts; or
A/N: Case not discussed exhaustively. 2) In civil cases governed by the Rules on Summary
Procedure.
FACTS: This is about an ejectment case filed in Masantol,
Pampanga. It arose out of a supplementary lease Monte: The Rules on Summary Procedures apply only in
agreement between Bonifacio (Lessor) and Villanueva the MTCs. And because the claims there are very small.
(Lessee), regarding Bonifacio’s house in Tondo, Manila. In fact, we now have a new rule on small claims. The
Small Claims Rule is applied only in the MTCs.
It was stipulated in the contract that “If the lessor violates
the contract, he can be sued in Manila. If the lessee

Gaviola Sevilla Torres

 Sec. 2. Meaning of the term “Municipal Trial Court” DEFINITION OF PLEADING
Pleadings are written statements of the respective claims
SECTION 2. Meaning of Terms. — The term "Municipal and defenses of the parties submitted to the court for
Trial Courts" as used in these Rules shall include appropriate judgment (Sec.1).
Metropolitan Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts, and Municipal Circuit Trial Courts. PLEADINGS ALLOWED IN COURT
(1a) 1) Complaint
2) Answer
The term “Municipal Trial Courts” as used in the Rules 3) Counterclaim
include the following: 4) Cross-claim
1) MeTC – Metropolitan Trial Court; 5) Reply
2) MTCC – Municipal Trial Court in Cities; 6) Third Party Complaint (Fourth, Fifth, etc.)
3) MTC – Municipal Trial Court; 7) Complaint-in-Intervention
4) MCTC – Municipal Circuit Trial Court.
COMPLAINT
Monte: The term “Municipal Trial Court” includes the
former city courts. There are two kinds of city courts. We SECTION 3. Complaint. — The complaint is the
have the: pleading alleging the plaintiff's or claiming
1) Metropolitan Trial Courts (in Metropolitan Manila party's cause or causes of action. The names and
only); and the residences of the plaintiff and defendant must be
2) Municipal Trial Courts in Cities all over the stated in the complaint. (3a)
Philippines outside Manila. Cebu City, Iloilo,
Bacolod, Davao.
A complaint is the pleading alleging the plaintiff’s cause
These city courts are now called MTCCs. or causes of action. A complaint is also known as the
“Initiatory Pleading”.
Now, there are also two kinds of municipal courts in the
municipalities or towns in the provinces. We have the: The allegations in the complaint must contain the four
1) Municipal Trial Courts for bigger municipalities; elements of a cause of action, to wit: (a) the right; (b) the
and obligation; (c) the delict or wrong committed in violation of
2) Municipal Circuit Trial Court for several smaller your right; and (d) damage.
municipalities – 2, 3 or 4 municipalities, only 1
court. ANSWER

RULE 6
SECTION 4. Answer. — An answer is a pleading in
KINDS OF PLEADINGS which a defending party sets forth his or her defenses.
(4a)
RULE 6
Kinds of Pleadings SECTION 5. Defenses. — Defenses may either be
negative or affirmative.
SECTION 1. Pleadings Defined. — Pleadings are the
(a) A negative defense is the specific denial of the
written statements of the respective claims and
material fact or facts alleged in the pleading of the
defenses of the parties submitted to the court for claimant essential to his or her cause or
appropriate judgment. (1)
causes of action.
SECTION 2. Pleadings Allowed. — The claims of a
(b) An affirmative defense is an allegation of a new
party are asserted in a complaint, counterclaim, cross-
matter which, while hypothetically admitting the
claim, third (fourth, etc.)-party complaint, or complaint-
material allegations in the pleading of the claimant,
in-intervention. would nevertheless prevent or bar recovery by him or
The defenses of a party are alleged in the answer to her. The affirmative defenses include fraud,
the pleading asserting a claim against him or her. statute of limitations, release, payment, illegality,
statute of frauds, estoppel, former recovery, discharge
An answer may be responded to by a reply only if the in bankruptcy, and any other matter by
defending party attaches an actionable document to way of confession and avoidance.
the answer. (2a)
Affirmative defenses may also include grounds for the
dismissal of a complaint, specifically, that the court has
The parties’ respective claims and defenses are no jurisdiction over the subject matter, that there is
submitted to the court in writing for its consideration. another action pending between the same parties for

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 the same cause, or that the action is barred by a prior Dean: Aside from fraud, prescription, statute of frauds,
judgment. (5a) etc., you can include these additional grounds. This is
new under the 2019 amendment. Under the old rules
An answer is a pleading in which a defending party sets (1997 rules), there used to be a rule on Motion to Dismiss,
forth his defenses (Sec. 4) Rule 16, which enumerates 10 grounds. But under the
new rules, there is no longer Rule 16. Motion to Dismiss
Defenses in the Answer: is already taken out. The grounds for Motion to Dismiss
1. Negative Defenses – Denial shall now be incorporated in your Answer by way of
2. Affirmative Defenses – Admission with denial special affirmative defense. All the grounds of a motion to
a. Fraud dismiss shall now be used as a special affirmative
b. Prescription defense. In Rule 16 before, there are some grounds which
c. Statute of Fraud are not considered waived if not raised in the Answer or
d. Illegality in a Motion to Dismiss. What were these grounds? Lack
e. Estoppel, release, payment, etc. of jurisdiction over the subject matter, litis pendentia, res
f. Discharge in bankruptcy judicata, and prescription. In the old rules, these said
grounds are not considered waived even if not raised in
Dean: In your complaint, you must clearly state what are the Answer. The court can even motu propio dismiss your
your rights under the law and what are the obligations of complaint if any of these grounds is found in the
the defendant in respect to your rights. What did the complaint. These were the strongest grounds in a Motion
defendant do that violated your right? Allege that what the to Dismiss before. The other grounds are deemed waived.
defendant did to you caused you damage or injury.
Under the new rules, you can still file a motion to dismiss
There are two kinds of defenses that may be set up: but the grounds are limited to these:
negative defense and affirmative defense. When a written 1) Lack of jurisdiction over the subject matter;
complaint is presented in court, the allegations are 2) Litis pendentia;
presented in paragraphs. If you are the defendant, you 3) Res judicata;
deny these material allegations by saying “I specifically 4) Prescription
deny paragraph 3 of the complaint for it is not true that I
have done this or that…” or “I specifically deny the The other grounds in the former Rule 16 must be
material allegation in paragraph 3 for the truth of the incorporated in the Answer by way of a special affirmative
matter is this…” Those are examples of a negative defense. The new rules try to avoid, as much as possible,
defense. a motion to dismiss because it will unnecessarily delay the
Now, an affirmative defense is actually an admission of proceeding.
the averments in the complaint but it invokes a right that
the plaintiff cannot recover from you. Even if it is true, the The new rules also provide additional special affirmative
plaintiff is barred from recovering from you. It is otherwise defenses found in Rule 8, Sec. 12 of the 2019 revised
known as “confession and avoidance”. What are these rules.
affirmative defenses?
1. Fraud Additional Special Affirmative Defenses (Rule 8,
2. Prescription Section 12, New Rules):
3. Statute of Fraud 1) Lack of jurisdiction over the person;
4. Illegality 2) Venue is improperly laid;
5. Estoppel, release, payment, etc. 3) Plaintiff has no legal capacity to sue;
6. Discharge in bankruptcy 4) Pleading states no cause of action;
5) Failure to comply with condition precedent to the
Usually, the answer of the defendant would be “Answer filing of the case;
with Counterclaim” or “Answer with Special Affirmative
Defenses and Counterclaim”. COUNTERCLAIM

Affirmative Defenses may also include grounds for

SECTION 6. Counterclaim. — A counterclaim is any
dismissal of the complaint, specifically (2019
claim which a defending party may have against an
amendment):
opposing party. (6)
1) Lack of jurisdiction over subject matter; SECTION 7. Compulsory Counterclaim. — A
2) There is another action pending between the compulsory counterclaim is one which, being
same parties for the same cause of action (litis cognizable by the regular courts of justice, arises
pendentia); out of or is connected with the transaction or
3) The action is barred by prior judgment (res occurrence constituting the subject matter of the
judicata). opposing party's claim and does not require for its

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 adjudication the presence of third parties of whom the was negligent. During the trial, I was able to prove your
court cannot acquire jurisdiction. Such a counterclaim negligence. After the court dismissed your complaint, I will
must be within the jurisdiction of the court both as to now file a damage suit against you using that decision.
the amount and the nature thereof, except that in an Can I do that? NO. My claim is a compulsory
original action before the Regional Trial Court, the counterclaim. My claim for damages arising out from that
counterclaim may be considered compulsory vehicular accident should have been incorporated in the
regardless of the amount. A compulsory counterclaim answer. Since I did not incorporate that in my answer, I
not raised in the same action is barred, unless am already barred from raising that later on.
otherwise allowed by these Rules.(7a)
If your counterclaim is permissive, you can file it
A counterclaim is any claim which a defending party may separately anytime. For example, you filed a complaint
have against an opposing party (Sec. 6). against me for collection of sum of money arising out of a
contract of loan that I did not pay, but then I remember
Kinds of Counterclaim that you also have payables on me, I can set that up as a
1) Compulsory permissive counterclaim in my answer. But if I did not set
2) Permissive that up, no one can prevent me from treating that as a
separate action.
Dean: Now, the Answer of a defendant may also contain
a counterclaim. In the answer, the defendant may invoke Elements of Compulsory Counterclaim
a negative defense or a special affirmative defense but he
may also include a counterclaim. If the defendant has a 1) It is cognizable by a regular court of justice;
claim against the plaintiff, he may include that in his 2) It arises out of or is connected with a transaction
answer. There are two kinds of counterclaim: compulsory or occurrence constituting a subject matter of the
and permissive. The former is a counterclaim which arises opposing party’s claim;
out of the same transaction which is the same subject 3) It does not require for its adjudication the
matter of the plaintiff’s complaint. Such counterclaim is presence of third parties whom the court cannot
very much related to the cause of action in the complaint. acquired jurisdiction
4) It must be within the jurisdiction of the court, both
For example, if I deny the material averments against me, as to the amount and the nature thereof, except
and on the contrary I say that it is you who violated the that in an original action before the RTC, the
terms of the contract, I am making a counterclaim against counterclaim may be considered compulsory
you. What kind of counterclaim is that? That is a regardless of the amount; and
compulsory counterclaim because that is related to the 5) The defending party has a counterclaim at the
complaint you filed against me. It arises out of the same time he files his answer.
contract.
Dean: It must be cognizable by a regular court of justice.
Permissive counterclaim refers to any claim that the For example, you filed a case against me in the RTC for
defendant may have against the plaintiff even if it is not collection of sum of money claiming that I have not paid
related to the subject matter of the complaint. If you filed the loan of P5Million. In my Answer, I said that you have
a case against me for collection of sum of money and in not also paid me my salary when you hired me before as
my Answer, I set up a counterclaim which says that “yes, your chief cook in your restaurant. Can I invoke that as a
I borrowed money from you but do you recall that there compulsory counterclaim? NO. Because the counterclaim
was also a time that you borrowed money from me a long against you arises out of a labor dispute. It is not
time ago and you have not paid yet?” or “there was a time cognizable by the RTC but by the Labor Arbiter.
that you contracted me to build a fence around your house
and you have not paid the full contract price”. Can I set You filed a case against me for breach of contract with
that up? Yes, but since that is not related to the subject damages. Since the amount that you claim is only
matter of the complaint, my counterclaim here is P250,000, the case was filed in the MTC. When I made
permissive. I may or I may not include that. A permissive an Answer, I made a counterclaim that it was actually you
counterclaim can be litigated in a separate action but a who was at fault and I demanded for damages in the
compulsory counterclaim must be integrated in the amount of P500,000. Can I set that up as a counterclaim?
Answer. No. The counterclaim is already beyond the jurisdiction of
the municipal trial court.
If your counterclaim is compulsory, you must have to
set that up in your answer, otherwise it is deemed waived. But if your case was filed in the RTC because your claim
Suppose you filed a case against me for damage to is P500,000, and my counterclaim is only P250,000, can
property through reckless imprudence. Your car versus I set that up as a counterclaim in the RTC? Yes (see
my car. Collided in the street. My answer is that I wasn’t element no. 4)
the one responsible for the accident as it was you who

Gaviola Sevilla Torres

COUNTERCLAIM IN CRIMINAL CASES A counter-counterclaim is a counterclaim made by the
When the civil action is deemed impliedly instituted in the plaintiff against the defendant who filed a counterclaim. A
criminal action, the accused may set up a compulsory counter-cross claim is a counterclaim of a cross-
counterclaim against the complainant (Javier v. IAC, 171 defendant against a cross-plaintiff.
SCRA 605).
REPLY
This ruling was later on abandoned when the Supreme
Court said that a counter-claim of the accused cannot be
tried together with the criminal case because it will SECTION 10. Reply. — All new matters alleged in
unnecessarily complicate and confuse the criminal the answer are deemed controverted. If the plaintiff
wishes to interpose any claims arising out of the new
proceeding (Cabaero v. Cantos, 271 SCRA 392).
matters so alleged, such claims shall be set forth in
an amended or supplemental complaint. However,
Dean: There is a civil aspect in criminal cases. That
the plaintiff may file a reply only if the defending party
recovery of damages arising out of a crime committed is
actually a civil action. When a criminal case is filed against attaches an actionable document to his or her
you, can you file in your Answer a counterclaim? In Javier answer.
v. IAC, the Court said yes. But that ruling was abandoned A reply is a pleading, the office or function of which is
in Cabaero v. Cantos where the SC said that a to deny, or allege facts in denial or avoidance of new
counterclaim of the accused cannot be tried together in matters alleged in, or relating to, said actionable
the criminal case because that will just unnecessarily document.
complicate and confuse the criminal proceeding. The
ruling in Cabaero is now integrated in the new rules which In the event of an actionable document attached to
will be discussed to you by Atty. Soleng. the reply, the defendant may file a rejoinder if the
same is based solely on an actionable
CROSS-CLAIM document. (10a)

SECTION 8. Cross-Claim. — A cross-claim is any Reply is a pleading, the office or function of which is to
claim by one party against a co-party arising deny, or allege facts in denial or avoidance of new matter
out of the transaction or occurrence that is the alleged by way of defense in the answer and thereby join
subject matter either of the original action or of a or make issue as to such new matters. If the party does
counterclaim therein. Such cross-claim may cover all not file such reply, all new matters alleged in the answer
or part of the original claim. (8a) are deemed controverted.

SECTION 9. Counter-Counterclaims and All new matters alleged in the answer are deemed
Counter-Cross-Claims. — A counterclaim may be controverted. If plaintiff wishes to impose any claims
asserted against an original counter-claimant. arising out of the new matters so alleged, such claims
shall be set forth in an amended or supplemental
A cross-claim may also be filed against an original
complaint. However, the plaintiff may file a reply only if
cross-claimant. (9)
a defending party attaches an actionable document to
his or her answer.
It is any claim by one party against a co-party arising out
of the transaction or occurrence that is the subject matter In the event of an actionable document attached to the
either of the original action or of a counterclaim therein. reply, the defendant may file a rejoinder if the same Iis
based solely on an actionable document. (Rule 6, Sec.
Dean: Here, it presupposes that there are two or more 10, 2019 Amendment).
defendants. You filed a case against me and my friend,
Mr. A. I said “it’s not my fault. It’s my friend’s fault. I have Dean: Under the old rules, if you filed an Answer and you
nothing to do with this.” What will I do? I will file an answer raised new matters in your answer, I would have to file a
denying your accusations against me then I will file a Reply if I wanted to answer those new matters.
cross-claim against my co-defendant. A cross-claim is
actually a form of a claim where the defendant will pass Under the new rules, that is no longer necessary. The
on the blame to his co-defendant. He would say “Ok, if the plaintiff does not have to file a reply anymore if there are
court would decide against the two of us, my liability new matters raised in the answer of the defendant. All
should be shouldered by Mr. A because it is not my fault.” new matters raised in the answer are deemed
That is an example of a cross-claim. controverted or denied by the plaintiff. Reply is
necessary only if the answer of the defendant which
You may incorporate that also in your Answer. It will be raises new matters contains an actionable document.
“Answer with Cross-claim”. There is also what we call a If there is none, no need to file a reply.
“counter-counterclaim and counter-cross claim”.

Gaviola Sevilla Torres

 When is reply mandatory? • Third Party Complaint must be with leave of court.
• When the court denies a motion to file third-party
1) Where the answer alleges the defense of usury. complaint, the remedy of the party is appeal.
(See Liam Law v. Olympic Sawmill, L-30771, May • Where the trial court has jurisdiction over the main
26, 1984). (Dean: this is no longer applicable) case, it also has jurisdiction over the third-party
2) When the answer is based on an actionable complaint regardless of the amount involved as a
document. third-party complaint is merely ancillary to and is a
continuation of the main action.
Distinguish “Reply” from “Answer to Counterclaim”
The Purpose of 3rd Party Complaint:
A reply is a response to the defense set up by the
defendant in his answer, whereas, the answer to 1) Contribution
counterclaim is a response of the plaintiff to the 2) Indemnity
counterclaim of the defendant. Secondly, the filing of a 3) Subrogation
reply is generally optional while the filing of an answer to 4) Any other relief in respect to opponent’s claim
counterclaim is mandatory.
Four Tests to Determine Propriety of Third-Party
THIRD (FOURTH ETC.)-PARTY COMPLAINT Complaint

SECTION 11. Third, (Fourth, etc.)-Party 1) Whether it arises out of the same transaction on
Complaint. — A third (fourth, etc.)-party complaint is which plaintiff’s claim is based;
a claim that a defending party may, with 2) Whether the third-party’s complaint, although arising
leave of court, file against a person not a party to the out of another transaction, is connected with the
action, called the third (fourth, etc.)-party defendant plaintiff’s claim;
for contribution, indemnity, subrogation or any other 3) Whether third-party defendant would be liable to the
relief, in respect of his or her opponent's claim. original plaintiff’s claim. Although the third-party
defendant’s liability arises out of another transaction;
The third (fourth, etc.)-party complaint shall be denied 4) Whether the third-party defendant may assert any
admission, and the court shall require the defendant defense which the third-party plaintiff has or may
to institute a separate action, where: (a) the third have against plaintiff’s claim.
(fourth, etc.)-party defendant cannot be located within
thirty (30) calendar days from the grant of such leave; Dean: If you are the plaintiff and I am the defendant, and
(b) matters extraneous to the issue in the principal I say “No, it is not my fault. It is the fault of another person”
case are raised; or (c) the effect would be to introduce but this person is not impleaded in the complaint, such
a new and separate controversy into the action. (11a) person is called a third party. If I want to drag that person
SECTION 12. Bringing New Parties. — When the to the case, I will need to ask permission from the court.
That is why a third party complaint requires leave of court.
presence of parties other than those to the original
Unlike in a cross-claim, if you file a claim against your co-
action is required for the granting of complete relief
defendant, there is no need for leave of court because he
in the determination of a counterclaim or cross-claim,
the court shall order them to be brought in as is already a party to the case.
defendants, if jurisdiction over them can be obtained.
(12) When the court denies a motion to file a third-party
complaint, the remedy is to appeal.
SECTION 13. Answer to Third (Fourth, etc.)-Party
Complaint. — A third (fourth, etc.)-party defendant Example of a Third Party Claim:
may allege in his or her answer his or her defenses, I have a car which I sold to my friend, Mr. A, who was not
counterclaims or cross-claims, including such defenses able to transfer the registration in his name. The car
that the third (fourth, etc.)-party plaintiff may have driven by Mr. A collided with Mr. X’s car. When Mr. X
against the original plaintiff's claim. In proper cases, he looked into the registration, the car was still registered to
or she may also assert a counterclaim against the my name. So Mr. X filed a case against me for reckless
original plaintiff in respect of the latter's claim against imprudence resulting to damages. I was shocked for I am
the third-party plaintiff. (13a) no longer the owner of the car. Let us assume that after
the collision, Mr. A sped away, nisibat. Since I am the
It is a claim that a defending party may, with leave of court, defendant now, I will file a third party case against A
file against a person not a party to the action, called the because he is now the one in possession of the car. I have
third (fourth, fifth, etc.) party defendant, for contribution, to ask permission of the court to allow me to file a third
indemnity, subrogation or any other relief, in respect of his party claim against A who shall be called the third-party
opponent’s claim (Sec. 11). defendant.

Gaviola Sevilla Torres

Third-Party Complaint in Criminal Cases Monte: Basically, we only have three parts of a pleading:
the caption, the body, and the verification which also
The ruling in Shafer v. Judge of RTC of Olongapo City, includes the certificate for non-forum shopping.
167 SCRA 386, which allow third party complaint in
criminal case has already been abandoned by the The caption sets forth the name of the court. The title of
Cabaero case. In fact, it is now incorporated in Section the action, and the docket number if assigned, and the
1(a) of Rule 111 of the 2000 Revised Rules on Criminal parties to the action.
Procedure that “No counterclaim, cross-claim, or third-
party complaint may be filed by the accused in a criminal B. The Body
case”. The same may be litigated in a separate civil
action. SECTION 2. The Body.— The body of the pleading sets
forth its designation, the allegations of the party's claims
The third (fourth) party complaint shall be denied, and or defenses, the relief prayed for, and the date of the
the court shall require the defendant to institute a pleading. (n)
separate action where:
(a) Paragraphs.— The allegations in the body of a
1) The third (fourth) party defendant cannot be pleading shall be divided into paragraphs so numbered as
located within 30 days from the grant of such to be readily identified, each of which shall contain a
leave; statement of a single set of circumstances so far as that
2) Matters extraneous to the issue in the principal can be done with convenience. A paragraph may be
case are raised; referred to by its number in all succeeding pleadings. (3a)
3) Effect would be to introduce a new and separate
controversy into the action (Rule 6, Sec. 11, 2019 (b) Headings.— When two or more causes of action are
Amendment). joined, the statement of the first shall be prefaced by the
words, "first cause of action," of the second by "second
COMPLAINT-IN-INTERVENTION cause of action," and so on for the others.

Intervention is a remedy by which a third party, not When one or more paragraphs in the answer are
originally impleaded in a proceeding, becomes a litigant addressed to one of several causes of action in the
therein to enable him to protect or preserve a right or complaint, they shall be prefaced by the words "answer to
interest which may be affected by such proceeding. the first cause of action" or "answer to the second cause
[Restaurante Las Conchas v. Llego, G.R. No 119085 of action" and so on; and when one or more paragraphs
(1999), citing First Philippine Holdings Corporation v. of the answer are addressed to several causes of action,
Sandiganbayan, G.R. No. 88345 (1996)] (lifted from UP they shall be prefaced by words to that effect. (4)
BOC 2020)
(c) Relief .— The pleading shall specify the relief sought,
RULE 7 but it may add a general prayer for such further or other
PARTS AND CONTENTS OF A PLEADING relief as may be deemed just or equitable. (3a, R6)

A. Caption (d) Date.— Every pleading shall be dated.

SECTION 1. Caption. — The caption sets forth the name The body of the pleading sets forth its designation, the
of the court, the title of the action, and the docket number allegations of the party’s claims or defenses, the relief
if assigned. prayed for, and the date of the pleading.
• Paragraphs
The title of the action indicates the names of the parties. • Headings
They shall all be named in the original complaint or • Relief
petition; but in subsequent pleadings, it shall be sufficient • Date
if the name of the first party on each side be stated with
an appropriate indication when there are other parties. Monte: The pleading should be presented by paragraph
form. It should be contain a heading, a relief prayed for,
Their respective participation in the case shall be and the date it was made.
indicated

The caption sets forth the:

1. Name of the court
2. Title of the action, and
3. Docket number, if assigned.

Gaviola Sevilla Torres

Example of a caption of a pleading: The second paragraph will state common causes of
action for a breach of contract, for example, “Plaintiff and
defendant entered into a contract for the construction of
the house of the plaintiff on May 1, 2019, as evidenced by
a contract attached as xxx.

In Paragraph 3, “it was stipulated in the contract,

particularly in paragraph 5 thereof that xxxx and that
provision was violated by the breach of contract. First
cause of action is the breach of contract.

In Paragraph 4, “That defendant, in gross violation of the

contract for the construction of the house, made the
following acts xxxx” – you will state all the averments
there in support of your cause of action for breach of
contract.
Monte: When you file the case in court, it does not have
the civil case number yet. When you file it, you will leave The second cause of action, is for damages – that as a
this blank because the number is assigned to you by the result of the breach of contract committed by the
clerk of court. defendant, plaintiff suffered damages, such as sleepless
nights, wounded feelings, etc.”
The title or the nature of the action is for rescission of
contract with damages. After you have stated all the material averments in
paragraph form, you will now ask for relief. For example:
The body of the complaint is stated below the heading
‘Complaint’, the designation of the nature of the pleading
whether it is a complaint, an answer, a cross-claim or a
complaint in intervention, etc. After the statement “comes
now plaintiff, by the undersigned counsel, unto this
Honorable Court, most respectfully States: xxx, you will
state your allegations or the material averments of the
complaint.

The allegations of the complaint must be presented in

paragraph form or if necessary, you may also put
subheadings. This is an example of a body of a complaint:

What are you asking from the court?

To rescind the contract, to order the defendant to pay
damages to the plaintiff.

Then you indicate the place where the pleading was made
and the date when it was made. Below is the name for the
counsel of the plaintiff. Below the relief is the verification
and a certification of non-forum shopping (CFNS).

C. Signature and Address

SECTION 3. Signature and Address. —

(a) Every pleading and other written submissions to the

The first paragraph is usually devoted to the introduction court must be signed by the party or counsel
of the parties. Paragraph 1 would say, “Plaintiff is of legal representing him or her.
age, Filipino, married, and a resident of Guadalupe, Cebu
City, while the defendant is likewise of legal age, Filipino, (b) The signature of counsel constitutes a certificate by
married, and a resident of Lahug, Cebu City where he him or her that he or she has read the pleading and
may be served with Summons and other processes of this document; that to the best of his or her knowledge,
Honorable Court.”

Gaviola Sevilla Torres

information, and belief, formed after an inquiry Monte: What is that proper office?
reasonable under the circumstances: The IBP Committee on Bar Discipline
(1) It is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or In fact, it is stated here that the lawyer or law firm
needlessly increase the cost of litigation; cannot pass on the monetary penalty to the client.
(2) The claims, defenses, and other legal contentions
are warranted by existing law or jurisprudence, or The new rules is very strict to discourage lawyers from
by a non-frivolous argument for extending, filing baseless, unfounded, and frivolous cases.
modifying, or reversing existing jurisprudence;
(3) The factual contentions have evidentiary support or, On whom sanction imposed:
if specifically so identified, will likely have The attorney, law firm, or the party that violated the rule.
evidentiary support after availment of the modes Note: The law firm shall be jointly and severally liable for
of discovery under these rules; and a violation committed by its partner, associate, or
(4) The denials of factual contentions are warranted on employee.
the evidence or, if specifically so identified, are
reasonably based on belief or a lack of Sanction may include, but shall not be limited to:
information. a. Non-monetary directive or sanction
b. An order to pay a penalty in court
(c) If the court determines, on motion or motu c. An order directing payment of attorney’s fees and other
proprio and after notice and hearing, that this rule has expenses
been violated, it may impose an appropriate sanction or Note: The lawyer or law firm cannot pass on the monetary
refer such violation to the proper office for disciplinary penalty to the client. [Sec. 3, Rule 7]
action, on any attorney, law firm, or party that violated
the rule, or is responsible for the violation. Absent Under the old rules, an unsigned pleading may be
exceptional circumstances, a law firm shall be held remedied if it was due to mere inadvertence and not
jointly and severally liable for a violation committed by intended for delay. However, under the Amended Rules,
its partner, associate, or employee. The sanction may an unsigned pleading may no longer be remedied since
include, but shall not be limited to, non-monetary the provision for such has been deleted from the
directive or sanction; an order to pay a penalty in court; amended rules of court. The lawyer, law firm, or party
or, if imposed on motion and warranted for effective responsible for filing an unsigned pleading may thus be
deterrence, an order directing payment to the movant of sanctioned under this rule unless there are exceptional
part or all of the reasonable attorney's fees and other circumstances. Also note that an unsigned pleadings
expenses directly resulting from the violation, including remains to be without legal effect, and is treated as “a
attorney's fees for the filing of the motion for sanction. mere scrap of paper.”
The lawyer or law firm cannot pass on the monetary
penalty to the client. Bar Matter No. 287 (September 26, 2000)

Note: Underlined are the amended portions. Counsel should indicate his PTR and IBP Official No. or
Lifetime Member Number
Implied Certification in Pleading
Monte: Under Bar Matter No. 287, the lawyer should also
Monte: The signature of the lawyer and the address is an include his Professional Tax Receipt (PTR) and IBP
implied certification of the lawyer in the pleading that Official Number – because as a member of the IBP, a
he was the one who prepared the pleading upon the lawyer is supposed to pay annual dues. As proof of
instruction of the plaintiff and all the allegation therein payment of annual dues, the lawyer must indicate the IBP
are true and correct. Official Receipt Number for the payment of annual dues.
Or if a lawyer is a lifetime member she has to indicate the
Effect of Violation of the Rule Lifetime Member Number. (Trivia: Dean Monteclar is a
lifetime member and he does not have to pay the
Section 3 (c) – If the court determines, on motion or motu membership fee annually because he paid it through lump
proprio and after notice and hearing, that this rule has sum).
been violated, it may impose an appropriate sanction or
refer such violation to the proper office for disciplinary Bar Matter No. 1132 (April 1, 2003)
action, on any attorney, law firm, or party that violated
the rule, or is responsible for the violation. Absent Counsel should indicate his Roll of Attorneys Number.
exceptional circumstances, a law firm shall be held jointly
and severally liable for a violation committed by its Monte: After the oath taking, lawyers will have to sign the
partner, associate, or employee. (2019 Amendment) roll of attorneys. Corresponding to their name is the roll of

Gaviola Sevilla Torres

attorney’s number – it indicates ikapila ka na lawyer in the requirement causes the dismissal of the case and
Philippines. expunction of the pleadings from the records.
[1 Riano 262-263, 2016 Bantam Ed.]
Trivia: Your roll of attorney’s number will determine if you
are an old or new lawyer. D. Verification

Sec 3 (b) – Rule 7 – Signature of counsel constitutes a SECTION 4. Verification. — Except when otherwise
certification that he has read the pleading and documents; specifically required by law or rule, pleadings need not
and to the best of his knowledge, information, and belief, be under oath or verified.
formed after an inquiry reasonable under the
circumstances: A pleading is verified by an affidavit of an affiant duly
(1) It is not being presented for any improper purpose authorized to sign said verification. The authorization of
(2) The claims, defenses are warranted by existing laws the affiant to act on behalf of a party, whether in the form
and jurisprudence; of a secretary's certificate or a special power of
(3) The factual contention have evidentiary support attorney, should be attached to the pleading, and shall
(4) The denial of factual contentions are warranted on the allege the following attestations:
evidence (2019 Amendment) (a) The allegations in the pleading are true and correct
based on his or her personal knowledge, or based on
Monte: When the lawyer signs the pleading or the authentic documents;
complaint or answer, it is actually a certification on her (b) The pleading is not filed to harass, cause
part that she has read the pleading and documents and unnecessary delay, or needlessly increase the cost of
to the best of her knowledge, information, and belief, litigation; and
formed after an inquiry reasonable under the (c) The factual allegations therein have evidentiary
circumstances that the said pleading is not being support or, if specifically so identified, will likewise have
presented for any improper purpose, the claims, defenses evidentiary support after a reasonable opportunity for
in the pleading are warranted by existing laws and discovery.
jurisprudence; factual contention have evidentiary
support; the denial of factual contentions are warranted The signature of the affiant shall further serve as a
on the evidence. This is introduced in the Rules of certification of the truthfulness of the allegations in the
Court for the first time. pleading.

This is intended to discourage lawyers from making A pleading required to be verified that contains a
frivolous claims. Some lawyers would file complaints even verification based on "information and belief," or upon
if they know that there is no sufficient evidence to support "knowledge, information and belief," or lacks a proper
the complaint. It will only cause clogging of dockets. verification, shall be treated as an unsigned pleading.

Under the new amendment, there is a corresponding Verification in the pleading refers to that portion in the
disciplinary sanction for that. You can be punished by pleading where the pleader certify that he caused the
the court upon discovery that you have filed baseless preparation of the pleading and that all the allegations
complaints. Under the 2019 amendment, when you sign therein are true and correct of his own knowledge and
the pleading, you warrant that it is not presented for any belief.
improper purpose, that the claims, defenses in the
pleading are warranted by existing laws and The pleader’s affirmation of the truth and correctness of
jurisprudence and that the factual contention have his allegations in the pleading must be based not only on
evidentiary support. his “knowledge and belief” BUT on his “personal
knowledge” or “based on authentic records”
All papers and pleadings filed in court must likewise bear
the following items: Monte: A verification is like a sworn statement by the
1. Professional Tax Receipt Number plaintiff stating that he is the one who caused the
2. IBP Official Receipt Number preparation of the pleadings and that all the allegations
3. Roll of Attorneys’ Number stated therein are true and correct of his own knowledge
4.MCLE Certificate of Compliance, or Certificate of and belief BUT according to the amendment, the
Exemption pleader’s affirmation of the truth and correctness of
his allegations in the pleading must be based not only
Note: Failure to comply with the first three requirements on his “knowledge and belief” BUT on his “personal
allow the court to not take action with the pleading, without knowledge” or “based on authentic records”.
prejudice to possible disciplinary actions against the
erring counsel. Failure to comply with the fourth Should every pleading be verified?
NO.

Gaviola Sevilla Torres

As a general rule, pleadings need not be verified. It is claim for relief, or in a sworn certification annexed
only required when the law so provides as in the following: thereto and simultaneously filed therewith: (a) that he or
(a) Petition for Relief from Judgment she has not theretofore commenced any action or filed
(b) Petition for Review under Rule 42 any claim involving the same issues in any court,
(c) Petition for Review under Rule 43 tribunal or quasi-judicial agency and, to the best of his
(d) Appeal by Certiorari under Rule 45 or her knowledge, no such other action or claim is
(e) Petition for Annulment of Judgment of RTC pending therein; (b) if there is such other pending action
(f) Petition for Certiorari, Prohibition, Mandamus, or claim, a complete statement of the present status
etc. thereof; and (c) if he or she should thereafter learn that
the same or similar action or claim has been filed or is
Monte: If the law does not require the pleading to be pending, he or she shall report that fact within five
verified, then you should not verify the pleading. (5) calendar days therefrom to the court wherein his or
her aforesaid complaint or initiatory pleading has been
What is the purpose of requiring a pleading to be filed.
verified?
It is to hold the pleader liable for perjury if it turns out that The authorization of the affiant to act on behalf of a
the statements in the pleading are not true. If a document party, whether in the form of a secretary's certificate or
is verified, meaning it is notarized by a lawyer – because a special power of attorney, should be attached to the
a verification must have a notarization of a lawyer, it is like pleading.
an affidavit – if it turns out not to be true, you will be held
liable for perjury. Failure to comply with the foregoing requirements shall
not be curable by mere amendment of the complaint or
The danger of verifying a pleading even if the law does other initiatory pleading but shall be cause for the
not require it to be verified is that you will be exposing dismissal of the case without prejudice, unless
yourself to perjury. You should not verify it unless the law otherwise provided, upon motion and after hearing. The
so provides. submission of a false certification or non-compliance
with any of the undertakings therein shall constitute
UP BOC 2020 indirect contempt of court, without prejudice to the
It is submitted that the requirement of the attachment of corresponding administrative and criminal actions. If the
the document of authorization implies that the authority of acts of the party or his or her counsel clearly constitute
such person may no longer be proven during trial. This, willful and deliberate forum shopping, the same shall be
therefore, overturns existing jurisprudence which ground for summary dismissal with prejudice and shall
provides that proof of one’s authority to sign a verification constitute direct contempt, as well as a cause for
may be taken up during trial. [246 Corp v. Daway, G.R. administrative sanctions.
No. 157216 (2003)] Proof of authority should already be
established by attaching said proof to the pleading. Certification is required only in INITIATORY PLEADING.

Effect of noncompliance or defective verification STO. TOMAS UNIVERSITY HOSPITAL VS SURLA, 294
General Rule: A pleading required to be verified that SCRA 382 AUGUST 17 1998
contains a verification based on "information and belief", Certification of non-forum shopping applies only to
or upon "knowledge, information and belief", or lacks a permissive counterclaim and not to compulsory
proper verification, shall be treated as an unsigned counterclaim.
pleading. [Sec. 4, Rule 7]
FAR EASTERN SHIPPING CO. VS CA ET AL. GR NO.
Note: An unsigned pleading produces no legal effect and 130068 OCTOBER 1 1998
is a “mere scrap of paper.” It is mandatory that the certification of non-forum
shopping be executed by the petitioner himself, and not
Exception: Lack of verification is a mere formal, and not by counsel.
a jurisdictional, requirement. As such, a defect in the
verification does not render the pleading fatally defective Monte: A certification of non-forum shopping (CNFS) is a
and the court may order its subsequent submission or certification by the pleader that there is no other case
correction if such serves the ends of justice. [Vda. de similar to the case filed still pending in other courts.
Formoso v. PNB, 650 SCRA 35 (2001)]
A CNFS is required only in an initiatory pleading such
E. Certification of Non-Forum Shopping as in a complaint. An Answer is not an initiatory pleading.
A permissive counter-claim is considered an initiatory
SECTION 5. Certification against Forum Shopping. pleading. A third-party complaint is also an initiatory
— The plaintiff or principal party shall certify under oath pleading. A cross-claim is also an initiatory pleading
in the complaint or other initiatory pleading asserting a

Gaviola Sevilla Torres

because you set into motion a new case or allegation. them substantially
These must be verified and must have a CNFS. complies with the rule

What pleadings require a certification against non- Juridical entities can only The following officials or
forum shopping (Initiatory pleadings) perform physical acts employees of the
1. Complaint through properly company can sign the
2. Permissive counterclaim delegated individuals. verification and
3. Cross-claim Hence, the certification certification without need
4. Third (fourth, etc.) party complain may be executed by of a board resolution:
5. Complaint-in-intervention properly authorized (1) the Chairperson of
persons. the Board of Directors,
Who signs: (2) the President of a
General Rule: Plaintiff or Principal party With respect to a corporation,
Rationale: The plaintiff, not the counsel, is in the best corporation, the (3) the General Manager
position to know whether he or it has actually filed or certification must be or Acting General
caused the filing of a petition. Certification signed by executed by an officer or Manager,
counsel without proper authorization is defective, and a member of the board of (4) Personnel Officer,
valid cause for dismissal [Anderson v. Ho, G.R. No. directors or by one who is and
172590 (2013)] duly authorized by a (5) an Employment
resolution of the board of Specialist in a labor
Exception: Authorized person, usually counsel If, for directors; otherwise, the case.
justifiable reasons, the party-pleader is unable to sign, he complaint will have to be
must execute a Special Power of Attorney designating his dismissed. The rationale behind the
counsel of record to sign on his behalf [Vda. de Formoso rule is that these officers
v. PNB, G.R. No. 154704 (2011)] In cases of a juridical are "in a position to verify
entity, the certification may be executed by a properly the truthfulness and
authorized person through due authorization by a board correctness of the
resolution. [Cosco v. Kemper, 670 SCRA 343 (2012)] allegations in the petition."

Note: Similar to the new requirement under verification, (CNFS Notes 2017-2018)
the authorization of the affiant to act on behalf of the party,
should be attached to the pleading. Effect of Noncompliant CNFS (Sec 5, Rule 7)
Defect Effect
Who executes certification of non-forum shopping Failure to comply with the Not curable by mere
Who Executes Exception requirement amendment of the
Certification complaint or other
Plaintiff or principal If, for reasonable or initiatory pleading
party, not the counsel. It justifiable reasons, the
is the petitioner and not party-pleader is unable to Cause for dismissal of the
the counsel who is in the sign, he must execute a case, without prejudice,
best position to know Special Power of unless otherwise
whether he or it actually Attorney designating provided, upon motion
filed or cause the filing of his counsel of record to and after hearing
a petition sign on his behalf. This
must be a specific SPA for False Certification Constitutes indirect
the purpose of filing a Non-Compliance of the contempt of court, without
certification of non-forum undertakings therein prejudice to administrative
shopping and not a and criminal actions
general SPA.
In case of multiple parties, Under reasonable or When there is willful and Ground for summary
the certification must be justifiable circumstances, deliberate forum shopping dismissal with prejudice
signed by ALL the as when the plaintiffs or
plaintiffs or petitioners petitioners share a Direct contempt of court
in a case common interest and
invoke a common cause Cause for administrative
of action or defense, the sanctions
signature of only one of
Effect of Lack of Certification of Non-Forum Shopping

Gaviola Sevilla Torres

The lack of certification against forum shopping is petition have been made in good faith or are true and
generally not curable by the submission thereof after correct.
the filing of the petition. Section 5, Rule 45 of the 1997 4. As to certification against forum shopping, non-
Rules of Civil Procedure provides that the failure of the compliance therewith or a defect therein, unlike in
petitioner to submit the required documents that should verification, is generally not curable by its subsequent
accompany the petition, including the certification against submission or correction thereof, unless there is a
forum shopping, shall be sufficient ground for the need to relax the Rule on the ground of "substantial
dismissal thereof. The same rule applies to certifications compliance" or presence of "special circumstances or
against forum shopping signed by a person on behalf of a compelling reasons."
corporation which are unaccompanied by proof that said 5. The certification against forum shopping must be
signatory is authorized to file a petition on behalf of the signed by all the plaintiffs or petitioners in a case;
corporation. otherwise, those who did not sign will be dropped as
parties to the case.' Under reasonable or justifiable
In certain exceptional circumstances, however, the circumstances, however, as when all the plaintiffs or
Court has allowed the belated filing of the certification. In petitioners share a common interest and invoke a
Loyola v. Court of Appeals, et al. (245 SCRA 477 [1995]), common cause of action or defense, the signature of
the Court considered the filing of the certification one day forum shopping substantially complies with the Rule.
after the filing of an election protest as substantial 6. Finally, the certification against forum shopping must
compliance with the requirement. In Roadway Express, be executed by the party-pleader, not by his counsel. If,
Inc. v. Court of Appeals, et al. (264 SCRA 696 [1996]), the however, for reasonable or justifiable reasons, the party-
Court allowed the filing of the certification 14 days before pleader is unable to sign, he must execute a Special
the dismissal of the petition. In Uy v. LandBank, supra, the Power of Attorney designating his counsel of record to
Court had dismissed Uys petition for lack of verification sign on his behalf.
and certification against nonforum shopping. However, it
subsequently reinstated the petition after Uy submitted a NOTE: If you failed to attach a certificate of non-forum
motion to admit certification and nonforum shopping shopping and your case gets dismissed, you can file a
certification. In all these cases, there were special motion for reconsideration and advance the presence of
circumstances or compelling reasons that justified "special circumstances or compelling reasons."
the relaxation of the rule requiring verification and
certification on non-forum shopping. (LDP Marketing However, you also need to cure the complaint together
Inc. v Monter) with the MR and attach a certificate of non-forum
shopping.
Summary Guidelines Respecting Non-Compliance
with the Requirements of, or Submission of Defective, F. Authorization of the Affiant
Verification and Certification Against Forum
Shopping SECTION 5 par (2) - The authorization of the affiant to
act on behalf of a party, whether in the form of a
In Traveno, et al. v. Bobongon Banana Growers Multi- secretary's certificate or a special power of attorney,
Purpose Cooperative, et al., the Court restated the should be attached to the pleading.
jurisprudence on non-compliance with the requirements
on, or submission of defective, verification and The authorization of the affiant to act on behalf of the party
certification against forum shopping: and sign the verification and the certificate of non-forum
1. A distinction must be made between non-compliance shopping should be attached to the pleading.
with the requirement on or submission of defective
verification, and non- compliance with the requirement on Non-compliance with this requirement is not curable by
or submission of defective certification against forum amendment but is a cause for the dismissal of the case
shopping. without prejudice.
2. As to verification, non-compliance therewith or a
defect therein does not necessarily render the Monte: If you file a case as a representative party, you
pleading fatally defective. The court may order its are filing it for and behalf the real owner of the real party
submission or correction or act on the pleading if the in interest, and sign the verification and CNFS, you
attending circumstances are such that strict compliance should attach your authority which is the Special
with the Rule may be dispensed with in order that the ends Power of Attorney executed in your favor by the real
of justice may be served thereby. party in interest.
3. Verification is deemed substantially complied with
when one who has ample knowledge to swear to the Non-compliance with this requirement is not curable
truth of the allegations in the complaint or petition by amendment but is a cause for the dismissal of the
signs the verification, and when matters alleged in the case without prejudice. If you do not have a CNFS, your
case will surely be dismissed. You cannot amend it.

Gaviola Sevilla Torres

 G. Contents RULE 8
MANNER OF MAKING ALLEGATIONS IN PLEADING
SECTION 6. Contents. — Every pleading stating a
party's claims or defenses shall, in addition to those A. What a pleading must contain
mandated by Section 2, Rule 7, state the following:
(a) Names of witnesses who will be presented to prove SECTION 1. In general. — Every pleading shall
a party's claim or defense; contain in a methodical and logical form, a plain,
concise and direct statement of the ultimate
(b) Summary of the witnesses' intended testimonies, facts, including the evidence on which the party
provided that the judicial affidavits of said witnesses pleading relies for his or her claim or defense, as the
shall be attached to the pleading and form an integral case may be.
part thereof. Only witnesses whose judicial affidavits
are attached to the pleading shall be presented by the If a cause of action or defense relied on is based on law,
parties during trial. Except if a party presents meitorious the pertinent provisions thereof and their applicability to
reasons as basis for the admission of additional him or her shall be clearly and concisely stated.
witnesses, no other witness or affidavit shall be heard
or admitted by the court; and Ever pleading shall contain in a methodical and logical
form, a plain, concise and direct statement of the ultimate
(c) Documentary and object evidence in support of the facts including the evidence on which the party pleading
allegations contained in the pleading relies for his claim or defense, as the case may be.

If a cause of action or defense relied is based on law, the

Every pleading stating a party's claims or defenses shall, pertinent provision thereof and their applicability to him or
in addition to those mandated by Section 2, Rule 7, state her shall be clearly and concisely stated.
the following:
(a) Names of witnesses who will be presented to Two Kinds of facts in a Pleading
prove a party's claim or defense; 1. Ultimate Facts
(b) Summary of the witnesses' intended 2. Evidentiary Facts
testimonies, provided that the judicial
affidavits of said witnesses shall be attached to Monte: This is one of the important amendments
the pleading and form an integral part thereof. introduced by the 2019 Amendments.
(c) Documentary and object evidence in support of
the allegations contained therein Under the former rules, when you make an allegation in
the pleading, you are supposed to state only the ultimate
Monte: This is entirely new. facts. You should avoid divulging evidentiary matters
because these are matters that you can present during
Under the Amendment, when you file a complaint you the trial. You just state the ultimate facts without need of
must indicate or incorporate in the complaint or answer stating the evidentiary matters. In the 2019 Amendments,
the name of your witnesses and ALL the judicial you have to state evidentiary facts.
affidavit of your witnesses must be attached to the
pleading – complaint or answer – and they shall form There are two facts that must be stated in the pleading.
an integral part thereof. Even the documentary and The ultimate facts and the evidentiary facts. The ultimate
object evidence must be attached. facts support your claim or defenses. The evidentiary
facts support the ultimate facts.
Rationale:
To ensure that a person filing a case or a pleading would, Under the New Rules, you have to divulge in the
at the time of filing, already have evidentiary basis to back pleading both the ultimate facts and the evidentiary
the same up, and there would be no delay caused by facts.
parties still trying to find evidence as basis for the claims
during the pendency of the case. If your pleading is based on a provision of law, you have
to quote the provision of law in your pleading – the
General Rule: pertinent provision thereof and the applicability to you
Only witnesses whose judicial affidavits areattached to shall be clearly and concisely stated in the pleading.
the pleading shall be presented by the parties during trial.
Summary
Exception: Every pleading shall contain in a methodical and logical
If a party presents meritorious reasons as basis for the form:
admission of additional witnesses 1. a plain, concise and direct statement of the ultimate
facts,

Gaviola Sevilla Torres

2. the evidence on which the party pleading relies for his Alternative Causes of Action
or her claim or defense, as the case may be A party may set forth two or more claims or defenses
3. If the cause of action or defense is based on law, the alternatively in one cause of action. Such happens when
pertinent provisions of the law and its applicability. [Sec. a party is not certain which cause of action would squarely
1, Rule 8] fit the set of facts alleged in the complaint. [1 Riano 278,
2016 Bantam Ed.]
Ultimate Facts Evidentiary Conclusions of
Facts Law Also, a pleading which alleges alternative causes of
These are the Those which are Not sustained by action is not made insufficient by the insufficiency of one
important and necessary to declarations of or more of the alternative statements as long as one of
substantial facts prove the facts. It does not them is sufficient. [Sec. 2, Rule 8]
which either ultimate fact or aid the
directly form the which furnish complaint in Example: A plaintiff may be unsure as to whether the
basis of the evidence of the setting forth a liability of the carrier is based either on breach of contract
plaintiff’s existence of cause of action. or a quasi-delict. The rules allow him to state both causes
primary right some other of action in the alternative. [1 Riano 278, 2016 Bantam
and duty or facts. Note: One must Ed.]
directly make up not state
the wrongful conclusions of C. How allegations in a pleading made?
acts or law and (a) Condition Precedent – General
omissions by statements or (b) Capacity to Sue – Particularity
the defendant mere evidentiary (c) Fraud or Mistake – Particularity
facts as this can (d) Malice, intent, condition of mind – General
be subjected to (e) Allegations of Judgment – General
a motion to
strike. Monte: How do you make allegations in the pleading?
Do you have to specify it or do you allege it with
Q: How do you determine whether a fact is essential generality?
to your cause of action or defense? It depends on what kind of allegation you are making.
A: The test to determine whether the fact is essential to
your cause of action is: if the statement in the pleading Conditions Precedent – General
cannot be deleted. Because if you delete it, the statement
of your cause of action or defense becomes incomplete, SECTION 3. Conditions Precedent. — In any pleading,
a certain element of cause of action disappears. (DGST a general averment of the performance or occurrence of
Notes 2018-2019) all conditions precedent shall be sufficient.

B. Alternative Causes of Action or Defense Monte: If you are alleging a condition precedent, you
must allege it with generality.
SECTION 2. Alternative Causes of Action or
Defenses. — A party may set forth two or more Examples of conditions precedent:
statements of a claim or defense alternatively or a. A tender of payment is required before making a
hypothetically, either in one cause of action or defense or consignation [Art. 1256, NCC]
in separate causes of action or defenses. When two or b. Exhaustion of administrative remedies is required in
more statements are made in the alternative and one of certain cases before resorting to judicial action [Lopez v.
them if made independently would be sufficient, the City of Manila, G.R. No. 127139 (1999); Dy v. CA, G.R.
pleading is not made insufficient by the insufficiency of No. 121587 (1999)]
one or more of the alternative statements. c. Prior resort to barangay conciliation proceedings is
necessary in certain cases [Book III, Title I, Chapter 7,
Monte: If you are not sure who between the two is liable LGC]
to the plaintiff, you can sue both of the defendants in the d. Earnest efforts toward a compromise must be
alternative. For example, you ship goods from Manila on undertaken when the suit is between members of the
board a ship to Cebu, and it was already damaged when same family and if no efforts were in fact made, the case
it arrived. You are not sure who is responsible for the must be dismissed, [Art. 151, FC]
damage, whether it is the shipping company or the e. Arbitration may be a condition precedent when the
arrastre, you can sue both of them in the alternative. contract between the parties provides for arbitration first
That’s why we call it alternative defendants. before recourse to judicial remedies [1 Riano 333-334,
2014 Bantam Ed.]

Gaviola Sevilla Torres

Note: The failure to comply with a condition precedent Monte: Allegations of judgment can be stated with
before the filing of a complaint is no longer a ground for generality.
an allowable motion to dismiss under the Amended
Rules. However, it is an affirmative defense that must be When you invoke a judgment of a foreign court or a
set out in the answer or else, it is deemed waived. [Sec. domestic court, you do not have to state that the court has
12, Rule 8] jurisdiction because it is presumed that the court is vested
with the proper authority or jurisdiction to hear it.
Capacity – Particularity However, if there is an authenticated copy of the
judgment or decision, it must be attached to the
SECTION 4. Capacity. — Facts showing the capacity of pleading.
a party to sue or be sued or the authority of a party to sue
or be sued in a representative capacity or the legal Action or Defense Based on Document
existence of an organized association of persons that is
made a party, must be averred. A party desiring to raise SECTION 7. Action or Defense Based on Document.
an issue as to the legal existence of any party or the — Whenever an action or defense is based upon a written
capacity of any party to sue or be sued in a representative instrument or document, the substance of such
capacity, shall do so by specific denial, which shall include instrument or document shall be set forth in the
such supporting particulars as are peculiarly within the pleading, and the original or a copy thereof shall be
pleader's knowledge. attached to the pleading as an exhibit, which shall be
deemed to be a part of the pleading.
Monte: If you are alleging the capacity to sue, you must
state it with particularity. For example, if you sue as a If the action or defense is based on a document:
representative of a real party in interest, you must have to 1. The substance of such shall be set forth in the
particularly state the basis of your authority and attach the pleading, and
special power of attorney authorizing you right to sue for 2. The original copy thereof be attached as an
and in behalf of the real party in interest. exhibit, and be considered part of the pleading as
an exhibit.
Fraud or Mistake – Particularity;
Malice, Intent, Condition of the Mind - General Monte: If your action or defense is based on a document,
you do not have to copy in verbatim the document in your
SECTION 5. Fraud, Mistake, Condition of the Mind. — In pleading. You just pick the portion in the document which
all averments of fraud or mistake, the circumstances is relevant to your cause of action or defense.
constituting fraud or mistake must be stated with
particularity. Malice, intent, knowledge, or other condition You quote the pertinent portion and you attach the entire
of the mind of a person may be averred generally. document as an exhibit and part of the pleading.

Monte: If you allege fraud or mistake, you have to state Note: The Amended Rules deleted the provision allowing
that with particularity. Malice, intent or condition of the for the copying of the instrument on the pleading.
mind, however, can be stated with generality. Therefore, such is no longer allowed as a means of
pleading an actionable document. This means that
Allegations of Judgment – General setting forth the substance of the actionable
document and the attachment of such to the pleading
SECTION 6. Judgment. — In pleading a judgment or is the only way to plead the document under the
decision of a domestic or foreign court, judicial or quasi- Amended Rules. (UP BOC 2020)
judicial tribunal, or of a board or officer, it is sufficient to
aver the judgment or decision without setting forth D. Actionable Document
matter showing jurisdiction to render it. An
authenticated copy of the judgment or decision shall be What is an actionable document
attached to the pleading. An actionable document is a document which serves as
the basis of plaintiff’s cause of action or the defendant’s
In pleading a judgment of a domestic or foreign court, defense.
quasi-judicial body, it is sufficient to aver the judgment
or decision without setting forth matter of jurisdiction Monte: For example, in a case of recovery of ownership
to render it. However, an authenticated copy of the of a parcel of land, the defendant claims that he has
judgment or decision shall be attached to the already bought the land from the plaintiff’s parents and
pleading. (Section 6, Rule 8 – 2019 Amendment) presented a Deed of Sale purportedly signed by the
parents. Here, the Deed of Sale is an actionable
document.

Gaviola Sevilla Torres

In a case of recovery of sum of money based on a loan Exceptions:
agreement, the promissory note is an actionable (a) When the adverse party is not a party to the
document – it is the basis of the plaintiff’s claim. If the document
defendant says he has already paid that loan, then the (b) When the order for the inspection of the
receipt attached to his Answer is an actionable document. document was not complied with (See Rule 27)

How to plead an actionable document Monte: For example, the plaintiff is the heir of the
registered owner of the land. The registered owner is
Monte: You do not have to copy in verbatim the entire already dead. The heir discovered that the land is already
actionable document but you have to attach the same to occupied by another person. She now files a case against
the pleading as an exhibit, which shall be deemed to be a that person. The defendant claims to have bought it from
part of the pleading. the deceased father of the plaintiff and showed a Deed of
Sale allegedly signed by the father.
How to contest such document
The plaintiff contends that it is not the signature of her
SECTION 8. How to Contest Such Documents. — father and it is a fake Deed of Sale. However, she did not
When an action or defense is founded upon a written deny the document under oath. Is she deemed to have
instrument, or attached to the corresponding pleading as admitted the genuineness and due execution of the
provided in the preceding section, the genuineness and document?
due execution of the instrument shall be deemed NO because she is not a party to the document, she is not
admitted unless the adverse party, under oath a signatory to the purported Deed of Sale. She cannot be
specifically denies them, and sets forth what he or prevented from contending that the document is fake.
she claims to be the facts; but the requirement of an
oath does not apply when the adverse party does not Another instance is when the order for the inspection of
appear to be a party to the instrument or when compliance the document was not complied with. For example, the
with an order for an inspection of the original instrument defendant attaches to his Answer a document in support
is refused. of his defense, but the document attached is not clear, the
wordings can hardly be read. The plaintiff asked to
General Rule: The adverse party, under oath, present the original of the purported document in court to
specifically denies them, and sets forth what he or she have it examined. However, the defendant fails to show
claims to be the facts. the original and only presented a photocopy that is not
clear. If that is the case, the plaintiff is deemed to not have
Exceptions: The requirement of an oath does not apply admitted the genuineness and due execution of the
when: document.
1. The adverse party does not appear to be a party
to the instrument F. Specific Denial
2. Compliance with an order for an inspection of the
original instrument is refused SECTION 10. Specific Denial. — A defendant must
specify each material allegation of fact the truth of which
Monte: You have to deny the actionable document under he or she does not admit and, whenever practicable, shall
oath. Otherwise, if you do not deny under oath, you are set forth the substance of the matters upon which he or
deemed to have admitted the genuineness and due she relies to support his or her denial. Where a defendant
execution of the actionable document. desires to deny only a part of an averment, he or she shall
specify so much of it as is true and material and shall deny
E. Effect of failure to deny under oath an actionable only the remainder. Where a defendant is without
document knowledge or information sufficient to form a belief as to
the truth of a material averment made to the complaint, he
The genuineness and due execution of the actionable or she shall so state, and this shall have the effect of a
document is deemed admitted. (Section 8, Rule 8) denial.
Three ways to make a specific denial
Monte: if you do not deny under oath, you are deemed (1) By specifically denying the averment and,
to have admitted the genuineness and due execution whenever possible, setting forth the substance of
of the instrument – not necessarily the entire content of the matters relied upon for such denial;
the document but only as to its genuineness and due
execution. Meaning, you could no longer contend that the Example: Paragraph 3 of the complaint is
document is fake or aver that the signature in the specifically denied, for the truth of the matter is
document is fake. xxx

Gaviola Sevilla Torres

 (2) Partial denial – He may admit a portion of the 2018 with the stipulation that defendant must finish the
averments in the complaint and specifically deny construction by May 1, 2019.
the rest and state what is the truth of what is
denied In the Answer of the defendant, he specifically denies that
he has entered into a contract with the plaintiff on May 1,
Example: Paragraph 5 of the complaint is 2018 and denies they agreed to finish the construction on
admitted insofar as the allegation made by the May 1, 2019. IOW, she just copied the whole paragraph
plaintiff on xxx but we specifically deny the rest of and just added the word “I denied”. It is tantamount to an
the allegation, particularly on the allegations of admission because if you say that you deny having
xxx for the truth of the matter is xxx entered into a contract on May 1, 2018, it is possible that
you have entered the same on a different date. She also
(3) By an allegation of lack of knowledge or denied that the contract should be finished on May 1,
information sufficient to form a belief as to the 2019, so it is possible that the same shall be finished on
truth of the averment in the opposing party’s a different date. That is tantamount to an admission.

Monte: This is a common denial. G. Allegations not specifically denied deemed

For example: Paragraph 8 is denied for lack of admitted
knowledge or information sufficient to form a
belief as to the truth or falsity thereof xxx General Rule: Allegations no specifically denied are
deemed admitted
IOW, you are denying because you do not know
what the other is saying. There is a lack of Exceptions:
knowledge or information. (1) Allegations as to amount of damages
(2) Allegations which are immaterial to the cause of
Effect of failure to specifically deny material action
averments in the complaint (3) Allegation in the complaint where no answer has
been filed by the defendant
SECTION 11. Allegations Not Specifically Denied
Deemed Admitted. — Material averments in a pleading H. Affirmative Defenses
asserting a claim or claims, other than those as to the
amount of unliquidated damages, shall be deemed SECTION 12. Affirmative Defenses. —
admitted when not specifically denied. (a) A defendant shall raise his or her affirmative
defenses in his or her answer, which shall be limited to
Effect of failure to specifically deny material averments in the reasons set forth under Section 5 (b), Rule 6, and
the complaint is that said averment are deemed the following grounds:
admitted, except: 1. That the court has no jurisdiction over the person of
(a) Amount of unliquidated damages the defending party;
(b) Immaterial averments 2. That venue is improperly laid;
(c) Conclusion of facts or law 3. That the plaintiff has no legal capacity to sue;
4. That the pleading asserting the claim states no cause
WARNER BARNES & CO. VS REYES ET AL 103 PHIL of action; and
662 5. That a condition precedent for filing the claim has not
Denial based on lack of knowledge or information been complied with.
sufficient to form a belief (general denial) on the content
of a document which is actually in the possession of the (b) Failure to raise the affirmative defenses at the
defendant is tantamount to an admission. earliest opportunity shall constitute a waiver thereof.

Monte: When the defendant denies the existence of a (c) The court shall motu proprio resolve the above
document and that document is in his possession, it is affirmative defenses within thirty (30) calendar days
considered as an admission. from the filing of the answer.

Negative Pregnant (d) As to the other affirmative defenses under the first
paragraph of Section 5 (b), Rule 6, the court may
A negative pregnant is a form of denial which at the conduct a summary hearing within fifteen (15) calendar
same time involves an affirmative implication favorable to days from the filing of the answer. Such affirmative
the opposing party. It is tantamount to an admission. defenses shall be resolved by the court within thirty (30)
calendar days from the termination of the summary
Monte: For example, plaintiff enters into a contract with hearing.
the defendant for the construction of his house on May 1,

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(e) Affirmative defenses, if denied, shall not be the Answer and the same shall be resolved within 30 days
subject of a motion for reconsideration or petition from the termination of the summary hearing.
for certiorari, prohibition or mandamus, but may be
among the matters to be raised on appeal after a What are these affirmative defenses under the first
judgment on the merits paragraph of Section 5 (b) Rule 6?
These are the affirmative defenses I mentioned earlier
Aside from the affirmative defenses under Section 5 of that can also be used as a ground for a motion to dismiss,
Rule 6, the following can also be raised as affirmative namely:
defenses: 1. Lack of jurisdiction over the subject matter of
(a) Lack of jurisdiction over the person the claim
(b) Venue is improperly laid 2. That there is another action pending between the
(c) Plaintiff has no legal capacity to sue same parties for the same cause – litis
(d) Pleading states no cause of action pendentia
(e) Failure to comply with condition precedent to the 3. That the cause of action is barred by a prior
filing of the case judgment or by the statute of limitations – res
Note: These are grounds under Rule 16 in the former judicata
rules which has already been removed by the
Amendments. If you raise these as an affirmative defense, the court may
conduct a summary hearing within 15 days from the filing
Monte: What are these affirmative defenses under of your Answer and the court shall resolve this within 30
Section 5 of Rule 6? days from the termination of the summary hearing.
1. Fraud
2. Statute of Limitations Author’s Note: The grounds enumerated by Dean Monti
3. Release are found in the 2nd paragraph of Sec 5 (b), Rule 6. While
4. Payment the affirmative defenses found in the 1st paragraph of
5. Illegality Section 5 (b) Rule 6 are the following: (1) Fraud; (2)
6. Statute of Frauds Statute of Limitations; (3) Release; (4) Payment; (5)
7. Estoppel Illegality; (6) Statute of Frauds; (7) Estoppel; (8) Former
8. Former recovery recovery; (9) Discharge in Bankruptcy; and (10) other
9. Discharge in Bankruptcy matters by way of confession or avoidance. For
10. Other matter by way of confession or avoidance comparison, please refer to the table below:

Failure to raise the above affirmative defenses at the Sec 5 (b) Rule 6 Sec 5 (b) Rule Sec 12 (a)
1st paragraph 6 Rule 8
earliest opportunity constitutes a waiver. 2nd paragraph
1. Fraud 1. Lack of 1. Lack of
The court shall motu proprio resolve the above affirmative 2. Statute of jurisdiction jurisdiction
defenses within 30 days from the filing of the answer. Limitations over the over the
3. Release subject person
As to the affirmative defenses under the first paragraph 4. Payment matter 2. Venue is
5. Illegality 2. Litis improperly
Affirmative Defenses

of Section 5 (b), Rule 6, the court may conduct a 6. Statute of pendentia laid
summary hearing within 15 days from the filing of the Frauds 3. Res 3. Plaintiff has
Answer and the same shall be resolved within 30 days 7. Estoppel judicata no legal
from the termination of the summary hearing. 8. Former capacity to
recovery sue
Monte: If you raise the grounds enumerated in Section 12 9. Discharge 4. Pleading
paragraph (a) as an affirmative defense, the court can in states no
decide on these right away without conducting a Bankruptcy cause of
hearing, motu proprio! Unlike in the Old Rules, when 10. Other action
matter by 5. Failure to
you raise these as affirmative defenses, you can ask the way of comply with
court of a preliminary hearing of your affirmative defenses confession condition
– before the start of the trial proper because this is in the or precedent
nature of a motion to dismiss. In the New Rules, there is avoidance to the filing
of the case
no need of a hearing anymore because the court is
mandated to resolve or decided on your affirmative
defenses within 30 days from the filing of your
Answer without any hearing.

However, as to the affirmative defenses under the first

paragraph of Section 5 (b), Rule 6, the court may conduct
a summary hearing within 15 days from the filing of the

Gaviola Sevilla Torres

 The court may Note: During the The court must
conduct a lecture, Dean motu proprio
summary Monti mentioned resolve these
hearing within the grounds as affirmative
15 days from the under defenses within
filing of the Paragraph 1 of 30 calendar
Answer. Such Section 5 (b), days from the
Hearing

affirmative Rule 6. Needs filing of the

defense shall be clarification. Answer
resolved by the (Section 12 (c),
court within 30 Rule 8)
days from the
termination of
the summary
hearing.
(Section 12 (d),
Rule 8)

UP BOC’s (2020) Opinion: Curiously, the Amended

Rules do not provide a time for which the court must act
on the grounds in the 2nd paragraph of Sec 5 (b), Rule 6
when they are alleged as affirmative defenses in the
answer. Section 12, Rule 8 merely provides for a period
for the affirmative defenses listed in the first paragraph of
Sec. 5(b), Rule 6 and not for those listed under the 2nd
paragraph of Sec. 5 (b), Rule 6.

Effect of Denial

Affirmative defenses, if denied, shall not be the subject

of a motion for reconsideration or petition for
certiorari, prohibition or mandamus, but may be
among the matters to be raised on appeal after
judgment on the merit. (Section 12 (e), Rule 6 – 2019
Amendment)

Striking Out of Pleading or Matter Contained Therein

SECTION 13. 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) calendar days after the
service of the pleading upon him or her, 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|||

Striking out of pleading or matter contained therein must

be done upon motion before responding to a pleading or
within 20 days from receipt of the pleading.

Gaviola Sevilla Torres

 RULE 9 So, what happens now is that these grounds for a motion
EFFECT OF FAILURE TO PLEAD to dismiss are now considered objections, which you can
raise in your answer by way of a special affirmative
Monte: This Rule deals with the declaration of default. defense. If you failed to raise them, then they are deemed
waived.
Sec. 1. Defenses and Objections Not Pleaded
However, there are objections or defenses that are not
SECTION 1. Defenses and Objections Not Pleaded. — considered waived despite the fact that you failed to raise
Defenses and objections not pleaded either in a motion to them in your answer or by way of a motion to dismiss.
dismiss or in the answer are deemed waived. However,
when it appears from the pleadings or the evidence on Defenses and Objections Not Deemed Waived by
record that the court has no jurisdiction over the subject Failure to Raise in Answer/MTD
matter, that there is another action pending between the
same parties for the same cause, or that the action is What are these objections that are not deemed
barred by a prior judgment or by statute of limitations, the waived?
court shall dismiss the claim. (1) A: There are four:
1) Lack of jurisdiction over the subject matter;
What is the effect if you failed to answer the 2) Litis pendentia;
complaint? 3) Res judicata; and
A: Now, the first section deals with the effect of failure to 4) Prescription of action.
plead the necessary defenses and available objections.
Monte: As I have said in my previous lecture, that if these
According to this rule, if you failed to plead the defenses four grounds for objection are present in the complaint
and objections available to you, then these defenses and filed, and it is noticed by the court, the court, by its own
objections are deemed waived. volition, can dismiss the case outright. In other words, the
court can motu propio dismiss the case if it finds that it
Now, what are these defenses? does not have jurisdiction over the subject matter. Or, if
A: We have already discussed what are these defenses the court finds there is litis pendentia, res judicata, or if the
available to you. Like: action has already prescribed.
1) Special affirmative defenses
2) Defense of fraud Sec. 2. Compulsory Counterclaim or Cross-Claim
3) Illegality of contract Not Set Up is Barred
4) The contract is unenforceable under the Statute
of Frauds SECTION 2. Compulsory Counterclaim, or Cross-
Claim, Not Set Up Barred. — A compulsory
Monte: And these are the grounds for a motion to dismiss counterclaim, or a cross-claim, not set up shall be barred.
under the old Rules, under Rule 16 of the old Rules. There (2)
are ten grounds for objections, like:
1) Lack of jurisdiction over the subject matter; Monte: If you have a compulsory counterclaim, or a
2) Lack of jurisdiction over the person of the cross-claim against your co-defendant, you have to raise
defendant; that in your answer. Otherwise, if you do not set that up,
3) Lack of legal capacity to sue; they are also considered barred or waived.
4) Improper venue;
5) Litis pendentia; Compulsory Counterclaim vs. Permissive
6) Res judicata; Counterclaim
7) Prescription;
8) Failure to state a cause of action; Monte: It must be a compulsory counterclaim, and not a
9) The claim has already been waived, abandoned permissive counterclaim because in a permissive
or paid; and counterclaim, you can always file that anytime as an
10) That the claim is unenforceable under the Statute independent action separate from the complaint that you
of Frauds; and the last is filed.
11) Failure to comply with the condition precedent to
the filing of an action in court. But if your counterclaim is compulsory, you have to set
that up in your answer, otherwise, it is deemed barred.
Now, these are grounds for a motion to dismiss under the
old Rules. But as I have said, the Rule on Motion to
Dismiss, Rule 16 of the old Rules, has already been
removed or deleted from the amendment introduced last
year.

Gaviola Sevilla Torres

 Sec. 3. Declaration of Default When Defendant May Be Declared in Default

Monte: Under the Rules, once you receive your

complaint, which is usually served to you together with the
summons by the sheriff, you have a certain period to
answer. You had 15 days to answer under the old Rules.
Now, under the amendment, you now have 30 days to
answer. Take note of that.

So, you have 30 days to answer. What happens when

you fail to answer within the reglementary period of
30 days?
A: The answer is that you may be declared in default.

Why do I say you “may” be? Why do I use the word

“may”?
A: Because declaration of default is not automatic. It
requires a motion to be filed by the plaintiff.

Monte: So, if the period for the defendant to file an answer

expires, and no answer was filed by him, it is incumbent
upon the plaintiff to move that the defendant be declared
in default. The court cannot motu propio declare the
defendant in default.

So, if the plaintiff did not file a motion to declare the

defendant in default, despite the lapse of the
reglementary period to file the answer, and the defendant
immediately filed his answer, the court is bound to accept
the answer of the defendant. This is because the
defendant has not been declared in default. So, the
answer may still be accepted by the court. So, there must
be a motion filed to that effect.

And when the plaintiff files a motion – ah, that’s why when
the sheriff will serve summons to the defendant together
with the complaint, the sheriff will make a return of
service of summons to the court. And the sheriff must
furnish a copy of his return to the lawyer of the plaintiff so
that the lawyer of the plaintiff will know when the
defendant received the summons, so that he can start
counting the 30-day period.

So, after the lapse of the 30-day period and there is no

answer filed by the defendant, he can immediately file a
motion to declare the defendant in default.

Effect of Declaration of Default

Monte: Now, when the plaintiff files motion to declare the

defendant in default, the plaintiff must still have to furnish
a copy of his motion to the defendant. So, even if the
defendant did not file his answer, he is still entitled to
notices from the time the plaintiff filed a motion to declare
defendant in default, and up to the time the court decides
Monte: Now, let’s go to the effect of your failure to the case. So, even during the pendency of the
answer. proceedings to declare him in default, the defendant is
entitled to subsequent notices. But, although he is notified

Gaviola Sevilla Torres

of the motion to declare him in default, he cannot So, when a motion to declare a defendant in default is
participate in the ex-parte hearing. filed, the court will issue you an order of default. And
after that, the court may right away decide and render
Because when the plaintiff now files a motion to judgment by default. Or if not, the court will require the
declare him in default, what will be the effect of that? plaintiff to present his evidence ex parte, and thereafter,
A: The court may right away decide the case on the basis render judgment by default.
of the pleading filed by the plaintiff. And there’s only one
pleading filed by the plaintiff here. So, the court can right SUMMARY OF EFFECT OF DECLARATION OF
away decide on the basis of the complaint. There is no DEFAULT
need for the court to conduct a hearing. The court may either (1) render a judgment by default
based on the complaint of the plaintiff; or (2) render
But if the court feels that there is a need to have a hearing judgment by default after requiring the plaintiff to present
because the issue is quite complicated, and he wants to evidence ex parte. The defendant shall still be notified of
see the evidence of the plaintiff, then it is within the the proceedings subsequent to the declaration of his
discretion of the court to require the plaintiff to present default, but he can no longer participate in said
evidence ex parte1. So, it’s up to the court. proceedings.

Monte: Now, normally, if the case is very simple, like it is Order of Default vs. Judgment by Default
a case for the collection of a sum of money – plaintiff
claimed that defendant borrowed money from him, and Monte: Now, order of default is different from judgment
the defendant failed pay him, and the plaintiff attached the by default, you have to take note of that.
promissory note signed by the defendant and it’s very
clear that the defendant is indebted to the plaintiff. And The order of default is issued by the court once a motion
that’s the reason why the defendant did not answer the to declare defendant in default is filed, and the court is
plaintiff because he has nothing to answer. So, if the case convinced that the defendant is duly notified, but the
is like that, the court can immediately decide the case on defendant failed to answer within the reglementary period.
the basis of the complaint. There is no longer any need So, the court will issue an Order of Default, and require
for him to require the plaintiff to explain because it’s the plaintiff to present evidence ex parte. After that, the
obvious that there was an obligation on the part of the court will render judgment by default.
defendant, and the defendant did not pay his obligation.
Monte: Now, when the court issues an order of default, it
But if the case is a little bit more complicated, it would be is not appealable because it is merely an interlocutory
the safe thing for the court to require the defendant to order. You cannot appeal that. Okay? But the judgment of
present his evidence ex parte. I say ex parte because default is appealable because it is already the final
here, the defendant could no longer participate in the trial, judgment of the court. That’s the difference between an
in the ex parte hearing. He may attend, but he may not Order of Default and a judgment by default.
speak. Because once the defendant is declared in default,
he loses his standing in the court. Relief Available to the Defendant in Default

But, under the new Rules, he must be notified still. This is Monte: When the defendant is declared in default, and he
better than the old Rules – the 1965 Rules – because in has a justifiable reason why he failed to file his answer,
the previous Rules, when the defendant did not answer he may file a motion to lift or set aside the order of
the complaint within the reglementary period, the plaintiff default. And the ground that he can use is FAME.
may file a motion to declare him in default and the plaintiff
need not notify the defendant about the motion. Because, And what is FAME?
according to the old Rules, his failure to file the answer A:
within the reglementary period caused him to lose his 1) Fraud
standing right away. But here, under the 1997 Rules, they 2) Accident
feel that it’s very very harsh not to notify the defendant 3) Mistake
anymore because he automatically lost his standing in 4) Excusable negligence
court. So, the 1997 Rules provides that he should be
notified. But he cannot participate in the proceeding. He Monte: So, the defendant, when he files a motion to lift
can attend, he can listen to the presentation of evidence, the order of default, the defendant can say, “I was not able
but he cannot object. That is the effect once the defendant to answer within the reglementary period because of
is declared in default. fraud, accident, mistake and excusable negligence.”

Gaviola Sevilla Torres

And the motion to set aside the order of default must be Effect of Lack of Affidavit of Merit
under oath or verified by the defendant, and most
important, it must contain an affidavit of merit attached Monte: If your motion to lift order of default is not
to it. accompanied by an affidavit of merit, your motion will not
be acted upon by the court, or it will be treated as a pro
What is an affidavit of merit? forma motion.
A: It is an affidavit executed by the defendant explaining
not only the reason why he was not able to answer within A motion that fails to comply with the requirements under
the reglementary period, but it will also state that if only the Rules will be treated as a pro forma motion. And a pro
the court will allow him to answer and lift or set aside the forma motion does not toll the running of the reglementary
order of default, he has a very good and meritorious period to avail of that particular remedy.
defense.
SUMMARY OF RELIEFS OF DEFENDANT IN
Monte: The reason for that affidavit of merit is so that the DEFAULT
court can apprise if it will allow the lifting of the order of GROUND REMEDY
default. If the defendant cannot show that he has a good FAME: File a motion to lift order
defense, why will the court order lift the order of default? 1) Fraud of default.
Maglangan-langan lang ang defendant. In other words, 2) Accident
the purpose of the defendant in filing a motion to lift the 3) Mistake Requirements:
order of default is only to delay the proceedings, diba? 4) Excusable 1) It must be verified
Kay wa man diay siyay gwapo nga depensa. He does not Negligence under oath by the
have a justifiable ground to defeat the claim of the plaintiff. defendant;
2) It must be
So, okay, he will file a motion to lift the order of default, accompanied by an
verified under oath and it must be accompanied by affidavit of merit
affidavit of merit. except when the
reason he was in
But if the reason why he was not able to answer is not default was that he
because of FAME, but because he has not received the did not actually
summons yet – he really did not receive the summons, receive the summons
the sheriff did not serve the summons to him but to
another person who has the same name as the There was no actual Go to the higher court on
defendant, then the affidavit of merit is not required. receipt of summons, but certiorari under Rule 65,
the court dismissed the because of grave abuse
Because if the summons was not served on the motion to lift order of of discretion amounting to
defendant, for which reason the defendant was not able default lack or excess of
to file his answer within the reglementary period, then we jurisdiction.
can say that the court has not yet acquired jurisdiction
over the person of the defendant. Note: Since summons
were not served on the
And so, if the court will deny the motion of the defendant, the court did
defendant to lift the order of default on the ground not actually acquire
that he has not yet received the summons, when that jurisdiction over his
court has not acquired jurisdiction over his person, person.
what is the remedy of the defendant?
A: The defendant can immediately go to the higher court Partial Default
by way of certiorari under Rule 65. Why? Because that
constitutes grave abuse of discretion amounting to lack or What is partial default?
excess of jurisdiction. A: Partial default occurs when there are several
defendants, some of whom filed their answer while others
Monte: So, there is lack of jurisdiction. The court cannot did not file their answers. So, those who did not file their
proceed with the hearing of the case because it has not answers can be declared in default, while those who filed
yet acquired jurisdiction over the person of the defendant. their answer will have the opportunity to oppose the claim
That’s the remedy of the defendant. of the plaintiff.

Gaviola Sevilla Torres

And what is the rule on partial default? Monte: The court cannot award unliquidated damages.
A: The rule is that if there is partial default, those And you know what are unliquidated damages. Like moral
defendant/s who did not answer can be benefited by the damages – wounded feelings, sleepless nights – the court
defense raised by the answering defendant/s. can only award liquidated damages, or those that are
already determinable at the time of the filing of the case.
Monte: This is because they are sued in solidum. This
means there’s a common cause of action against them. Unliquidated Damages
So, if the answering defendant/s succeed or win the case, Are damages that are subject to proof during the trial of
then the non-answering defendant/s also win the case. the case.

And what happens – there was this one case, I think it Liquidated Damages
was Lim Tanhu vs. Ramolete. (Note: Not in slide, but Are damages that are already determinable at the time of
discussed.) the filing of the case.

LIM TANHU VS. RAMOLETE Monte: Some authors argue that this is quite unfair.
G.R. No. L-40098, August 29, 1975 Pabor ni sa mga maru na defendant. Because if I’m the
defendant, and the claim against me is very strong – I’m
Monte: There were two defendants, one filed his answer going to lose the case – but the biggest claim is for moral
and the other one did not answer. And when the plaintiff damages, for the sleepless nights, wounded feelings and
noticed that the answer of the answering defendant was serious anxiety of the plaintiff, the actual damage or
quite strong, he decided to drop the case against the liquidated damage is very very small, I might just not
answering defendant and only proceeded against the answer and just have myself declared in default. Because
non-answering defendant, who was already declared in once I am declared in default, okay, the plaintiff wins the
default. case but he cannot recover moral damages because that
is unliquidated damages, and the court cannot award it.
Can he do that? The SC said, “No. Because there is a And so that’s why they say that’s very unfair.
common cause of action, if he will drop the answering
defendant, then he must also drop the case against the When Default is Not Allowed
defaulted defendant.”
Now, there are some cases where default is not
Dili na mahimo kay minaro na. You know what is in the allowed. In what cases is default not allowed?
mind of the plaintiff. He said, “Okay, I’ll drop the answering A: Annulment of marriage, declaration of nullity of
defendant, I’ll proceed against the non-answering marriage or legal separation, because these are cases
defendant who was already declared in default. Because that also cannot be compromised.
it’s easier to prove my case! I will present my evidence ex
parte.” Unya di naman siya (defaulted defendant), di Monte: So, when the case is a case for the annulment of
naman siya kasukol kay he already lost his standing in the marriage, the court will order the Solicitor General to enter
court. So, sayun kaayo niya (plaintiff), makapatuyang siya his appearance for and in behalf of the State, and to
sa iyang ebidensya, diba? determine whether or not there is collusion between the
parties. Normally, the SolGen will delegate it to the fiscal
So, the SC said, “You cannot do that. Since they are sued in that place, because they cannot cover the whole
under a common cause of action, they are sued in country. There are only about a hundred lawyers in the
solidum, then the dismissal of the case against the office of the SolGen, and about a thousand RTCs, not to
answering defendant should also result to the dismissal mention the MTCs. So, they cannot attend to all these
of the case against the defaulted defendant.” cases. The purpose of the intervention of the SolGen or
the fiscal is to protect or save the marriage.
SUMMARY OF PARTIAL DEFAULT
The non-answering/defaulted defendant can benefit from
the defense of the answering defendant if they were sued
under a common cause of action or in solidum.

Extent of Relief to be Awarded −

So, what is the extent of relief that the court can award
in case the defendant has already been declared in
default?
A: The Rules provide that the court can only award the
relief stated in the complaint and proven by the plaintiff.

Gaviola Sevilla Torres

 RULE 10
AMENDED AND SUPPLEMENTAL PELADINGS

Sec. 1. Amendments in General

SECTION 1. Amendments in General. — Pleadings

may be amended by adding or striking out an allegation
or the name of any party, or by correcting a mistake in the
1) When can the defendant be declared in default? name of a party or a mistaken or inadequate allegation or
➢ When, within the 30-day reglementary period after description in any other respect, so that the actual merits
receipt of summons and a copy of the complaint, the of the controversy may speedily be determined, without
defendant fails to file an answer. regard to technicalities, in the most expeditious and
inexpensive manner. (1a)
2) What is the effect of being declared in default?
➢ The defendant loses his standing in court, and thus How Amendments Are Made
he can no longer participate in proceedings;
➢ However, the defendant is still entitled to notice of the Amendments and supplemental pleadings refer to
proceedings subsequent to being declared in default; changes on the original pleading filed.
➢ The court can either:
a. Decide the case right away on the basis of the How is amendment made?
plaintiff’s complaint (in simple cases); or A: Amendment consists of the correction of some
b. Require the plaintiff to submit evidence ex parte allegations in the pleading that you filed.
before making a judgment by default.
Monte: Like for example you filed a complaint. You
3) What are the reliefs available to the defendant in noticed that there are allegations there that are missing,
default? you can add or subtract allegations in the original pleading
➢ If he was defaulted on the ground of FAME, then he that you filed. You can do it by way of an amendment.
can file a motion to lift the order of default, which must
be verified or under oath and accompanied by an How to Amend Pleadings
affidavit of merit; 1) Adding an allegation;
o No affidavit of merit is required if the 2) Adding the name of any party;
defendant did not actually receive the 3) Striking out an allegation;
summons of the court and a copy of the 4) Striking out the name of any party;
complaint; 5) Correcting a mistake in the name of a party; or
➢ If, despite not receiving a copy of the summons and 6) Correcting a mistaken or inadequate allegation or
complaint, the court dismisses the defendant’s motion description in any other respect.
to lift the order of default, then the defendant can go
to the higher court under Rule 65 Purpose
So that the actual merits of the controversy may speedily
4) What is the rule on partial default? be determined, without regard to technicalities, and in the
➢ The non-answering/defaulted defendant can benefit most expeditious and inexpensive manner.
from the defense of the answering defendant if they
were sued under a common cause of action or in The courts should be liberal in allowing amendments to
solidum. pleadings to avoid a multiplicity of suits and in order that
the real controversies between the parties are presented,
5) What is the extent of relief that the court can their rights determined, and the case decided on the
reward when the defendant is in default? merits without unnecessary delay [Tiu v. Phil. Bank of
➢ The court can only grant the reliefs stated in the Communication, G.R. No. 151932 (2009)]
complaint which are proven by the plaintiff.
➢ The court can only grant liquidated damages, and not As a general policy, liberality in allowing amendments is
unliquidated damages. greatest in the early stages of a law suit, decreases as it
progresses and changes at times to a strictness
amounting to a prohibition. This is further restricted by the
condition that the amendment should not prejudice the
adverse party or place him at a disadvantage [Barfel
Development v. CA, G.R. No. 98177 (1993)]

Gaviola Sevilla Torres

How to file amended pleadings Formal vs. Substantial Amendment
When any pleading is amended, a new copy of the entire
pleading, incorporating the amendments, which shall be Now, once there is already an answer filed by the
indicated by appropriate marks, shall be filed [Sec.7., defendant, the plaintiff can no longer amend his complaint
Rule 10] without the permission of the court. That is if his
amendment is a substantial amendment. Substantial
Source: UP BOC 2019, Remedial Law amendment cannot be done anymore by the plaintiff once
the defendant has already filed his answer. He can do
Types of Amendments that, but it must be with leave of court.

Two kinds of amendments: So, he must file a motion for leave of court to amend his
(1) Amendment as a matter of right; or complaint, and he will attach to his motion the proposed
(2) Amendment as a matter of judicial discretion. amended complaint.

Secs. 2-4. Amendment as a Matter of Right and as a Now, take note that amendment is a matter of right if
Matter of Judicial Discretion; Formal Amendment there is yet no responsive pleading. But what if
instead of filing an answer, the defendant filed a
SECTION 2. Amendments as a Matter of Right. — A motion to dismiss (MTD)? Is an MTD a responsive
party may amend his pleading once as a matter of right at pleading?
any time before a responsive pleading is served or, in the A: No.
case of a reply, at any time within ten (10) calendar days
after it is served. (2a) So, can the plaintiff amend his complaint as a matter
of right?
SECTION 3. Amendments by Leave of Court. — A: Yes, the plaintiff can still amend his complaint as a
Except as provided in the next preceding Section, matter of right because a MTD is not considered a
substantial amendments may be made only upon leave of responsive pleading.
court. But such leave shall be refused if it appears to the
court that the motion was made with intent to delay or Now, when there is already an answer, yes, you must ask
confer jurisdiction on the court, or the pleading stated no permission of the court, it’s no longer a matter of right but
cause of action from the beginning which could be a matter of judicial discretion EXCEPT if your amendment
amended. Orders of the court upon the matters provided is a mere formal amendment.
in this Section shall be made upon motion filed in court,
and after notice to the adverse party, and an opportunity SECTION 4. Formal Amendments. — A defect in the
to be heard. (3a) designation of the parties and other clearly clerical or
typographical errors may be summarily corrected by the
When is amendment a matter of right? court at any stage of the action, at its initiative or on
A: Rule 10 provides that amendment is a matter of right motion, provided no prejudice is caused thereby to the
before the defendant files his responsive pleading (his adverse party.
answer).
Formal amendment refers to the amendment of the
Monte: In other words, before the defendant files his pleading in order to correct some clerical or typographical
answer, like now, the defendant has 30 days to file his errors, or some statements that are harmless and
answer. innocuous – it will not affect the right of the defendant.

Plaintiff files a complaint. Summons and a copy of the In fact, formal amendment can be made through the
complaint was served on the defendant. Defendant has court’s own volition, even without the plaintiff’s volition. If
30 days to answer the complaint. Within the period that the court finds that there are clerical or typographical
defendant has to answer, plaintiff discovered that there error, it can order for the correction of these without leave
are important matters that he failed to include in his of court. But when there is a substantial amendment, then
complaint. And he wants it to be included. What will the leave of court is required.
plaintiff do?
Amendments by Leave of Court
The plaintiff can immediately amend his complaint. And
since the defendant has not yet filed his answer, the Substantial amendments may only be made upon leave
amendment here is a matter of right. Meaning, the plaintiff of court.
need not ask the permission of the court in order for him
to amend his complaint. He can immediately file an
amended complaint, and furnish a copy thereof to the
defendant.

Gaviola Sevilla Torres

Requisites: 1997 Rules 2019 Amendment
1) Motion for leave of court, accompanied by the When issues not raised When issues not raised
amended pleading sought to be admitted (Sec. 9, by the pleadings are tried by the pleadings are tried
Rule 15); with the express or with the express or
2) Notice is given to the adverse party; and implied consent of the implied consent of the
3) Parties are given the opportunity to be heard. (Sec. 3, parties, they shall be parties, they shall be
Rule 10) treated in all respects as treated in all respects as
if they had been raised in if they had been raised in
Source: UP BOC, Remedial Law Review the pleadings. the pleadings. No
Amendment may be amendment of such
When Amendment Must Be Denied necessary to conform pleadings deemed
to evidence. amended is necessary
1) When amendment is to delay the action; to cause them to
conform to the
2) When amendment is for the purposes of making the evidence.
complaint confer jurisdiction upon the court; or
− Monte: In other words, it is clear that in the Monte: So, under the amendment, dili na kailangan i-
original complaint filed, the court did not have amendar ang pleading. The court can already consider it
jurisdiction over the subject matter of the case. as one of the issues in the case even if it was not raised
So, gidali-dali dayun ug amendar sa plaintiff to in the pleadings of the parties, and it was not included in
insert allegations that will confer jurisdiction of the the issues in the pre-trial conference. So, that is one of
court, the court should deny that kind of the innovations introduced by the 2019 Amendments to
amendment. the Rules on Civil Procedure.

3) When the pleading states no cause of action from Sec. 6. Supplemental Pleading
the beginning, and the amendment is for the purpose
of curing it. SECTION 6. Supplemental Pleadings. — Upon motion
of a party, the court may, upon reasonable notice and
Sec. 5. Exceptions to the Rule that Defenses Not upon such terms as are just, permit him or her to serve a
Raised are Deemed Waived supplemental pleading setting forth transactions,
occurrences or events which have happened since the
SECTION 5. No Amendment Necessary to Conform to date of the pleading sought to be supplemented. The
or Authorize Presentation of Evidence. — When issues adverse party may plead thereto within ten (10) calendar
not raised by the pleadings are tried with the express or days from notice of the order admitting the supplemental
implied consent of the parties, they shall be treated in all pleading. (6a)
respects as if they had been raised in the pleadings. No
amendment of such pleadings deemed amended is What is a supplemental pleading?
necessary to cause them to conform to the evidence. (5a) A: A supplemental pleading will set forth transactions,
occurrences or events which have happened since the
Monte: Now, in Section 5 of the old Rules, prior to the date of the pleading sought to be supplemented. It must
present amendment, it was stated there that the court is be done upon motion of the party, with reasonable
not supposed to entertain issues not included in the notice to the other party. Once approved by the court, the
respective pleadings of the parties. adverse party may plead thereto within ten (10) days
from notice of order admitting the supplemental pleading.
But, if during the trial, one party raises an issue which
ought not to be included because it was not in the pre- Monte: Now, unlike the amended pleading, the
trial, or it was not among the issues raised in the pleadings supplemental pleading always requires leave of court.
of both parties, but the other party did not object to it and
allowed the plaintiff to prove that kind of issue, under the While, in the case of amended pleading, it can be with
old Rules, the court will allow a party to amend his leave of court or without leave of court. If there is yet no
pleading – like if it is a complaint, or if it is an answer – in responsive pleading from the defendant, it is a matter of
order to conform to the evidence already presented and right, so leave of court is not required. Leave of court is
proven in court. So, we called that “amendment to required only when there is a responsive pleading filed.
conform to evidence.” Because amendment here is no longer a matter of right,
but a matter of judicial discretion.
But now, under the 2019 Amendment, there is no need
anymore to amend.

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Now, what is the difference between a supplemental Sec. 7. How Amended Pleadings are Filed
pleading and an amended pleading?
A: SECTION 7. Filing of Amended Pleadings. — When
1) Amended pleading refers to facts existing at the any pleading is amended, a new copy of the entire
time of the commencement of the action, while pleading, incorporating the amendments, which shall be
supplemental pleading refers to facts arising after indicated by appropriate marks, shall be filed.
the filing of the original pleading;
− Monte: So in an amended pleading, the facts Sec. 8. Effect of Amended Pleading
that you want to incorporate in your amended
pleading, like amended complaint, are facts SECTION 8. Effect of Amended Pleadings. — An
that already existed at the time you filed the amended pleading supersedes the pleading that it
original complaint but which you failed to amends. However, admissions in superseded pleadings
include, maybe by oversight or negligence. may be offered in evidence against the pleader, and
You overlooked this fact, and you want this claims or defenses alleged therein not incorporated in the
now to be included in your complaint. amended pleading shall be deemed waived. (8a)
− But if the fact was not yet in existence at the
time of your complaint – there are facts that What is the effect of an amended pleading?
occurred after the complaint was filed, but A: Admission in superseded pleadings may be received
which are very important to your cause of in evidence against the pleader; and claims and defenses
action or to your defense, you can introduce alleged therein not incorporated in the amended pleading
a supplemental pleading. You ask the court shall be deemed waived.
that you be allowed to file a supplemental
pleading; Rationale: The reason why a superseded pleading may
still be received as evidence against the pleader is that
2) An amended pleading results in the withdrawal of such is the nature of a judicial admission. Despite its
the original pleading, while a supplemental being superseded and withdrawn, the admissions therein
pleading is merely in addition to, but does not are still considered “extrajudicial admissions”, and may
result in the withdrawal of the original pleading; be proved by the party relying thereon by formal offer in
− Monte: By the way, how do you make an evidence of such original pleading.
amendment? The new facts or allegations
that you inserted in your original pleading RULE 11
must be identified by underlining those facts WHEN TO FILE RESPONSIVE PLEADING
– the words or sentences that are new in your
pleading – should be properly identified by A responsive pleading is a pleading in answer to the
underlining or italicizing them, so that the pleading containing the claim of the other party. These are
other party and the court itself will examples of responsive pleadings:
immediately know that this is the portion that 1) Answer
was introduced as an amendment; 2) Answer to Counterclaim
3) Answer to Cross-claim
3) An amended pleading results can be made as a 4) Answer to Third Party Complaints
matter of right, as when no responsive pleading
has yet been filed, while supplemental pleadings A Motion to Dismiss is not a responsive pleading. Thus,
are always with the leave of court; the plaintiff can still amend his complaint as a matter of
right because there is no responsive pleading filed yet.
Amended Pleading Supplemental Pleading
Refers to facts existing at Refers to facts arising Answer to the Complaint – 30 days
the time of the after the filing of the
commencement of the original pleading SECTION 1. Answer to the Complaint. — The
action defendant shall file his or her answer to the complaint
Results in the Is merely in addition to, within thirty (30) calendar days after service of
withdrawal of the original but does not result in the summons, unless a different period is fixed by the
pleading withdrawal of the original court. (1a)
pleading
Can be made as a Are always with the • When to file: 30 days (2019 Amendment) counted
matter of right leave of court from the time he received the summons and the
complaint.
• Rule: Exclude the first day and include the last

Gaviola Sevilla Torres

• Effect of interruption: If there is an interruption • If filed not a matter of right – 15 days. The period
(such as the filing of a Motion to Dismiss or a Bill of is shorter. In this kind of amendment, leave of court is
Particulars), it will interrupt the running of the required. The Plaintiff must file a motion for leave of
reglementary period to answer. It tolls the running of court, attaching his proposed amendment to the
the period. If the Motion to Dismiss is denied or Bill of motion, subject to the approval of the court. Here, the
Particulars is granted, the period to answer will defendant has already enough time to read and study
continue. the proposed amended complaint. By the time the
court will grant the motion for leave of court, the
Note: The Rules allow for a motion to extend time to defendant has had enough time to read and prepare.
file an answer, as long as it is for meritorious reasons. The 15-day period will start to run from receipt of the
Such may only be availed of by the defendant once and order of the court granting the motion for leave of
may not exceed 30 calendar days. court to amend the complaint. When you receive the
-UP BOC Remedial Law 2020, p. 66 proposed amended complaint which is attached to
the motion for leave of court, do not answer right
Period to Answer for Defendant Foreign Corporation away! For all you know, the court may not grant the
motion for leave to amend the complaint. Wait for the
SECTION 2. Answer of a Defendant Foreign Private order of the court granting the motion.
Juridical Entity. — Where the defendant is a foreign
private juridical entity and service of summons is made Answer to Counterclaim or Cross-Claim – 20 days
on the government official designated by law to receive
the same, the answer shall be filed within sixty (60) SECTION 4. Answer to Counterclaim or Cross-
calendar days after receipt of summons by such entity. Claim. — A counterclaim or cross-claim must be
(2a) answered within twenty (20) calendar days from
service. (4a)
Within 60 calendar days. If the defendant is a foreign
corporation and the summons were served through the Your period to answer is only 20 days from receipt of the
government agency which has control over the nature of counterclaim or cross-claim.
the business of the corporation, the period to answer is 60
days. Answer to Third-Party (4th) Complaint – 30 days

If the corporation is a bank, the summons may be served SECTION 5. Answer to Third (Fourth, etc.)-Party
through the governor of the Central Bank. If the Complaint. — The time to answer a third (fourth, etc.)-
corporation is an insurance company, the summons may party complaint shall be governed by the same rule as
be coursed through the insurance commissioner. the answer to the complaint. (5)
Depending on the nature of the business, the court may
serve the summons through the appropriate government Your Answer should be filed within 30 days, similar to your
agency. answer to the original complaint because a third-party
complaint is in the nature of an original action. Like an
Answer to Amended Complaint original action of a defendant against a third-party
defendant.
SECTION 3. Answer to Amended Complaint. —
When the plaintiff files an amended complaint as a A third-party complaint requires leave of court. So a
matter of right, the defendant shall answer the same defendant, before he can file such complaint, must file a
within thirty (30) calendar days after being served with motion for leave of court to file a third-party complaint. The
a copy thereof. third-party defendant will not also file his Answer right
away even if he already has a copy of the complaint. He
Where its filing is not a matter of right, the defendant must wait for the court to approve the motion for leave to
shall answer the amended complaint within fifteen (15) file a third-party complaint. Once the court grants it, the
calendar days from notice of the order admitting the defendant has 30 days to file his Answer to the third-party
same. An answer earlier filed may serve as the answer complaint.
to the amended complaint if no new answer is filed. Reply – 15 days
This Rule shall apply to the answer to an amended
counterclaim, amended cross-claim, amended third SECTION 6. Reply. — A reply, if allowed under Section
(fourth, etc.)-party complaint, and amended complaint- 10, Rule 6 hereof, may be filed within fifteen (15)
in-intervention. (3a) calendar days from service of the pleading responded
to. (6a)
It depends on the kind of amendment:
• If filed as a matter of right – 30 days from the receipt The period to file a reply is only 15 days. The filing of a
of the copy of the amended complaint. reply is not mandatory except if there is an actionable

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document. If there are new matters raised in the answer Exceptions:
of the defendant, the plaintiff is already deemed to have 1. Omitted Counterclaim or Cross-claim - When a
denied or controverted those matters. But if there is an pleader fails to set up a counterclaim or cross-claim
actionable document, he must file a reply and he has only through oversight, inadvertence, or excusable neglect,
15 days to file a reply to the defendant’s answer. or when justice requires, he may, by leave of court, set
up the counterclaim or cross-claim by amendment
Answer to Supplemental Complaint – 20 days before judgment. [Sec. 10, Rule 11]

SECTION 7. Answer to Supplemental Complaint. — 2. Counterclaim or Cross-claim after Answer

A supplemental complaint may be answered within A counterclaim or a cross-claim which either matured
twenty (20) calendar days from notice of the order or was acquired by a party after serving his pleading
admitting the same, unless a different period is fixed by may, with the permission of the court, be presented as
the court. The answer to the complaint shall serve as a counterclaim or a cross-claim by supplemental
the answer to the supplemental complaint if no new or pleading before judgment. [Sec. 9, Rule 11]
supplemental answer is filed. (7a)
- UP BOC 2020 Remedial Law, page 53
A supplemental complaint also requires leave of court.
When the plaintiff wants to introduce additional matters to Omitted Counterclaim or Cross-Claim (amendment
his complaint, he must secure the approval of the court. but with leave of court)
When the court grants the motion for leave to file a
supplemental complaint, that is the time when the 20-day SECTION 10. Omitted Counterclaim or Cross-
period starts to run from the receipt of the order of the Claim. — When a pleader fails to set up a counterclaim
court allowing the filing of the supplemental complaint. or a cross-claim through oversight, inadvertence, or
excusable neglect, or when justice requires, he or she
Counterclaim & Cross-Claim Arising After Answer may, by leave of court, set up the counterclaim or
cross-claim by amendment before judgment. (10a)
SECTION 8. Existing Counterclaim or Cross-Claim.
— A compulsory counterclaim or a cross-claim that a If you have a counterclaim or cross-claim, you have to
defending party has at the time he or she files his or raise that in your answer, otherwise, it is deemed waived.
her answer shall be contained therein. (8a) The exception is you may ask the court to allow you to
introduce your omitted counterclaim or cross-claim by
SECTION 9. Counterclaim or Cross-Claim Arising way of amendment. If the defendant can show to the court
after Answer. — A counterclaim or a cross-claim some justifiable reason (or even by oversight or
which either matured or was acquired by a party after negligence) why he failed to include that in his answer, he
serving his or her pleading may, with the permission of can file a motion for leave of court.
the court, be presented as a counterclaim or a cross-
claim by supplemental pleading before judgment. (9a) Extension of Time to Plead: Not more than 30 days

The same may be allowed by the court through a SECTION 11. Extension of Time to File an Answer.
supplemental pleading. This presupposes that your — A defendant may, for meritorious reasons, be
counterclaim occurs only after you have already filed your granted an additional period of not more than thirty (30)
answer. There are events that transpired after you have calendar days to file an answer. A defendant is only
filed your answer that necessitates the conclusion of the allowed to file one (1) motion for extension of time to
said matter as a counterclaim in your answer. You can file an answer.
introduce it by way of a supplemental pleading.
A motion for extension to file any pleading, other than
The same is true with a cross-claim by a defendant an answer, is prohibited and considered a mere scrap
against his co-defendant if the matter happens after the of paper. The court, however, may allow any other
filing of the original answer. It can be introduced through pleading to be filed after the time fixed by these Rules.
a supplemental pleading. As you already know, as a (11a)
supplemental pleading, it can only be introduced with prior
leave of court. You can ask for one extension of 30 days. You cannot ask
for more. No extension to file other pleading is allowed,
Failure to plead compulsory counterclaim and only time to file Answer.
cross-claim:
N.B. The court, however, may allow any other
General rule: A compulsory counterclaim, or a cross- pleadings to be filed after the time fixed by these
claim, not set up shall be barred. [Sec. 2, Rule 9] Rules.

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SUMMARY OF PERIODS OF FILING OF PLEADINGS is fixed by the
court)
Responsive Reckoning
Period
Pleadings Point
Answer to the Within 30 Service of RULE 12
Complaint calendar days Summons BILL OF PARTICULARS
(Sec.1) (unless a
SECTION 1. When Applied for; Purpose. — Before
different period
responding to a pleading, a party may move for a
is fixed)
definite statement or for a bill of particulars of any
Answer of a Within 60 Receipt of
matter, which is not averred with sufficient definiteness
defendant calendar summons
or particularity, to enable him or her properly to
foreign private days by such
prepare his or her responsive pleading. If the pleading
juridical entity entity
is a reply, the motion must be filed within ten
whose
(10) calendar days from service thereof. Such motion
summons was
shall point out the defects complained of, the
served on the
paragraphs wherein they are contained, and the
government
details desired. (1a)
official
designated by
law [Sec. 2] What is a Bill of Particulars?
Answer to Within 30 Service of a
amended calendar copy of the A bill of particulars is a more definite statement of any
complaint as a days amended matter which is not averred with sufficient definiteness or
matter of right complaint particularity in a pleading so as to enable the opposing
[Sec. 3] party to prepare his responsive pleading. It should not be
Answer to Within 15 Notice of the used to ask the Plaintiff to divulge evidentiary matters.
amended calendar order admitting
complaint NOT days The amended Monte: It is the remedy of answering party in case the
as a matter of complaint pleading of the other party is vague or not clearly worded.
right [Sec. 3] Vague or ambiguous means susceptible to two or more
Answer to an Same as Same as interpretations.
amended answer to answer to
counterclaim amended amended If you are the defendant and you found out that some
amended complaint complaint paragraphs in the complaint are very vague, do you have
crossclaim, to answer right away? No. You are not compelled to
amended third answer a complaint that contains ambiguous statements
(fourth, etc.) - or allegations.
party complaint,
and amended What is your remedy?
complaint- Your remedy is to file a Motion for Bill of Particulars. It is
inintervention a form of a request by the defendant but addressed to the
[Sec. 3] court asking the court to order the plaintiff to particularize
Answer to Within 20 Service or clarify some of the ambiguous statements in his
counterclaim or calendar complaint. The purpose is to allow the defendant to
cross-claim days prepare intelligently his answer to the complaint.
[Sec. 4]
Answer to third Same as Same as “It should not be used to ask the Plaintiff to divulge
(fourth, etc.) - answer to the answer to the evidentiary matters.”
party complaint complaint complaint
[Sec. 5] This line is not relevant now because complaints now
Reply [Sec. 6] Within 15 Service of the must already contain evidentiary matters unlike before
calendar pleading where you are made to allege the ultimate facts only.
days responded to Now, you are required to divulge your evidence even in
your initial pleading. That could also be clarified now in a
Answer to Within 20 Notice of the Bill of Particulars.
supplemental calendar days order admitting
complaint [Sec. (unless a the same
7] different period

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 Action of the Court Effect of Filing of a Bill of Particulars

SECTION 2. Action by the Court. — Upon the SECTION 5. Stay of Period to File Responsive
filing of the motion, the clerk of court must Pleading. — After service of the bill of particulars
immediately bring it to the attention of the court, which or of a more definite pleading, or after
may either deny or grant it outright, or allow the parties notice of denial of his or her motion, the moving party
the opportunity to be heard. (2) may file his or her responsive pleading within the
period to which he or she was entitled at the
time of filing his or her motion, which shall not be less
The clerk must immediately bring it to the attention of the
than five (5) calendar days in any event. (5a)
court which may either deny or grant it outright, or allow
the parties to be heard (Sec.2).
The filing of a bill of particulars stops or interrupts the
If the motion is granted by the court, the compliance running of the period to file an answer. But, at least 5 days
therewith must be effected within 10 days from notice of to answer.
the order, unless a different period is fixed by the court.
The bill of particulars or a more definite statement ordered Dean: If you filed a Motion for Bill of Particulars on the
by the court may be filed either in a separate or in an 28th day (which means you have 2 days left), the rules say
amended pleading, serving a copy thereof on the adverse you should have at least 5 days to file your Answer.
party (Sec.3).
Bill of Particulars Becomes Part of the Pleading
Dean: If the judge feels that the filing of the bill of
particulars is a dilatory tactic, the judge has the discretion SECTION 6. Bill a Part of Pleading. — A
to outrightly deny if the court finds that there is no bill of particulars becomes part of the pleading for
ambiguity. If the court agrees with the defendant that which it is intended. (6)
there is ambiguity, it may allow the parties to be heard and
grant the motion for bill of particular. The compliance must The Bill of Particulars becomes part of the complaint.
be effected within 10 days from notice of the order unless
a different period is fixed. RULE 13
FILING AND SERVICE OF PLEADINGS, JUDGMENT,
The Bill of Particular may be filed in two ways: AND OTHER PAPERS
1) Separate pleading
2) Amended pleading Definition of Terms

Effect of Non-Compliance SECTION 1. Coverage. — This Rule shall govern the

filing of all pleadings, motions, and other court
SECTION 3. Compliance with Order. — If the motion submissions, as well as their service, except those for
is granted, either in whole or in part, the compliance which a different mode of service is prescribed. (1a)
therewith must be effected within ten
(10) calendar days from notice of the order, unless a SECTION 2. Filing and Service, Defined. — Filing is
different period is fixed by the court. The the act of submitting the pleading or other paper to
bill of particulars or a more definite statement ordered the court.
by the court may be filed either in a separate or in an
amended pleading, serving a copy thereof on the Service is the act of providing a party with a copy of the
adverse party. (3a) pleading or any other court submission. If a party has
appeared by counsel, service upon such party shall be
SECTION 4. Effect of Non-Compliance. — If the made upon his or her counsel, unless service upon the
order is not obeyed, or in case of insufficient party and the party's counsel is ordered by the court.
compliance therewith, the court may order the striking Where one counsel appears for several parties, such
out of the pleading or the portions thereof to which the counsel shall only be entitled to one copy of any paper
order was directed, or make such other order as it served by the opposite side.
deems just. (4)
Where several counsels appear for one party, such
The Court may order the striking out of the pleading or a party shall be entitled to only one copy of any pleading
portion thereof for noncompliance. or paper to be served upon the lead counsel if one is
designated, or upon any one of them if there is no
designation of a lead counsel.

Gaviola Sevilla Torres

Filing The preferred mode of mailing is by registered mail.
Delivery of the pleading into the hands of the clerk of court Remember that your complaint is not considered filed
without payment of the filing fee. Your complaint
Service must be accompanied by a postal money order
Refers to the act of furnishing a copy of the pleading to (PMO). Your complaint mailed to Davao must already
the other party include your payment of the docket fee and other lawful
fees.
Manner of Filing
Payment of Docket Fees
SECTION 3. Manner of Filing. — The filing of It is not simply the filing of the complaint or appropriate
pleadings and other court submissions shall be made initiatory pleading but the payment of the prescribed
by: docket fee that vests a trial court with jurisdiction over the
(a) Submitting personally the original thereof, plainly subject matter or nature of the action [Proton Pilipinas v.
indicated as such, to the court; Banque National de Paris, G.R. No. 151242 (2005)]
(b) Sending them by registered mail;
(c) Sending them by accredited courier; or Payment of docket fees is mandatory and jurisdictional
(d) Transmitting them by electronic mail or other [National Transmission Corporation v. Heirs of Teodulo
electronic means as may be authorized by the Court in Ebesa, G.R. No. 186102 (2016)].
places where the court is electronically equipped.
By Accredited Courier
In the first case, the clerk of court shall endorse on the
pleading the date and hour of filing. In the second and Monte: In places where there is no facility for registered
third cases, the date of the mailing of motions, mailing, you may do it by an accredited private courier like
pleadings, and other court submissions, and payments LBC.
or deposits, as shown by the post office stamp on the
envelope or the registry receipt, shall be considered as By electronic mail or other electronic means
the date of their filing, payment, or deposit in court. The
envelope shall be attached to the record of the case. In Monte: It may also be filed by electronic mail or other
the fourth case, the date of electronic transmission shall electronic means if allowed by the parties.
be considered as the date of filing.
Papers Required to be Filed and Served
Manner of Filing
1. Personally SECTION 4. Papers Required to be Filed and Served.
2. Registered Mail — Every judgment, resolution, order, pleading
3. By Accredited Courier subsequent to the complaint, written motion, notice,
4. By electronic mail or other electronic means appearance, demand, offer of judgment or similar papers
shall be filed with the court, and served upon the parties
Personally affected.

Monte: The most common mode of filing is by filing it Papers Required to be Filed and Served
personally. 1. Judgment
2. Resolution
How do you do it? 3. Order
You deliver the complaint to the court by handing it over 4. Pleading subsequent to the complaint
the clerk of court. The clerk of court will put a stamp on 5. Written Motion
the date it was received and you will pay the filing fee or 6. Notice
the docket fee to the clerk of court. 7. Appearance
8. Demand
9. Offer of judgment
Registered Mail 10. Similar papers

Monte: For example, if you are residing in Cebu and you Service of Pleadings
would like to file a case for real action in Davao because
the property is located therein, you do not have to go to SECTION 5. Modes of Service. — Pleadings, motions,
Davao. You can have the complaint prepared here in notices, orders, judgments, and other court submissions
Cebu City and mail it to the Regional Trial Court of Davao shall be served personally or by registered mail,
addressed to the Clerk of Court. accredited courier, electronic mail, facsimile transmission,
other electronic means as may be authorized by the

Gaviola Sevilla Torres

Court, or as provided for in international conventions to retained by the court. Some of the copies will be served
which the Philippines is a party||| by the court to the defendant together with the Summons.

3 Modes of Service The sheriff will serve the Summons and attached
Pleadings, motions, orders, judgments, and other court therewith is a copy of the complaint. The filing of the
submissions shall be served: complaint comes first before it is served to the
1. Personally defendant. But after that, all other pleadings must be
2. By registered mail served first before it is filed.
3. By substituted service
If you are the defendant and you received the Summons,
(UP BOC 2020) you will have to prepare your Answer. Your Answer must
Modes of Service be filed in court and at the same time furnish a copy to the
Pleadings, motions, orders, judgments, and other court plaintiff. Which one should come first, the service or
submissions shall be served: the filing?
1. Personally, The service of the Answer to the plaintiff will now come
2. By registered mail, first before the filing. Before you file the Answer in court,
3. By accredited courier, you will have to furnish a copy of the pleading to the other
4. By electronic mail, facsimile transmission, or other party. All subsequent pleadings after the filing of the
electronic means as may be authorized by the Court complaint must be served first before it is filed in
5. By service as provided for in international conventions court.
to which the Philippines is a party, and
6. Substituted service. [Sec. 5, Rule 13] Why?
The court will not accept any pleadings filed before it if
Personal Service there is no proof that you have furnished a copy of the
pleading to the other party so that the other party will know
you have filed a pleading and she will have sufficient time
SECTION 6. Personal Service. — Court submissions
to prepare a response to that pleading.
may be served by personal delivery of a copy to the party
or to the party's counsel, or to their authorized
How do you serve the pleading?
representative named in the appropriate pleading or
Normally, you serve it by personal service.
motion, or by leaving it in his or her office with his or
her clerk, or with a person having charge thereof. If no
How is personal service of pleading done?
person is found in his or her office, or his or her office is
1. By delivering personally a copy of the pleading to
not known, or he or she has no office, then by leaving the
the party or his counsel.
copy, between the hours of eight in the morning and six in
the evening, at the party's or counsel's residence, if
For example, your lawyer has a messenger in his office.
known, with a person of sufficient age and discretion
The messenger of the office will be the one to serve a
residing therein.|||
copy of your Answer to the lawyer of the plaintiff. After
serving the Answer, the messenger will now go to court
Personal Service and file it. When the court receives your answer, the first
1. Delivering personally a copy of the pleading to thing it will do is to check if there is proof that the plaintiff
the party or his counsel has already been furnished a copy of the said Answer.
2. Leaving it in counsel’s office or any person in
charge thereof; The pleadings that you furnish to the other party need not
3. If no person is found in his office, by leaving a be furnished to the party but through the lawyer. When a
copy thereof, between 8AM to 6PM at the party is represented by a lawyer, the service of the
party’s or counsel’s residence with any person of pleading shall be done through the lawyer. The pleading
suitable age and discretion shall be served personally to the lawyer or if he cannot be
located, then to the party.
Which comes first, the filing or the service of a
pleading?
2. If the lawyer is not around when the pleading is
It depends on what pleading you are filing.
served, it can be served to the secretary of the lawyer
If you are filing an initiatory pleading such as a complaint,
or any person in charge thereof in the law office. Once
the filing comes first. Once it is filed in court, it is not
the secretary receives it, you have to let her sign showing
anymore your duty or obligation to furnish a copy of the
that she received it and the date and time it was received.
complaint to the defendant or other party – it is the
obligation of the court.
3. If no person is found in his office, it can be served
by leaving a copy thereof, between 8AM to 6PM at the
So if you will submit 4 or 5 copies of your complaint, the
court will give you one copy of that while the rest will be

Gaviola Sevilla Torres

party’s or counsel’s residence with any person of Ordinary mail – If no registry service is available in the
suitable age and discretion. locality of either the sender or addressee, service can be
If there is no one in the office, it can be served at the made through ordinary mail. [Sec. 7, Rule 13]
residence of the lawyer or at the residence of the party
and should be served to a person of suitable age and Substituted Service
discretion residing therein. That is a valid service of
pleadings. SECTION 8. Substituted Service. — If service of
pleadings, motions, notices, resolutions, orders and other
How personal service is made papers cannot be made under the two preceding sections,
Service by personal service shall be made by: the office and place of residence of the party or his or
1. By personal delivery of a copy to the party, counsel, or her counsel being unknown, service may be made by
to their authorized representative named in the delivering the copy to the clerk of court, with proof of
appropriate pleading or motion, or failure of both personal service and service by mail. The
2. By leaving it in his or her office with his or her clerk, or service is complete at the time of such delivery.|||
with a person having charge thereof
• If (a) no person is found in his or her office, or Substituted Service of Pleadings
(b) his or her office is not knownfee, or (c) he or she has If service of pleadings, etc., and other papers cannot be
no office, then by leaving the copy at the party or made personally or by mail, the office and place of
counsel's residence, if known, with a person of sufficient residence of the party or his counsel being unknown,
age and discretion residing therein. service may be made by delivering the copy to the
•Such must be served at the residence at a time between clerk of court, with proof of failure to both personal
8 am to 6 pm. [Sec. 6, Rule 13] service and service by mail. The service is complete at
the time of such delivery. (Section 8)

Service by Mail Monte: Substituted service of pleadings refers to that

delivery of the copy of the pleading to the clerk of court
SECTION 7. Service by Mail. — Service by registered because the address of the other party’s lawyer or the
mail shall be made by depositing the copy in the post address of the party himself could not be found in the
office, in a sealed envelope, plainly addressed to the party mailing address. The copy intended for the adverse party
or to the party's counsel at his or her office, if known, shall be delivered to the clerk of court and that in itself
otherwise at his or her residence, if known, with postage shall be considered as a substituted service of pleading.
fully pre-paid, and with instructions to the postmaster to
return the mail to the sender after ten (10) calendar days How service by accredited courier is done (UP BOC
if undelivered. If no registry service is available in the Notes 2020)
locality of either the sender or the addressee, service may Note: Unlike the other means of service, it seems that
be done by ordinary mail.||| there is no provision under the Amended Rules which
outlines how service via accredited courier is done.
Service by Mail
1. Registered Mail At most, the Amended Rules only provide that in the case
2. Accredited courier of judgements, finals orders, and resolutions, such
service must be preceded by an ex parte motion
Monte: Between an accredited private courier and requested by any party to the proceedings. [Sec. 13, Rule
registered mail, the latter is preferred mode of service. But 13]
in places where there is no registered mail service, then
you may mail it through an accredited private courier. Service of Decisions, Orders, or Resolutions

How service by registered mail is made SECTION 13. Service of Judgments, Final Orders or
1. Depositing the copy in the post office in a sealed Resolutions. — Judgments, final orders, or resolutions
envelope, shall be served either personally or by registered
2. The copy must be plainly addressed to the party or mail. Upon ex parte motion of any party in the case, a
counsel at his office, if known. Otherwise, address to his copy of the judgment, final order, or resolution may be
residence, if known, delivered by accredited courier at the expense of such
3. Postage must be fully prepaid, and party. When a party summoned by publication has failed
4. Copy must come with instructions to the postmaster to to appear in the action, judgments, final orders or
return the mail to the sender after 10 calendar days if the resolutions against him or her shall be served upon him or
copy remains undelivered. her also by means of publication at the expense of the
prevailing party|||

Gaviola Sevilla Torres

Service of court judgments, decisions, orders or Service by Electronic Means and Facsimile
resolutions shall be done: (if both parties consented to it)
1. By personal service,
2. By registered mail or SECTION 9. Service by Electronic Means and
3. By publication Facsimile. — Service by electronic means and
4. By accredited courier, upon ex parte motion of facsimile shall be made if the party concerned consents
any party*2 to such modes of service.

Nota Bene: Service of decision by publication is Service by electronic means shall be made by sending
allowed only if the summons was also served by an e-mail to the party's or counsel's electronic mail
publication. address, or through other electronic means of
transmission as the parties may agree on, or upon
Monte: Decisions, orders, or resolutions of the court shall direction of the court.
also be served to all the parties of the case. They must all
be served with a copy. Service by facsimile shall be made by sending a
facsimile copy to the party's or counsel's given facsimile
By Personal Service number.|||

How does the court serve the parties with a copy of (a) Service by electronic means – sending e-mail to the
its judgments, decisions, orders, resolutions? parties or counsel’s e-mail address or through other
It shall be done by personal service. That’s first one. electronic means
When we say personal service, it will be delivered by the (b) Service by facsimile shall be made by sending a
court. The court has its own messenger called a process facsimile copy to the party’s or counsel’s given
server who will serve it personally to the lawyer of the facsimile number
party at the law office. If the lawyer is not around, it shall
be given to the secretary who will receive it and stamp the Monte: Section 9 is very new. This is allowed only if both
rubber stamp of the office with the date and time she parties consented to it.
received the same.
What are other electronic means?
By Registered Mail Dean Monti says he is not very familiar with this one. He
says maybe by viber, chat, etc., provided
If the lawyer or party is holding office in another province
or in a place that is far from the court, then it becomes If the respective parties agreed to the sending of the
impractical to serve a copy at the province or place of the respective pleadings through electronic means, then they
party. Thus, they may serve it by registered mail. will have to submit to the court their email addresses and
telephone numbers for the use of facsimile.
Now the court has already an arrangement with the postal
office that court orders and processes will be coursed Presumptive Service
through the post office by way of registered mail.
SECTION 10. Presumptive Service. — There shall be
By Publication presumptive notice to a party of a court setting if such
notice appears on the records to have been mailed at
The third option is by publication. The decision of the least twenty (20) calendar days prior to the scheduled
court may be served by publication only if the date of hearing and if the addressee is from within the
summons was also served by publication. same judicial region of the court where the case is
pending, or at least thirty (30) calendar days if the
This refers to a situation whereby the Summons was addressee is from outside the judicial region.|||
served by publication because the defendant could no
longer be located nor found. After the service of summons
There is a presumptive notice to a party of a court setting
by publication, the plaintiff may be allowed to present her
if such notice appears on the records to have been mailed
evidence ex parte. After she is through presenting her
at least 20 days prior to date of hearing if the addressee
evidence, the court will decide. If the court will decide in
is within the same judicial region or at least 30 days if the
favor of the plaintiff, the court shall also publish the
addressee is residing outside the judicial region.
decision in a newspaper because the Summons was also
published in a newspaper.
Monte: When the court sends out notices of hearing, the
court will send it by registered mail because the party or

Gaviola Sevilla Torres

his counsel is residing in another province. Once it is prescribed format: case number, case title and the
made, there is a presumption that the notice has been pleading, order or document title. The title of each
received by the other party after the lapse of 20 days, electronically-filed or served pleading or other document,
provided that the court and the addressee belongs to the and each submission served by facsimile shall contain
same judicial region or 30 days if the addressee is sufficient information to enable the court to ascertain from
residing outside the judicial region. the title: (a) the party or parties filing or serving the paper,
(b) nature of the paper, (c) the party or parties against
Here in Cebu, if the RTC of Cebu sends out a notice to whom relief, if any, is sought, and (d) the nature of the
parties residing in Bohol, Negros Occidental, or Siquijor, relief sought.|||
it requires at least 20 days for the presumption of service
to apply since these places belong to the same judicial Monte: When you send a pleading or any other document
region. If the party is outside the 7th judicial region, it by electronic means to the other party and furnish a copy
requires 30 days. thereof to the court via electronic means, it has to be done
in the same format as a pleading as we have discussed
Note: Since it is provided as a mere presumption, it may in Rule 7. Most importantly, it should indicate the nature
be subject to proof to the contrary, such as when counsel of the pleading filed.
adduces evidence that notice of the court setting was
indeed not served. The subject of the e-mail and facsimile must follow the
prescribed format:
Change of Electronic Mail Address or Facsimile 1. Case number, followed by
Number 2. Case title, followed by
3. The pleading, order or document title.
SECTION 11. Change of Electronic Mail Address or • The title of each electronically-filed or served pleading
Facsimile Number. — A party who changes his or her or document, and each submission served by facsimile,
electronic mail address or facsimile number while the shall contain sufficient information to enable the court to
action is pending must promptly file, within five (5) ascertain from the title:
calendar days from such change, a notice of change of a. The parties filing or serving the paper,
e-mail address or facsimile number with the court and b. The nature of the paper,
serve the notice on all other parties. c. The party or parties against whom relief, if any, is
sought, and
Service through the electronic mail address or facsimile d. The nature of the relief sought. [Sec. 12, Rule 13]
number of a party shall be presumed valid unless such
party notifies the court of any change, as Conventional Service or Filing
aforementioned
SECTION 14. Conventional Service or Filing of
Note: Must notify the court in 5 days Orders, Pleadings and Other Documents. —
Notwithstanding the foregoing, the following orders,
Monte: If you agree to the service by electronic means pleadings, and other documents must be served or filed
and you later on change your email address, you must personally or by registered mail when allowed, and shall
immediately notify the court. Otherwise, court will not be not be served or filed electronically, unless express
faulted if it relied to your old email address, you cannot permission is granted by the Court:
complain later on that you have not received it.
(a) Initiatory pleadings and initial responsive pleadings,
Service through the registered e-mail of the party shall be such as an answer;
presumed valid unless such party notifies the court of any
change as aforementioned. [Sec. 11, Rule 13] (b) Subpoenae, protection orders, and writs;
(c) Appendices and exhibits to motions, or other
Note: Due to the rule providing for such presumption, any documents that are not readily amenable to
actual change in the e-mail addresses or facsimile electronic scanning may, at the option of the party
numbers of the parties will not bind the court unless the filing such, be filed and served conventionally; and
party gives notice of the change.
(d) Sealed and confidential documents or records
Subject of Electronic Mail or Facsimile Must Follow
the Prescribed Format of Caption Conventional Service or Filing of:
1. Intiatory pleading such as complaint or answer
SECTION 12. Electronic Mail and Facsimile Subject 2. Subpoena, Protection Orders, Writs
and Title of Pleadings and Other Documents. — The
subject of the electronic mail and facsimile must follow the

Gaviola Sevilla Torres

 3. Appendices or exhibits to motions that are not c) Registered mail – upon actual receipt or after 5 days
readily available to electronic scanning (at the from first receipt of notice from postmaster whichever
option of the party filing); and is earlier
4. Sealed and confidential documents or records d) Accredited courier – upon actual receipt or after 2
attempts or after 5 days from first attempt to serve it
Monte: Initiatory pleadings and answers must follow the e) Electronic service – is complete at the time of the
conventional way of service. electronic transmission of the document, or when
available, at the time when the electronic notification
What is the conventional service? of service of the document is sent. Electronic service
Personal Service and Personal Filing is not effective or complete if the party serving the
document learns that it did not reach the addressee
But the Answer may be through registered mail or private or person to be served
courier. f) Service by facsimile transmission – is complete upon
receipt by the other party, as indicated in the facsimile
General Rule: The following should not be served or filed transmission printout
electronically, and shall be filed or served personally or
by registered mail: Monte: If it is done by personal service, for example, if
1. Initiatory pleadings and initial responsive pleadings your pleading was served at the office of the lawyer of the
(answer); opposing party, actual receipt thereof is deemed a
2. Subpoena, protection orders, and writs; complete service.
3. Appendices and exhibits to motions, or other
documents that are not readily amenable to electronic If it is done by ordinary mail, it is deemed complete after
scanning (at the option of the party filing); and 10 days from mailing. There is a presumption of
4. Sealed and confidential documents or records. completeness of service.

Exception: When the court gives express permission for If it is done by registered mail, the actual receipt or after
them to be filed electronically. [Sec. 14, Rule 13] 5 days from first receipt of notice from postmaster,
whichever is earlier, is deemed a completeness of
Completeness of Service service. For example, if you mail your pleading to Davao
and both the other party and his lawyer resides in Davao
SECTION 15. Completeness of Service. — Personal while the case is tried here in Cebu,
service is complete upon actual delivery. Service by
ordinary mail is complete upon the expiration of ten In registered mail, the pleading is placed in an envelop
(10) calendar days after mailing, unless the court and the name of the addressee is indicated, and attached
otherwise provides. Service by registered mail is to it is a registry return card. When you deliver it to the
complete upon actual receipt by the addressee, or after post office, you tell the cashier or the person in charge
five (5) calendar days from the date he or she received that you will mail it by registered mail – the registry return
the first notice of the postmaster, whichever date is card must be attached. The post office will issue to you a
earlier. Service by accredited courier is complete upon receipt which will serve as proof that you mailed it by
actual receipt by the addressee, or after at least two (2) registered mail. Such receipt should be attached to the
attempts to deliver by the courier service, or upon the copy of the pleading in court because the clerk of court
expiration of five (5) calendar days after the first attempt will try to check it. When that envelop has already been
to deliver, whichever is earlier. delivered to Davao City, the lawyer who receives it will be
asked by the postman to sign the registry receipt
Electronic service is complete at the time of the evidencing that he already received it. The postman will
electronic transmission of the document, or when detach the registry receipt from the envelop and mail it
available, at the time that the electronic notification of back to the post office of Cebu City and the latter will
service of the document is sent. Electronic service is not deliver the registry receipt to you. That is the best proof
effective or complete if the party serving the document that the lawyer in Davao has already received your mail.
learns that it did not reach the addressee or person to You will submit it to the court so that it will be attached to
be served. the record.

Service by facsimile transmission is complete upon In the meantime, for purposes of filing a pleading, that
receipt by the other party, as indicated in the facsimile registered receipt issued to you by the post office of Cebu
transmission printout City must be attached to the pleading and file it in court
because that clerk of court will check if you have furnished
a copy of the pleading to the opponent.
a) Personal – actual delivery
b) Ordinary mail – after 10 days from mailing

Gaviola Sevilla Torres

In Davao, the service of the pleading will be deemed Note: It is not effective or complete
complete upon actual receipt by the lawyer in Davao or it if the party serving learns that it did
is possible that the post office in Davao will notify the not reach the person to be served.
lawyer that he has a registered mail in the post office to
be picked up. Otherwise, if he fails to pick it up after the Service by Upon receipt by the other party as
lapse of 5 days, that registered mail shall be deemed Fascimile indicated in the facsimile printout
served. Transmission
Substituted At the time of delivery of the copy to
In the case of an accredited courier, the service of the Service the clerk of court (Section 8, Rule
pleading shall be deemed complete upon actual receipt 13)
or after 2 attempts or after 5 days from the first attempt to (Section 15, Rule 13)
serve it.
Proof of Filing
Electronic service is complete at the time of the
electronic transmission of the document, or when SECTION 16. Proof of Filing. — The filing of a
available, at the time when the electronic notification of pleading or any other court submission shall be proved
service of the document is sent. Electronic service is not by its existence in the record of the case.
effective or complete if the party serving the document
learns that it did not reach the addressee or person to be (a) If the pleading or any other court submission is not
served in the record, but is claimed to have been filed
personally, the filing shall be proven by the written
When you will send an email to someone, you will know or stamped acknowledgment of its filing by the clerk
whether that email was received by the addressee or not of court on a copy of the pleading or court
by checking the “Sent” items, or you will be notified that submission;
the email was not sent to the addressee.
(b) If the pleading or any other court submission
Service by facsimile transmission is complete upon was filed by registered mail, the filing shall be
receipt by the other party, as indicated in the facsimile proven by the registry receipt and by the affidavit of
transmission printout. When you say facsimile, there is the person who mailed it, containing a full
already a printout that was already received by the other statement of the date and place of deposit of the
party. mail in the post office in a sealed envelope
addressed to the court, with postage fully prepaid,
Mode of Completeness of Service and with instructions to the postmaster to return the
Service mail to the sender after ten (10) calendar days if not
Personal Upon actual delivery delivered.
Service
Service by Upon the expiration of the 10 (c) If the pleading or any other court submission was
ordinary mail calendar days after mailing, unless filed through an accredited courier service, the filing
the court otherwise provides shall be proven by an affidavit of service of the
person who brought the pleading or other document
Service by Upon the actual receipt by the to the service provider, together with the courier's
registered mail addressee or after 5 calendar days official receipt and document tracking number.
from the date he or she received the
first notice of the postmaster, (d) If the pleading or any other court submission was
whichever is earlier filed by electronic mail, the same shall be proven by
an affidavit of electronic filing of the filing party
Service by Upon actual receipt by the accompanied by a paper copy of the pleading or
accredited addressee or after at least 2 other document transmitted or a written or stamped
courier attempts to deliver or upon the acknowledgment of its filing by the clerk of court. If
expiration of 5 calendar days after the paper copy sent by electronic mail was filed by
the first attempt to deliver, registered mail, paragraph (b) of this Section
whichever is earlier applies.

Electronic At the time of the electronic (e) If the pleading or any other court submission was
Service transmission of the document or at filed through other authorized electronic means, the
the time that the electronic same shall be proven by an affidavit of electronic
notification of service of the filing of the filing party accompanied by a copy of
document is sent the electronic acknowledgment of its filing by the
court. (12a)

Gaviola Sevilla Torres

Monte: How do you prove that you have filed the issued by the mailing office. The registry return card
pleading in court? shall be filed immediately upon its receipt by the
The best proof that you have filed the pleading in court sender, or in lieu thereof, the unclaimed letter
is when your pleading is already attached to the records together with the certified or sworn copy of the
of the court or the stamp by the clerk of court with her notice given by the postmaster to the addressee.
signature and the date and time of the filing.
(c) Accredited courier service. — Proof shall be made
If it cannot be proven, present the affidavit of your by an affidavit of service executed by the person
messenger in the law office that he is the one who filed who brought the pleading or paper to the service
it at such date and time. provider, together with the courier's official receipt
or document tracking number.
Mode Proof of Filing
Personal Filing By the written or stamped (d) Electronic mail, facsimile, or Other Authorized
acknowledgment of its filing by the electronic means of transmission. — Proof shall be
clerk of court on a copy of the made by an affidavit of service executed by the
pleading or court submission person who sent the e-mail, facsimile, or other
electronic transmission, together with a printed
Filing by By the registry receipt and the proof of transmittal. (13a)
registered mail affidavit of the person who mailed it
containing a full statement of the Monte: The best proof of service may also be the
date signature of the secretary of the lawyer of the other
and place of deposit of the mail in party or the signature of the lawyer who receives it.
the post office in a sealed envelope
addressed to the court, with postage If it is by registered mail, the best evidence is the
fully prepaid, and with the registry return card that is returned to you by the post
instructions to the postmaster to office.
return the mail to the sender after 10
calendar days if not delivered. Mode Proof of Service
Filing by By an affidavit of service of the Personal A written admission of the party
accredited person who brought the pleading or Service served, or The official return of the
courier other document to the service server, or The affidavit of the party
provider, and the courier’s official serving, containing a statement of
receipt and document tracking the date, place, and manner of
number. service
Electronic Filing By an affidavit of electronic filing of Service by An affidavit of the person mailing
the filing party, and a paper copy of Ordinary mail stating the facts showing
the pleading or other document compliance with Sec. 7, Rule 13.
transmitted, or A written or stamped Note: This
acknowledgment of its filing by the mode of service
clerk of court. may only be
Filing by other By an affidavit of electronic filing of availed of if no
authorized the filing party, and a copy of the registry service
electronic electronic acknowledgment of its is available in
means filing by the court. the locality as
per Sec. 7, Rule
Proof of Service 13.
Service by An affidavit of the person mailing
SECTION 17. Proof of Service. — Proof of personal Registered Mail stating the facts showing
service shall consist of a written admission of the party compliance with Sec. 7, Rule 13 and
served, or the official return of the server, or the affidavit the registry receipt issued by the
of the party serving, containing a statement of the date, mailing office.
place, and manner of service. If the service is made by: Service by An affidavit of service executed by
accredited the person who brought the
(a) Ordinary mail. — Proof shall consist of an affidavit courier pleading or paper to the service
of the person mailing stating the facts showing provider, and the courier’s official
compliance with Section 7 of this Rule. receipt or document tracking
number.
(b) Registered mail. — Proof shall be made by the
affidavit mentioned above and the registry receipt

Gaviola Sevilla Torres

 Service by An affidavit of service executed by
Electronic Mail, the person who sent the e-mail,
Facsimile, or facsimile, or other electronic
other transmission, and printed proof of
authorized transmittal.
electronic
means of
transmission

Court-issues Orders and Other Documents

SECTION 18. Court-issued Orders and Other

Documents. — The court may electronically serve
orders and other documents to all the parties in the case
which shall have the same effect and validity as
provided herein. A paper copy of the order or other
document electronically served shall be retained and
attached to the record of the case. (n)

Monte: The best proof of service is the process server

of the court.

Notice of Lis Pendens

SECTION 19. 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 or her answer, may
record in the office of the registry of deeds of the
province in which the property is situated a 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 party who caused it to be recorded.

Monte: A notice of lis pendens is a notice annotated at

the back of the title of the property to serve as a warning
to the whole world that the property is a subject of a
pending case or litigation so that whoever will deal with
that property will be made aware that the property is
subject to a pending case. So if there is a notice of lis
pendens attached at the back of the title, the buyer of the
property cannot claim that he is a buyer in good faith –
that is the purpose of a notice of lis pendens.

Gaviola Sevilla Torres

 RULE 14 Sec. 2. Contents of the Summons
SUMMONS
SECTION 2. Contents. — The summons shall be
Sec. 1. Summons directed to the defendant, signed by the clerk of court
under seal, and contain:
SECTION 1. Clerk to Issue Summons. — Unless the (a) The name of the court and the names of the
complaint is on its face dismissible under Section 1, Rule parties to the action;
9, the court shall, within five (5) calendar days from (b) When authorized by the court upon ex parte
receipt of the initiatory pleading and proof of payment of motion, an authorization for the plaintiff to
the requisite legal fees, direct the clerk of court to issue serve summons to the defendant;
the corresponding summons to the defendants. (1a) (c) A direction that the defendant answer within
the time fixed by these Rules; and
Summons is a written order from the court informing the (d) A notice that unless the defendant so
defendant that there is a case filed against him, and he answers, plaintiff will take judgment by default
has to file his answer to that complaint. and may be granted the relief applied for.

Monte: So, the complaint will be attached to the A copy of the complaint and order for appointment of
summons, and it will be served on the defendant. The guardian ad litem, if any, shall be attached to the
defendant is informed that he has to answer the summons original and each copy of the summons. (2a)
within the reglementary period, which is now thirty days.
Now, there is also a warning found in the summons that
should the defendant fail to file his answer within the Sec. 3. By Whom Served
reglementary period, then the defendant may be declared
in default by the court, and he loses his standing in court. SECTION 3. By Whom Served. — The summons may
be served by the sheriff, his or her deputy, or other proper
A. How, Who and When Issued court officer, and in case of failure of service of summons
by them, the court may authorize the plaintiff — to serve
When is the summons issued, and who will issue it? the summons — together with the sheriff.

Monte: The summons is issued – once the complaint is In cases where summons is to be served outside the
filed in court, within five (5) days from the filing of the judicial region of the court where the case is pending, the
complaint and the payment of docket and other lawful plaintiff shall be authorized to cause the service of
fees, the judge will direct the clerk of court to issue the summons.
summons. And, the summons is issued in the name of the
Republic of the Philippines, contains the caption of the If the plaintiff is a juridical entity, it shall notify the court, in
case; the court where it is filed or the court which issued writing, and name its authorized representative therein,
the summons. attaching a board resolution or secretary's certificate
thereto, as the case may be, stating that such
Who will sign it? representative is duly authorized to serve the summons
on behalf of the plaintiff.
Monte: The summons is also signed by the clerk of court,
and the complaint will be attached to it. If the plaintiff misrepresents that the defendant was
served summons, and it is later proved that no summons
Summary based on Monte’s slides: was served, the case shall be dismissed with prejudice,
the proceedings shall be nullified and the plaintiff shall be
meted appropriate sanctions.
A. How, who and when issued:
If summons is returned without being served on any or all
• Who will issue? The clerk of court. the defendants, the court shall order the plaintiff to cause
• Who will sign it? The clerk of court. the service of summons by other means available under
• When is it issued? Five (5) days after the the Rules.
filing of the complaint and the payment of
the docket and other lawful fees. Failure to comply with the order shall cause the dismissal
• What to attach? A copy of the complaint. of the initiatory pleading without prejudice. (3a)
• What is its contents? (Refer to Sec. 2)

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 1 of 30

 B. Who Will Serve the Summons? Monte: The plaintiff may request the court that he will be
allowed to serve the summons.
(1) Sheriff
(2) Deputy Sheriff Now, what is the lifespan of a summons?
(3) Other proper court officer (like the process A: The validity of the summons is until it is served,
server) unless it is recalled by the court.
(4) Plaintiff, in case of failure by (1) to (3), if
authorized by the court Monte: But in the event that the summons is destroyed or
lost in the hands of the plaintiff or the sheriff, the court may
Monte: This is something very new and introduced for the issue an alias summons.
first time by the 2019 Amendment. Now, the plaintiff can
already serve the summons if the sheriff, the deputy Sec. 5. Service in Person on Defendant
sheriff and other proper court officers fail to serve it upon
the defendant. But the plaintiff cannot serve it alone; he SECTION 5. Service in Person on Defendant. —
must be accompanied by the sheriff. Whenever practicable, the summons shall be served by
handing a copy thereof to the defendant in person and
So, what will the plaintiff do if the summons is not yet informing the defendant that he or she is being served, or,
served? He will file a motion in court asking the court to if he or she refuses to receive and sign for it, by leaving
authorize him, together with the sheriff, to serve the the summons within the view and in the presence of the
summons on the defendant. defendant. (6a)

Normally, this will apply if the defendant resides in a Personal Service of Summons (Priority)
faraway province, and the plaintiff wants the summons
served immediately; he is willing to shoulder the Now, how is the summons served?
expenses, the transportation in going there – the plane A: Summons must be served to the defendant personally.
fare or the boat fare, together with the sheriff. That is Meaning, it must be served personally to the defendant,
allowed now, but with the prior approval of the court. wherever the defendant may be.

N. B. Effect if plaintiff mispresents in the service of When are summons served during the day?
summons A: Summons may be served at any time of the day.
Monte: It can be served anywhere. But the first rule is that
Monte: Now, if the plaintiff is the one who serves the you have to serve it at the residence of the defendant, or
summons, and he misrepresents to the court – meaning, if not, at his office.
he told the court the summons was already served to the
defendant when in truth and in fact it was not yet served But, if he cannot be found at his residence or at his office,
– what are the consequences? the sheriff can serve it in any other place where the
A: The complaint or the case will immediately be defendant can be found. So, if somebody told the sheriff
dismissed with prejudice, and the plaintiff will also that the defendant can always be found at the cockpit
suffer the consequences of his action because the court arena every Sunday, the sheriff can go there and serve
may impose disciplinary action on him. the summons to the defendant in the cockpit arena. Atos
buangan or adto bas imnanan, where the defendant is
Sec. 4. Validity of Summons and Issuance of Alias always found. Anywhere.
Summons
So, that is personal service of summons.
SECTION 4. Validity of Summons and Issuance of
Alias Summons. — Summons shall remain valid until Refusal to Receive Summons
duly served, unless it is recalled by the court. In case of
loss or destruction of summons, the court may, upon Monte: Now, what if the defendant refused to receive
motion, issue an alias summons. the summons? If the defendant refused to receive the
summons, the sheriff can leave the summons in front of
There is failure of service after unsuccessful attempts to the defendant, and tell the defendant, “Okay, if you will not
personally serve the summons on the defendant in his or receive this, I will leave it here, and I will report to the court
her address indicated in the complaint. Substituted that I already found you, I already handed the summons
service should be in the manner provided under Section to you, but you refused to accept it.”
6 of this Rule. (5a)
So, maybe, to be safe, the sheriff will take a picture – a
Rule in Case of Failure of The Sheriff to Serve selfie, heh – with his cellphone, together with the
Summons defendant, and then leave the summons there.

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The court cannot be held hostage by the defendant’s not find the defendant despite several attempts, then, the
refusal to receive the summons. So, if he refused to sheriff may now resort to substituted service of
receive the summons, then leave the summons in front of summons.
him, and the sheriff can go and report to the court.
Because once the summons is served, it is the duty of the
sheriff to immediately make a report. We call that return Now, the meaning of “several attempts” here is that the
of service of summons. sheriff will have to make at least three (3) attempts on
two different dates. This is something new. Three
Return of Service of Summons attempts.

Monte: Within five (5) days from the service of summons He cannot make the three attempts in just one day. Three
on the defendant, the sheriff will have to make a report or attempts, but on two different dates. So, it can be that the
a return of service of summons to the court. first and second attempt on the same day, and the third
attempt on another day.
Copy-furnish the lawyer of plaintiff so that the plaintiff will
know when the defendant received the summons, so he If despite the three attempts on two different dates, the
can also start counting the reglementary period for the sheriff could still not find the defendant, then the sheriff
defendant to file his answer. So that if the defendant will can resort to substituted service of summons.
not file his answer within the reglementary period, the
plaintiff can file a motion to declare the defendant in What is this substituted service of summons?
default. A: This simply means that the sheriff can give the
summons to another person for and in behalf of the
Sec. 6. Substituted Service defendant.

SECTION 6. Substituted Service. — If, for justifiable Residence

causes, the defendant cannot be served personally
after at least three (3) attempts on two (2) different Monte: So, what the sheriff will do – he will go to the
dates, service may be effected: residence of the defendant and serve the summons on a
person: (1) residing at that place; (2) must be at least 18
(a) By leaving copies of the summons at the years of age; and (3) a person of suitable age and
defendant's residence to a person at least discretion.
eighteen (18) years of age and of sufficient
discretion residing therein; Office or the Place of Work

(b) By leaving copies of the summons at the Monte: Serve it on a person in charge thereof.
defendant's office or regular place of
business with some competent person in Time of Service (Substituted Service)
charge thereof. A competent person
includes, but is not limited to, one who Monte: The summons shall be served, if it is substituted
customarily receives correspondences for service, between the time of eight (8:00AM) in the
the defendant; morning up to six o’clock (6:00PM) in the evening.

(c) By leaving copies of the summons, if refused Substituted Service of Summons vs. Substituted
entry upon making his or her authority and Service of Pleadings
purpose known, with any of the officers of the
homeowners' association or condominium Monte: Please take note that the substituted service of
corporation, or its chief security officer in summons is different from the substituted service of
charge of the community or the building pleadings, which we have already discussed in the
where the defendant may be found; and previous Rule (Rule 13).

(d) By sending an electronic mail to the Substituted Service of Substituted Service of

defendant's electronic mail address, if Summons Pleadings
allowed by the court. (7a) Refers to the delivery of Consists of the delivery of
the summons and the the pleadings to the clerk
complaint to another of court because the other
Substituted Service of Summons person who is residing at party and his lawyer could
the place of the no longer be found or
Monte: Now, in the event the defendant cannot be defendant, and the person served with a copy of the
located, in spite of diligent efforts of the sheriff, he could is at least 18 years of age, pleading.

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 and is of suitable age and
discretion, OR if not, in the Any order granting such leave shall specify a reasonable
place of work, and it shall time, which shall not be less than sixty (60) calendar days
be given to the person in after notice, within which the defendant must answer.
charge thereof. (14a)

Various Secs. Manner of Service of Summons on Entity Without Juridical Personality (Sec. 7)
Different Individuals/Entitles
Monte: Can an entity without juridical personality be
SECTION 7. Service upon Entity without Juridical sued? The answer is yes. Like the answer I gave you
Personality. — When persons associate d in an entity before, a group of friends, say three of them, engaged in
without juridical personality are sued under the name by a business of trading. And so, they set up a store and they
which they are generally or commonly known, service called it “XYZ Trading.” That was not registered with SEC
may be effected upon all the defendants by serving upon as a partnership or corporation, but they engaged in a
any one of them, or upon the person in charge of the office business without juridical personality.
or place of business maintained in such name. But such
service shall not bind individually any person whose When a customer or a client would sue XYZ Trading, he
connection with the entity has, upon due notice, been would sue XYZ Trading and the summons would be made
severed before the action was filed. (8a) on the manager of that store. Or, if he knows who are the
real owners, the summons can be served on any of the
SECTION 8. Service upon Prisoners. — When the known owners or to the manager of the said entity.
defendant is a prisoner confined in a jail or institution,
service shall be effected upon him or her by the officer Prisoners (Sec. 8)
having the management of such jail or institution who is
deemed as a special sheriff for said purpose. The jail Monte: The summons shall be coursed through the jail
warden shall file a return within five (5) calendar days from warden, and the jail warden is the one who will deliver the
service of summons to the defendant. (9a) summons to the prisoner, and be the one to prepare the
return of service of summons for the court, within five (5)
SECTION 10. Service upon Minors and Incompetents. days from the time he served the summons to the
— When the defendant is a minor, insane or otherwise an prisoner.
incompetent person, service of summons shall be made
upon him or her personally and on his or her legal Minor or Incompetent (Sec. 10)
guardian if he or she has one, or if none, upon his or her
guardian ad litem whose appointment shall be applied for Monte: In case of an incompetent, summons shall be
by the plaintiff. In the case of a minor, service shall be served upon the incompetent person AND to this legal
made on his or her parent or guardian. (10a) guardian, or in the case of a minor, it shall be served to
the parents, who are also the legal guardians of the
SECTION 11. Service upon Spouses. — When spouses minors.
are sued jointly, service of summons should be made to
each spouse individually. (n) Spouses (Jointly) (Sec. 11)

SECTION 15. Service upon Public Corporations. — Monte: In case the husband and wife are sued jointly,
When the defendant is the Republic of the Philippines, summons must be served to each of them individually.
service may be effected on the Solicitor General; in case Each of them must be given a copy of the summons.
of a province, city or municipality, or like public
corporations, service may be effected on its executive Defendant Whose Identity is Unknown (Sec. 16)
head, or on such other officer or officers as the law or the
court may direct. (13a) Monte: Now, if service has to be done to a defendant is
unknown, service will be done through publication.
SECTION 16. Service upon Defendant Whose Identity
or Whereabouts are Unknown. — In any action where Public Corporation (Sec. 15)
the defendant is designated as an unknown owner, or the
like, or whenever his or her whereabouts are unknown Monte: Now, if the defendant is a public corporation,
and cannot be ascertained by diligent inquiry, within summons can be served on the public official who is in-
ninety (90) calendar days from the commencement of the charge of the corporation, like the President or the general
action, service may, by leave of court, be effected upon manager.
him or her by publication in a newspaper of general
circulation and in such places and for such time as the
court may order.

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SUMMARY When a lawyer appears in court to question the validity of
the service of summons on his client, the defendant, the
How Service of Summons is court can simply deputize his lawyer to serve the
Defendant
Made summons on the defendant. Because remember, a lawyer
(1) Entity Service shall be made: is an officer of the court. So, if you tell the judge, “Your
without (1) On the manager of the entity; Honor, we cannot proceed with this case because my
juridical or client, the defendant, was not properly served with
personality (2) On each of the owners of the summons” – the judge can simply say, “Okay, you who
entity, if known. are a lawyer, are also an officer of the court. Will you
(2) Prisoners Service shall be made to the jail please serve this to your client, okay?”
warden, who must prepare a
return of service of summons And the judge will deliver the summons to the lawyer, and
within 5 days from actual service the lawyer will be deputized to serve the summons. So,
to the prisoner. the problem is solved.
(3) Minor or If incompetent:
Incompetent 1) The incompetent himself; Secs. 12 & 14. Service Upon Private Juridical
and Persons
2) His/her legal guardian.
SECTION 12. Service upon Domestic Private Juridical
If minor: Entity. — When the defendant is a corporation,
On his parents. partnership or association organized under the laws of the
(4) Spouses who Each of them must be served with Philippines with a juridical personality, service may be
are sued summons individually. made on the president, managing partner, general
jointly manager, corporate secretary, treasurer, or in-house
(5) Defendant Service may be done through counsel of the corporation wherever they may be found,
whose publication. or in their absence or unavailability, on their secretaries.
identity is
unknown If such service cannot be made upon any of the foregoing
(6) Public On the officer-in-charge of the persons, it shall be made upon the person who
corporation corporation. customarily receives the correspondence for the
defendant at its principal office.
Sec. 9. Service Consistent with International
Conventions In case the domestic juridical entity is under receivership
or liquidation, service of summons shall be made on the
SECTION 9. Service Consistent with International receiver or liquidator, as the case may be.
Conventions. — Service may be made through methods
which are consistent with established international Should there be a refusal on the part of the persons
conventions to which the Philippines is a party. (n) above-mentioned to receive summons despite at least
three (3) attempts on two (2) different dates, service may
be made electronically, if allowed by the court, as
Sec. 13. Duty of Counsel in Case of Improper Service
provided under Section 6 of this Rule. (11a)
of Summons
SECTION 14. Service upon Foreign Private Juridical
SECTION 13. Duty of Counsel of Record. — Where the Entities. — When the defendant is a foreign private
summons is improperly served and a lawyer makes a juridical entity which has transacted or is doing business
special appearance on behalf of the defendant to, among in the Philippines, as defined by law, service may be
others, question the validity of service of summons, the made on its resident agent designated in accordance with
counsel shall be deputized by the court to serve summons law for that purpose, or, if there be no such agent, on the
on his or her client. (n) government official designated by law to that effect, or on
any of its officers, agents, directors or trustees within the
Monte: Now, in case of improper service of summons, Philippines.
you can ask the court to dismiss because the court has
not yet acquired jurisdiction over the person of the If the foreign private juridical entity is not registered in the
defendant. Philippines, or has no resident agent but has transacted
or is doing business in it, as defined by law, such service
Although, it’s no longer a ground for a motion to dismiss, may, with leave of court, be effected outside of the
you can however incorporate that in your special Philippines through any of the following means:
affirmative defense – improper service of summons. But
that is not applicable now, under the new Rules.

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(a) By personal service coursed through the appropriate Service of Summons on a Foreign Corporation
court in the foreign country with the assistance of the
department of foreign affairs; As a general rule, a foreign corporation not doing
business here in the Philippines cannot be sued here.
(b) By publication once in a newspaper of general “Doing business” does not refer to just one isolated
circulation in the country where the defendant may be transaction, but to a series of transactions. If a foreign
found and by serving a copy of the summons and the corporation is doing business here, it can be sued through
court order by registered mail at the last known address its agent or through a government official designated
of the defendant; by law to receive it.

(c) By facsimile; Monte: If the defendant is a foreign corporation,

summons shall be served – first of all, let us take note of
(d) By electronic means with the prescribed proof of the rule. As a general rule, a foreign corporation not doing
service; or business in the Philippines cannot be sued here. If a
foreign corporation is doing business here, it can be sued
(e) By such other means as the court, in its discretion, through its agent or through a government official
may direct. (12a) designated by law to receive it for them.

Monte: Now how is summons served upon a private Agent

juridical person? Meaning, a private corporation? If a foreign corporation is doing business here in the
Philippines, then service of summons can be done
Who can receive summons for corporations? through its agent. And if the service is served on its agent,
A: If the defendant is a private corporation, the summons then the period to answer for that corporation is the same
must be served to the following officials: as that of an ordinary defendant, and that is 30 days.
1) President;
2) Managing Partner; Government Officials Designated by Law
3) General Manager; Now, if that private foreign corporation does not have an
4) Corporate Secretary; agent in the Philippines, summons can be coursed
5) Treasurer; through a government official designated by law to
6) In-house Counsel; receive the summons for and in behalf of the corporation.
7) Their secretaries; or
8) Any person who normally receives letters And who are these officials?
A: It depends on the nature of the business of the foreign
Monte: In the old Rules, this is exclusive. These are the corporation:
only persons who can receive summons on behalf of a • Insurance business – Insurance Commissioner
corporation. If you served summons to other officers, the • Banking – Central Bank Governor
summons is not properly served, and the service can be • In any other business (e.g. trading) – DTI
questioned. Secretary
There were cases before that the summons were served Service Upon Foreign Corporations Not
to the secretary of the President, and the SC said that is Registered/Not Doing Business in the Philippines
not a valid service of summons. But now, this is already
rectified.
Service upon a foreign corporation not registered in
Now, under the amendment, even the secretary of any of the Philippines, or has no resident agent but is doing
these officers can receive summons for the corporation, business in the Philippines: service may, with leave of
but only in the absence of these officers. So, if these court, be effected outside the Philippines through:
officers mentioned, if none of them is around, none of
them can receive the summons for the corporation, then, a. Personal service coursed through the court
the summons can be served on the secretary of any of in the foreign country with the assistance of
them. the DFA;
b. Publication once in a newspaper in the
Or, it can even be served on any person in the company country where the defendant resides;
who normally receives letters or communications. So, if c. By facsimile;
we have the overall secretary, or whoever is the person in d. Electronic means with proof of service; or
charge of receiving letters or communications, summons e. Other such means as the court may direct.
can be served on any of them.
Note: Service of summons through electric means can be
done through email, but with proof of service.

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 Service of Summons by the Plaintiff d) By electronic mail, if allowed by court.

When service of summons may be done by the 3) Service by Publication (Secs. 14, 15 & 16)
plaintiff:
SECTION 14. Service upon Foreign Private Juridical
a) In case of failure of service of summons by the Entities. — When the defendant is a foreign private
sheriff, the court may authorize the plaintiff to serve juridical entity which has transacted or is doing business
the summons together with the sheriff; in the Philippines, as defined by law, service may be
made on its resident agent designated in accordance with
b) In case the summon shall be served outside the law for that purpose, or, if there be no such agent, on the
judicial regional of the court that issued it; government official designated by law to that effect, or on
any of its officers, agents, directors or trustees within the
c) If the summons is returned without being served Philippines.
on any defendant, the court may order the plaintiff to
serve by other means (Rule 14, Sec. 6). If the foreign private juridical entity is not registered in the
Philippines, or has no resident agent but has transacted
Service Outside the Judicial Region or is doing business in it, as defined by law, such service
So, if the defendant is residing in another region, like may, with leave of court, be effected outside of the
Davao or Mindanao, or Manila, the court may authorize Philippines through any of the following means:
the plaintiff to serve the summons, but he should be
accompanied by the sheriff. (a) By personal service coursed through the appropriate
court in the foreign country with the assistance of the
So, it’s more convenient. The plaintiff will be the one to department of foreign affairs;
shoulder all the expenses. Pero ang uban, if the plaintiff
is very busy, he will just give the money to the sheriff. So, (b) By publication once in a newspaper of general
he will tell the sheriff, “Okay, ikaw na lang adto sa Manila. circulation in the country where the defendant may be
I will provide you with the allowance, the plane fare, the found and by serving a copy of the summons and the
hotel, etc.” court order by registered mail at the last known
address of the defendant;
Modes of Service
(c) By facsimile;
(1) Personal Service
(2) Substituted Service (d) By electronic means with the prescribed proof of
(3) Service by Publication service; or

1) Personal Service (e) By such other means as the court, in its discretion,
may direct. (12a)
− It is effected by handling a copy thereof to the
defendant in person, and if he refuses to receive and SECTION 15. Service upon Public Corporations. —
sign it, by tendering it to him. (Sec. 5) When the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General; in case
2) Substituted Service (Sec. 6) of a province, city or municipality, or like public
corporations, service may be effected on its executive
a) By leaving copies of the summons at the head, or on such other officer or officers as the law or the
defendant’s residence with some person of court may direct. (13a)
suitable age and discretion then residing therein;
or SECTION 16. Service upon Defendant Whose Identity
or Whereabouts are Unknown. — In any action where
b) By leaving the copies at the defendant’s office or the defendant is designated as an unknown owner, or the
regular place of business with some competent like, or whenever his or her whereabouts are unknown
person in charge thereof; and cannot be ascertained by diligent inquiry, within
ninety (90) calendar days from the commencement of the
c) By giving the summons to any homeowner’s action, service may, by leave of court, be effected upon
association officers, or condominium corporation; him or her by publication in a newspaper of general
or circulation and in such places and for such time as the
court may order.
− Monte: In case the sheriff is not allowed to go
inside the village or the condominium. Any order granting such leave shall specify a reasonable
time, which shall not be less than sixty (60) calendar days

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after notice, within which the defendant must answer. Sec. 16. Residents temporarily out of the Philippines.
(14a) When an action is commenced against a defendant
who ordinarily resides within the Philippines, but who
Monte: If the service of summons is done through is temporarily out of it, service may, by leave of court,
publication, then the defendant must be given not less be also effected out of the Philippines, as under the
than 60 days to file an answer. It’s up to the court if they preceding section. (Emphasis supplied)
give the defendant 70 days or 80 days to answer, that’s
up to the discretion of the court. But it must not be less The preceding section referred to in the above
than 60 days. provision is Section 15, which speaks of
extraterritorial service, thus:
This is unlike in the old Rules, which says that the
defendant has 60 days to answer. In other words, he must SEC. 15. Extraterritorial service. ─ When the
answer not beyond 60 days. Karun, minimum na na ang defendant does not reside and is not found in the
60 days. Philippines, and the action affects the personal status
Service of Summons by Publication of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant
When allowed: has or claims a lien or interest, actual or contingent,
or in which the relief demanded consists, wholly or in
1) In any action where the defendant designated is an part, in excluding the defendant from any interest
unknown owner, or the like; or whenever his therein, or the property of the defendant has been
whereabouts are unknown and cannot be attached within the Philippines, service may, by leave
ascertained by diligent inquiry (Sec. 14). Within 90 of court, be effected out of the Philippines by personal
days from commencement by action, and by leave of service as under section 6; or by publication in a
court; and newspaper of general circulation in such places and
for such time as the court may order, in which case a
− Monte: If, within 90 days from the copy of the summons and order of the court shall be
commencement of action, the defendant still sent by registered mail to the last known address of
could not be found, could not be located, cannot the defendant, or in any other manner the court may
be served with summons personally, or there deem sufficient. Any order granting such leave shall
could also be no substituted service of summons specify a reasonable time, which shall not be less
because his residence is unknown and he does than sixty (60) days after notice, within which the
not have an office – after 90 days, the plaintiff defendant must answer.
may ask the court, file a motion with leave of court
to serve summons by publication. The RTC found that since private respondent was
abroad at the time of the service of summons, she
was a resident who was temporarily out of the
2) When the defendant does not reside AND is not country; thus, service of summons may be made only
found in the Philippines, and the action affects the by publication.
personal status of the plaintiff; or relates to or the
subject of which is property within the Philippines, in RULING: We do not agree.
which the defendant has or claims a lien or interest;
or the property of the defendant has been attached In Montefalcon v. Vasquez, we said that because
within the Philippines (extraterritorial service). Section 16 of Rule 14 uses the words may and also,
it is not mandatory. Other methods of service of
3) Any action commenced against a defendant who summons allowed under the Rules may also be
ordinarily resides within the Philippines, but who is availed of by the serving officer on a defendant-
temporarily out of it, service may, by leave of court, resident who is temporarily out of the Philippines.
be also effected by publication. (Sec. 16) Thus, if a resident defendant is temporarily out of the
country, any of the following modes of service may be
MONTALBAN VS. MAXIMO, 22 SCRA 1070 resorted to: (1) substituted service set forth in section
Note: In slide, but not discussed 7 ( formerly Section 8), Rule 14; (2) personal service
outside the country, with leave of court; (3) service by
FACTS: Private respondent was a Filipino resident publication, also with leave of court; or (4) in any other
who was temporarily out of the Philippines at the time manner the court may deem sufficient.
of the service of summons; thus, service of summons
on her is governed by Section 16, Rule 14 of the In Montalban v. Maximo, we held that substituted
Rules of Court, which provides: service of summons under the present Section 7,
Rule 14 of the Rules of Court in a suit in personam
against residents of the Philippines temporarily

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absent therefrom is the normal method of service of rules regarding the service of summons is as
summons that will confer jurisdiction on the court over important as the issue of due process as that of
such defendant. In the same case, we expounded on jurisdiction.
the rationale in providing for substituted service as the
normal mode of service for residents temporarily out Section 7 also designates the persons with whom
of the Philippines. copies of the process may be left. The rule
presupposes that such a relation of confidence exists
x x x A man temporarily absent from this country between the person with whom the copy is left and
leaves a definite place of residence, a dwelling where the defendant and, therefore, assumes that such
he lives, a local base, so to speak, to which any person will deliver the process to defendant or in
inquiry about him may be directed and where he is some way give him notice thereof.
bound to return. Where one temporarily absents
himself, he leaves his affairs in the hands of one who Service of summons by publication may be resorted
may be reasonably expected to act in his place and to when the defendant is sued as an unknown owner
stead; to do all that is necessary to protect his of a thing OR he is known, but his whereabouts are
interests; and to communicate with him from time to unknown and cannot be ascertained by diligent
time any incident of importance that may affect him or inquiry, although he is just within the Philippines.
his business or his affairs. It is usual for such a man Here, leave of court is required for the service of
to leave at his home or with his business associates summons by publication.
information as to where he may be contacted in the
event a question that affects him crops up. If he does Monte: Okay, so if the defendant cannot be found or
not do what is expected of him, and a case comes up located, service of summons can be resorted to.
in court against him, he cannot just raise his voice and Whether he is in the Philippines or outside the
say that he is not subject to the processes of our Philippines.
courts. He cannot stop a suit from being filed against
him upon a claim that he cannot be summoned at his In Rem/In Personam Distinction
dwelling house or residence or his office or regular
place of business. PANTALEON VS. ASUNCION, 105 PHIL 755
If the action is an action in personam, as in the case of
Not that he cannot be reached within a reasonable collection of sum of money, summons by publication is not
time to enable him to contest a suit against him. There sufficient as the law requires personal service on the
are now advanced facilities of communication. Long defendant.
distance telephone calls and cablegrams make it
easy for one he left behind to communicate with him.
CITIZENS INSURANCE SURETY VS. MELENCIO-
HERRERA, 38 SCRA 369
Considering that private respondent was temporarily
Service of summons by publication applies only to “action
out of the country, the summons and complaint may
en rem” or “quasi en rem.” However, there is a remedy by
be validly served on her through substituted service
converting the action in personam to an action in rem or
under Section 7, Rule 14 of the Rules of Court which
quasi in rem, and this is by attaching the property of the
reads:
defendant in the Philippines. By attaching the property
under Rule 57, the court has now acquired a lien over the
SEC. 7. Substituted service. If, for justifiable causes,
property so the action now becomes an action quasi in
the defendant cannot be served within a reasonable
rem, where summons by publication is allowed.
time as provided in the preceding section, service
may be effected (a) by leaving copies of the summons
at the defendants residence with some person of Monte: Now, there was a ruling before in this case of
suitable age and discretion then residing therein, or Pantaleon vs. Asuncion and Citizens Insurance. The
(b) by leaving the copies at defendants office or rule before was that if an action was an action in
regular place of business with some competent personam, as in a collection for a sum of money,
person in charge thereof. summons by publication is not sufficient, as the law
requires personal service on the defendant. That’s the
We have held that a dwelling, house or residence ruling in Pantaleon vs. Asuncion. It’s an old case.
refers to the place where the person named in the
summons is living at the time when the service is But later on, in another case, Citizens Insurance Surety
made, even though he may be temporarily out of the vs. Melencio-Herrera, the SC qualified that ruling by
country at the time. It is, thus, the service of the saying that service of summons by publication applies
summons intended for the defendant that must be left only to actions in rem or quasi in rem. It cannot apply to
with the person of suitable age and discretion residing actions in personam like collection of sum money, breach
in the house of the defendant. Compliance with the of contract – kay personal man kuno kaayo na nga action,

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the defendant must be personally served with summons en rem” or “quasi en rem.” However, there is a remedy by
OR substituted service of summons. But dili pwede ang converting the action in personam to an action in rem or
summons by publication. quasi in rem, and this is by attaching the property of the
defendant in the Philippines. By attaching the property
But in the case of Citizens Insurance Surety, the SC said under Rule 57, the court has now acquired a lien over the
that however, there is a remedy by converting an action property so the action now becomes an action quasi in
in personam to an action in rem or quasi in rem. And this rem, where summons by publication is allowed. (Citizens
is done by attaching the property of the defendant. By Insurance Surety vs. Melencio-Herrera)
attaching the property under Rule 57, the court has now
acquired a lien over the property so the action now New Rule: The present rule expressly states that it
becomes an action quasi in rem, where summons by applies “in any action where the defendant is designated
publication is allowed. as an unknown owner, etc. Thus, it now applies to any
action, whether in personam, in rem, or quasi in rem.
So, gi-distinguish sa korte. Kung purely action in (Santos, Jr. vs. PNOC Exploration Corporation)
personam, dili pwede ang summons by publication. But if
it is an action in rem or quasi in rem, pwede ang summons Sec. 17. Extraterritorial Service
by publication.
SECTION 17. Extraterritorial Service. — When the
That distinction, however, has already been ERASED by defendant does not reside and is not found in the
the ruling of the Supreme Court in the case of Pedro Philippines, and the action affects the personal status of
Santos, Jr. vs. PNOC Exploration, Corp. the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has
PEDRO SANTOS, JR. VS. PNOC EXPLORATION or claims a lien or interest, actual or contingent, or in
CORPORATION which the relief demanded consists, wholly or in part, in
G.R. No. 170943, September 23, 2008 excluding the defendant from any interest therein, or the
property of the defendant has been attached within the
Monte: Here, the SC said: Philippines, service may, by leave of court, be effected out
of the Philippines by personal service as under Section 6;
However, if the defendant could not be personally served or as provided for in international conventions to which the
with summons despite diligent efforts to locate his Philippines is a party; or by publication in a newspaper of
whereabouts, summons by publication may be resorted general circulation in such places and for such time as the
to even if it an action in personam. The in rem/in rem court may order, in which case a copy of the summons
distinction was significant under the old rule because it and order of the court shall be sent by registered mail to
was silent as to the kind of action as to which the rule was the last known address of the defendant, or in any other
applicable. Because of this silence, the Court limited the manner the court may deem sufficient. Any order granting
application of the old rule to the in rem action only. This such leave shall specify a reasonable time, which shall
has been changed now. The present rule expressly not be less than sixty (60) calendar days after notice,
states that it applies “in any action where the defendant within which the defendant must answer. (15a)
is designated as an unknown owner, etc. (See:
Section 14, 1997 Rules of Procedure)” Thus, it now Extraterritorial Service of Summons
applies to any action, whether in personam, in rem, or
quasi in rem. When the defendant cannot be found, or is outside the
country, summons may be served by:
Monte: That ruling in the case Pedro Santos, Jr., based a) Personal service;
on Rule 14 of the 1997 Rules of Procedure, was retained b) Publication, only if:
by the 2019 Amendment. So even under the 2019 i. The case affects the personal status of
Amendment, any action where the defendant cannot be the plaintiff;
located or found, summons by publication can be resorted ii. It involves a property located in the
to. Because of the words “in any action”, we do not Philippines, in which defendant has a
distinguish anymore between an action in person, in rem claim, interest or lien; or
or quasi in rem. iii. The property of the defendant has been
attached.
SERVICE THROUGH PUBLICATION SUMMARY c) In any manner the court may deem sufficient.

Old Rule: If the action is an action in personam, as in the Personal Service

case of collection of sum of money, summons by
publication is not sufficient as the law requires personal Monte: If the plaintiff is very rich and he can afford to buy
service on the defendant. (Pantaleon vs. Asuncion) a ticket for the sheriff to go to the United States and serve
Service of summons by publication applies only to “action the summons personally, well and good. That’s fine.

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Summons can be served to the defendant in the United So, the judge said, “Okay, we will send the summons to
States personally. that address in the US by mail.”

But if not, under the amendment now, the plaintiff can ask Ordinary mail. So, they sent it there. And it was actually
the court, “Your Honor, can you authorize me? I will now received by the father because after he received it, he
be the one to go to the United States, I know where the immediately called up his friend in the Philippines who is
defendant is residing. I will be the one to go to the US a lawyer to represent him. And so, his friend here, said,
accompanied by the sheriff – we will go there, and we will “This service of summons is not valid. It was sent to you
serve the summons. So, pwerteng swertia sa sheriff, (father) by mail, and that is not allowed by our law.
makakuyog sa America. Summons can only be served by personal service,
substituted service, or by publication.”
In Any Manner the Court May Deem Sufficient
Diba, tulo ra man na ka service. Wa ma’y mail. Kanang
Monte: The third one is interesting. “In any manner the mail, okay ra na for service of pleading under Rule 13.
court may deem sufficient.” There is a case on that, the Pero ug summons gani, di pwede ang mail. But this was
case of Cariaga, et. al. vs. Malaya. done in the case of Cariaga.
CARIAGA VS. MALAYA
G.R. No, L-48375, August 13, 1986 So, the lawyer appeared in court and questioned the
jurisdiction of the court because there was improper
Service of summons by personal service on a non- service of summons.
resident defendant is allowed. Service of summons by
mail is not allowed. However, if the summons was sent The SC said, “That is already substantial compliance of
abroad, but was actually received by the defendant, then the Rule.”
the service will be considered substantial compliance
with the rules. Although service of summons by mail is not allowed here,
but you take note – let’s go back to the previous slide
Monte: This is a case where service of summons by mail (Extraterritorial Service, letter C):
is not allowed. We all know that. We cannot serve
summons by ordinary mailing. However, if summons was Extraterritorial Service of Summons
sent abroad and was actually received by the defendant,
then the service will be considered substantial compliance xxxx
with the rules.
c) In any manner the court may deem sufficient.
You know what happened here, the plaintiff is an
illegitimate child of a certain person, of his putative father, In this case of Cariaga, the Court deems it sufficient
who is already residing in the United States. The plaintiff compliance with the Rules when the summons was
filed a case here in the Philippines for recognition as an served by mail because it was actually received by the
illegitimate child of his father. The problem now is how to father.
serve the summons, considering that the defendant is
already living in the US. So, the summons cannot be Sec. 18. Residents Temporarily Out of the
served by the sheriff here. Philippines

So, the judge asked the plaintiff, “Can you afford to serve SECTION 18. Residents Temporarily Out of the
the summons by publication?” Philippines . — When any action is commenced against
a defendant who ordinarily resides within the Philippines,
The defendant replied, “I don’t have money, Sir. Mao gani but who is temporarily out of it, service may, by leave of
ko ni file ug kaso na i-recognize ko as illegitimate child court, be also effected out of the Philippines, as under the
para at least I could inherit from my father. But now, I don’t preceding Section. (16a)
have money to pay the newspaper company for
publication.” Sec. 19. Leave of Court

So, with more reason that you cannot afford to send the SECTION 19. Leave of Court. — Any application to the
sheriff to go to the US to serve the summons. So, the court under this Rule for leave to effect service in any
judge asked the young man, “But do you know where your manner for which leave of court is necessary shall be
father resides in the United States?” made by motion in writing, supported by affidavit of the
plaintiff or some person on his behalf, setting forth the
And the young man said, “Yes, I have here the complete grounds for the application. (17a)
address of my father.”

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 Sec. 20. Return of Service of Summons Within five (5) days from the filing of
When to be the complaint and payment of the
SECTION 20. Return. — Within thirty (30) calendar days served by the docket and other lawful fees (Sec.
from issuance of summons by the clerk of court and sheriff 1)
receipt thereof, the sheriff or process server, or person
authorized by the court, shall complete its service. Within Within five (5) days from the service
When the
five (5) calendar days from service of summons, the of summons, and the sheriff must
sheriff must
server shall file with the court and serve a copy of the give a copy to the lawyer of the
make the
return to the plaintiff's counsel, personally, by registered plaintiff
return
mail, or by electronic means
authorized by the Rules. State:
1) Name of recipient;
Should substituted service have been effected, the return 2) When served; and
Rule in case of
shall state the following: 3) That he made at least 3
substituted
attempts on 2 different
service of
(1) The impossibility of prompt personal service within a dates, but that he could not
summons
period of thirty (30) calendar days from issue and locate the defendant,
receipt of summons; causing him to resort to
(2) The date and time of the three (3) attempts on at least substituted service.
(2) two different dates to cause personal service and
the details of the inquiries made to locate the Sec. 21-22. Proof of Service; Proof of Service by
defendant residing thereat; and Publication

(3) The name of the person at least eighteen (18) years SECTION 21. Proof of Service. — The proof of service
of age and of sufficient discretion residing thereat, of a summons shall be made in writing by the server and
name of competent person in charge of the shall set forth the manner, place, and date of service; shall
defendant's office or regular place of business, or specify any papers which have been served with the
name of the officer of the homeowners' association or process and the name of the person who received the
condominium corporation or its chief security officer same; and shall be sworn to when made by a person other
in charge of the community or building where the than a sheriff or his or her deputy.
defendant may be found. (4a)
If summons was served by electronic mail, a printout of
Return of Service of Summons said e-mail, with a copy of the summons as served, and
the affidavit of the person mailing, shall constitute as proof
This refers to the report of the sheriff to the court that he of service. (18a)
has already served the summons.
SECTION 22. Proof of Service by Publication. — If the
Monte: Now, the sheriff must describe how the summons service has been made by publication, service may be
was served. If it was personally served on the defendant, proved by the affidavit1 of the publisher, editor, business
the return of service must specify: (1) when it was served or advertising manager, to which affidavit a copy of the
to the defendant, and (2) where. publication shall be attached and by an affidavit showing
the deposit of a copy of the summons and order for
Now, if it was done by substituted service of summons, publication in the post office, postage prepaid, directed to
the sheriff must state: the defendant by registered mail to his or her last known
(1) The name of the person who received the address. (19a)
summons at the residence of the defendant;
(2) When the summons was served How do you prove the service of summons?
(3) That the substituted service of summons was A: Proof of service of summons shall be made:
resorted to because he could not locate the 1) In writing by the server;
defendant despite several attempts; 2) Set forth the manner, place, and date of service;
(4) That he made at least three attempts on two 3) Specify any papers which have been served with
separate dates to serve the summons personally the process;
on the defendant, but it failed, so that’s why he 4) The name of the person who received the same;
resorted to substituted service. and
5) Shall be sworn when made by a person other
than a sheriff or the sheriff’s deputy.

1
Affidavit of publication

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If through publication: RULE 15
Monte: The editor-in-chief will execute an (1) affidavit of MOTIONS
publication; and then you (2) attach a newspaper copy
where the publication of summons appeared.
SECTION 1. Motion Defined. — A motion is an
application for relief other than by a pleading. (1)
If through electronic mail (not discussed, but in new
Rules): SECTION 2. Motions Must be in Writing. — All
1) A print-out of the email; motions shall be in writing except those made in open
2) Copy of the summons as served; and court or in the course of a hearing or trial.
3) Affidavit of the person mailing.
A motion made in open court or in the course of a
Sec. 23. Voluntary Appearance hearing or trial should immediately be resolved in
open court, after the adverse party is given the
opportunity to argue his or her opposition thereto.
SECTION 23. Voluntary Appearance. — The
defendant's voluntary appearance in the action shall be When a motion is based on facts not appearing on
equivalent to service of summons. The inclusion in a record, the court may hear the matter on affidavits or
motion to dismiss of other grounds aside from lack of depositions presented by the respective parties, but
jurisdiction over the person of the defendant shall (not)2 the court may direct that the matter be heard wholly
be deemed a voluntary appearance. (20a) or partly on oral testimony or depositions. (2a)
SECTION 3. Contents. — A motion shall state the
Voluntary Appearance relief sought to be obtained and the grounds upon
Any form of appearance in court, by the defendant, by his which it is based, and if required by these Rules or
agent authorized to do so, or by attorney, is equivalent to necessary to prove facts alleged therein, shall be
service except where such appearance is precisely to accompanied by supporting affidavits and other
object the jurisdiction of the court over the person of the papers. (3)
defendant [Carballo v. Encarnacion, G.R. No. L- 5675
(1953)]
MOTION DEFINED
Note: It is submitted that despite Sec. 23, Rule 14 It is an application for relief from the court but it is not
mentioning lack of jurisdiction over the person as a among the pleadings defined in Rule 6. As a rule, it must
ground to be included in a motion to dismiss, such still be in writing.
remains to be a prohibited motion under Sec. 12, Rule 15,
as the only allowable grounds for a motion to dismiss are REQUISITES FOR A VALID MOTION
lack of jurisdiction over the subject matter, litis pendencia,
res judicata, and prescription. A motion to dismiss on the a. It must be in writing (Sec. 2) except in open court.
basis of lack of jurisdiction over the defendant should be The innovation introduced by the 2019 amendment
dismissed outright. [Sec. 12, Rule 15] is that when a motion is made in open court, it must
resolved immediately by the court, right then and
It is also submitted that the allegation of any of the old there. This will prevent unnecessary delay because
grounds for a motion to dismiss under Rule 16 of the old some judges will just say “just put that in writing” so
rules of Civil Procedure would be tantamount to a dugay pa ma resolve. Now, the amendment requires
voluntary appearance by the defendant. that the judge should be firm and knowledgeable of
the rules so he can immediately resolve an oral
Source: 2019 & 2020 UP Law Review motion in open court.

b. Contents (Sec. 3) – it contains the relief being

prayed for and the laws that back it up.

c. Hearing a litigious motion is discretionary on the

court. Hearing is no longer mandatory.

2 KINDS OF MOTIONS:
1. Non-Litigious
2. Litigious – there is an issue to be discussed by
the parties. If the court feels that there is need to
present evidence, the court may call a hearing.

2 A/N: Not in the New Rules, but the word “not” was
included in Dean Monte’s slides.

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 Before the court will entertain a motion, there LITIGIOUS MOTIONS
must be proof of service of the motion. Furnish
a copy of the motion to the other party. The court
will not accept your motion if there is no proof SECTION 5. Litigious Motions. — (a) Litigious
that you have furnished a copy of the motion to motions include:
the other party. The best proof is the signature 1) Motion for bill of particulars;
of the lawyer or the secretary of the other party
who received your motion. 2) Motion to dismiss;
3) Motion for new trial;
d. Proof of service (Sec. 6)
4) Motion for reconsideration;
Dean: Once you have complied with the 5) Motion for execution pending appeal;
requirement of proof of service and your motion
is in writing, the court can now decide. 6) Motion to amend after a responsive pleading has
been filed;
NON-LITGIOUS MOTIONS 7) Motion to cancel statutory lien;
8) Motion for an order to break in or for a writ of
[SECTION 4. Hearing of Motion. — Deleted] demolition;
SECTION 4. Non-Litigious Motions. — Motions 9) Motion for intervention;
which the court may act upon without prejudicing the
rights of adverse parties are non-litigious motions. 10) Motion for judgment on the pleadings;
These motions include: 11) Motion for summary judgment;
1) Motion for the issuance of an alias summons; 12) Demurrer to evidence;
2) Motion for extension to file answer;
3) Motion for postponement; 13) Motion to declare defendant in default; and
4) Motion for the issuance of a writ of execution; 14) Other similar motions.
5) Motion for the issuance of an alias writ of
execution; (b) All motions shall be served by personal service,
6) Motion for the issuance of a writ of possession; accredited private courier or registered mail, or
7) Motion for the issuance of an order directing electronic means so as to ensure their receipt by the
the sheriff to execute the final certificate of sale; other party.
and (c) The opposing party shall file his or her opposition
8) Other similar motions. to a litigious motion within five (5) calendar days from
These motions shall not be set for hearing and shall receipt thereof. No other submissions shall be
be resolved by the court within five (5) calendar days considered by the court in the resolution of the
from receipt thereof. (n) motion.
The motion shall be resolved by the court within
A. Motion for issuance of alias summons; fifteen (15) calendar days from its receipt of the
B. Motion for extension to file answer; opposition thereto, or upon expiration of the period to
C. Motion for postponement; file such opposition. (n)
D. Motion for issuance of writ of execution’ SECTION. 6. Notice of Hearing on Litigious
E. Motion for issuance of alias writ of execution Motions; Discretionary. — The court may, in the
F. Motion for issuance of writ of possession exercise of its discretion, and if deemed necessary
G. Motion for issuance of an order directing the for its resolution, call a hearing on the motion. The
sheriff to execute final certificate of sale; notice of hearing shall be addressed to all parties
H. Other similar motions concerned, and shall specify the time and date of the
N.B. Must be resolved within 5 days. hearing. (5a)

Dean: If the other party wants to answer a motion, he must SECTION 7. Proof of Service Necessary. — No
answer it within 5 days and the court will resolve that written motion shall be acted upon by the court
within 15 days from the receipt of the without proof of service thereof, pursuant to Section
opposition/comment. 5 (b) hereof. (6a)

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Litigious Motions where the other party will have the Otherwise, those grounds that were not included in your
opportunity or would normally oppose: motion will no longer be entertained by the court.

a) Motion for bill of particulars; MOTION FOR LEAVE

b) Motion to dismiss;
SECTION 10. Motion for Leave. — A motion for
c) Motion for new trial;
leave to file a pleading or motion shall be
d) Motion for reconsideration;
accompanied by the pleading or motion sought to be
e) Motion for execution pending appeal;
f) Motion to amend after a responsive pleading has admitted. (9)
been filed;
g) Motion to cancel statutory lien; A Motion for Leave to file a pleading or motion shall be
h) Motion for an order to break in or for a writ of accompanied by the pleading or motion sought to be
demolition; admitted (Sec. 9). If not accompanied by the pleading, the
i) Motion for intervention; court will not act on your motion.
j) Motion for judgment on the pleadings;
k) Motion for summary judgment; If the motion is a motion for leave of court to file an
l) Demurrer to evidence; amended complaint or a motion for leave of court to
m) Motion to declare defendant in default; and file a supplemental pleading, the rules now provide that
n) Other similar motions. such motion shall be accompanied by the pleading so to
be admitted. If not accompanied by the pleading, the court
N.B. All motions shall be served by personal service, will not act on your motion.
accredited private courier or registered mail or electronic
means. FORM

• Litigious motions shall be opposed within five (5) SECTION 11. Form. — The Rules applicable to
calendar days from receipt. pleadings shall apply to written motions so far as
• Motion shall be resolved by the court within fifteen concerns caption, designation, signature, and other
(15) days from receipt of opposition. matters of form. (10)
• Notice of hearing on litigious motions is discretionary.
• Proof of service – no written motion shall be acted The rules applicable to pleadings shall apply to written
upon without proof of service. motion as far as caption, designation, signature, and other
matters of form (Sec. 10).
MOTION DAY
Dean: The form of a motion is the same as that of a
pleading. There is a caption, a body, a prayer or relief,
SECTION 8. Motion Day. — Except for motions and the date and time. Whatever is the caption of the main
requiring immediate action, where the court decides case, it shall also be the caption of the motion.
to conduct hearing on a litigious motion, the same
shall be set on a Friday. (7a) PROHIBITED MOTIONS

Is on a Friday afternoon, or if Friday is a non-working day, SECTION 12. Prohibited Motions. — The following
in the afternoon of the next working da (Monday). motions shall not be allowed:
OMNIBUS MOTION RULE: (a) Motion to dismiss except on the following
grounds:
SECTION 9. Omnibus Motion. — Subject to the 1) That the court has no jurisdiction over the
provisions of Section 1 of Rule 9, a motion attacking subject matter of the claim;
a pleading, order, judgment, or proceeding shall 2) That there is another action pending between
include all objections then available, and all the same parties for the same cause; and
objections not so included shall be deemed waived.
(8a) 3) That the cause of action is barred by a prior
judgment or by the statute of limitations.
It is a motion that contains several grounds as basis. (b) Motion to hear affirmative defenses;
(c) Motion for reconsideration of the court's action on
The rule is that if you file a motion in court such as a the affirmative defenses;
motion to dismiss, you have to state all the ground
available to you. You must not present a piece-meal.

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 (d) Motion to suspend proceedings without a What if the court dismissed it based on improper venue,
temporary restraining order or injunction issued by a can you file a motion for reconsideration? NO.
higher court;
4. Motion to suspend proceedings without TRO or
(e) Motion for extension of time to file pleadings,
Injunction issued by the higher court.
affidavits or any other papers, except a motion for
extension to file an answer as provided by Section
You cannot anymore ask the court to suspend the
11, Rule 11; and
proceeding if there is no TRO or PI issued by the higher
(f) Motion for postponement intended for delay, court. That is one way of removing dilatory tactics
except if it is based on acts of God, force majeure or because some lawyers will say “Your Honor, can we
physical inability of the witness to appear and testify. suspend the proceeding because we have to await for the
If the motion is granted based on such exceptions, outcome of another investigation conducted by bla bla
the moving party shall be warned that the bla.”
presentation of its evidence must still be terminated
on the dates previously agreed upon. 5. Motion for extension of time to file pleadings,
affidavits or any other papers, except a motion for
A motion for postponement, whether written or oral, extension to file an answer.
shall, at all times, be accompanied by the original
official receipt from the office of the clerk of court The only pleading that you can ask for an extension of
evidencing payment of the postponement fee under time to file is the Answer.
Section 21 (b), Rule 141, to be submitted either at the
time of the filing of said motion or not later than the 6. Motion for postponement intended for delay,
next hearing date. The clerk of court shall not accept except if it is based on acts of God, force majeure
the motion unless accompanied by the original or physical inability of the witness to appear and
receipt. (n) testify. If the motion is granted based on such
exceptions, the moving party shall be warned that
Prohibited Motions: the presentation of its evidence must still be
1. Motion to Dismiss, except: terminated on the dates previously agreed upon.
a. Lack of jurisdiction over the subject
matter Motion for postponement is allowed only on two grounds:
b. Litis pendentia a) Force Majeure
c. Res judicata, and b) Physical inability of the witness to appear – it
d. Prescription should be supported with a medical certificate
which is subscribed and sworn to before a notary
Dean: This is why Rule 16 has already been deleted from public. Such that if the doctor who issued it is not
the rules of court. But even so, you can still file a motion telling the truth, then the doctor can be sued for
to dismiss based on these three grounds. These are very perjury. It is also the illness of the lawyer or the
important grounds for dismissal because even the court party. Possible sad na. However, if the court will
can motu proprio dismiss based on these grounds. grant your motion for postponement, the order of
the court must contain a colatilla, a warning, that
2. Motion to hear affirmative defenses; the movant must still finish the presentation of his
In the former rules, you may ask the court to hear first the evidence on the dates previously agreed upon.
affirmative defenses. If the court is convinced on the
validity of your affirmative defense, the court can dismiss If you ask for postponement, be sure that you will
the case. But now, if your affirmative defenses be able to finish the presentation of evidence
incorporated in your answer is not based on any of the within the given time of 90 days. Ug mangayo ka
four grounds mentioned here, the court can right away ug postponement, the next time, you have to
resolve the affirmative defenses without you asking for a double time.
hearing. There will no longer be a trial on the merits of the
case. Payment of motion for postponement fee:
When you ask for postponement, you have to pay a fee
3. Motion for reconsideration of the court’s action (P100 with the clerk of court). Attach the receipt to the
on the affirmative defenses; motion for postponement.

If the court dismissed the complaint for the reason that it DISMISSAL WITH PREJUDICE
is clear from the allegations of the complaint that it does
not state a cause of action, can the plaintiff file a motion SECTION 13. Dismissal with Prejudice. — Subject to
for reconsideration? NO. the right of appeal, an order granting a motion to
dismiss or an affirmative defense that the cause of

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 action is barred by a prior judgment or by the statute of such notice being filed, the court shall issue an order
limitations; that the claim or demand set forth in the confirming the dismissal. Unless otherwise stated in
plaintiff's pleading has been paid, waived, abandoned the notice, the dismissal is without prejudice, except
or otherwise extinguished; or that the claim on which that a notice operates as an adjudication upon the
the action is founded is unenforceable under the merits when filed by a plaintiff who has once dismissed
provisions of the statute of frauds, shall bar the refiling in a competent court an action based on or including
of the same action or claim. (5, R16) the same claim. (1)|||

1) Res Judicata or Prescription; When a Matter of Right

2) The claim has already been paid, waived, or
abandoned or extinguished; If the defendant has not yet filed an Answer or a Motion
3) Claim in unenforceable under the statute of for Summary Judgment.
frauds.
If there is yet no answer, the plaintiff can always dismiss
EFFECT the case that he filed and all he has to do is to send a
Cannot be re-filed but it is subject to appeal. notice of dismissal to the defendant and copy furnish the
court. This is not a Motion because you are not asking a
This means that if the ground for dismissal is other than favor from the court. It is your right to withdraw. The
these three, then the dismissal is without prejudice to the appropriate term here is “Notice of Withdrawal of the
refiling. What are the other grounds for the dismissal? Complaint” or Notice of Dismissal”.

a. Lack of jurisdiction over the subject matter – This By Notice of Dismissal

time you have to state clearly that it is filed in the
court which has jurisdiction. Dismissal is without prejudice EXCEPT when the order of
b. Improper Venue dismissal provides otherwise OR under the Two
c. Lack of legal capacity to sue Dismissal Rule.
d. Failure to state a cause of action – this time, make
sure your complaint states all the elements of a Two-Dismissal Rule
cause of action. The notice of dismissal operates as an adjudication
e. Failure to comply with a condition precedent upon the merits [Sec. 1, Rule 17]

Applies when the plaintiff has

RULE 16 – MOTION TO DISMISS 1. A twice dismissed action,
(PROVISIONS EITHER DELETED OR TRANSPOSED 2. Based on or including the same claim,
IN THE 2019 AMENDMENTS) 3. In a court of competent jurisdiction. [1 Riano 490,
2014 Bantam Ed.]
RULE 17
DISMISSAL OF ACTIONS DISMISSAL UPON MOTION OF THE PLAINTIFF

The dismissal of a case is normally at the instance of the SECTION 2. Dismissal upon Motion of Plaintiff. —
defendant. This is done by way of a motion to dismiss if Except as provided in the preceding section, a
the ground is lack of jurisdiction over the subject matter, complaint shall not be dismissed at the plaintiff's
litis pendentia, res judicata, or prescription. The defendant instance save upon approval of the court and upon
can also ask for the dismissal of the case through his such terms and conditions as the court deems proper.
answer which contains the affirmative defenses. If a counterclaim has been pleaded by a defendant
prior to the service upon him or her of the plaintiff's
There are times where the case will be dismissed at motion for dismissal, the dismissal shall be limited to
the instance of the plaintiff. Is it possible? YES. the complaint. The dismissal shall be without prejudice
to the right of the defendant to prosecute his or
This could be done as a matter of right or as a matter of her counterclaim in a separate action unless within
judicial discretion. Sec.1 refers to the dismissal of the fifteen (15) calendar days from notice of the motion
complaint as a matter of right. he or she manifests his or her preference to have
his or her counterclaim resolved in the same action.
DISMISSAL UPON NOTICE BY PLAINTIFF Unless otherwise specified in the order, a dismissal
under this paragraph shall be without prejudice. A class
SECTION 1. Dismissal upon Notice by Plaintiff. — suit shall not be dismissed or compromised without the
A complaint may be dismissed by the plaintiff by filing approval of the court. (2a)|||
a notice of dismissal at any time before service of the
answer or of a motion for summary judgment. Upon

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• When the defendant has already filed an answer, the This second ground was used by some judges
plaintiff can still ask for the dismissal of the complaint before (who I would say are quite lazy, shrewd, or
but this time, there must be leave of court. “maro”).

• The dismissal does not include the counterclaim that In the 1997 rules), it is the obligation of the
has already been incorporated in the answer of the plaintiff’s lawyer to ask the court to set it for
defendant unless the defendant manifested her hearing, not the clerk of court (before 1997, it was
intention to have her counterclaim be tried in the the clerk’s job). When I became a lawyer, wala pa
same action. na ang 1997 rules of civil procedure.

Dean: The withdrawal of the case does not include The old generation lawyers are still used to the
the counterclaim, meaning the counterclaim can old rules so when the issues are joined, they will
stand if the defendant, within 15 days from receipt of just wait for the clerk of court to schedule the
the order of the court allowing the dismissal of the pretrial, not knowing that under the 1997 rules, it
complaint, manifests that she wants her counterclaim is the plaintiff’s or the plaintiff’s lawyer job to set it
to be tried in the same court. Or she may manifest for pretrial. If the plaintiff will not do anything, the
that the counterclaim be tried in a separate action. judge will also not do anything and let the case
sleep there for about a year. Dili na ipa-schedule
• Dismissal is without prejudice unless otherwise sa judge. After one year, ma shock na lang ka nga
specified. you will receive an order from the court that your
case is dismissed for failure to prosecute the case
DISMISSAL DUE TO FAULT OF PLAINTIFF for an unreasonable length of time. Many lawyers
complained about this. That is why now, under
the amended rules, dili na na obligasyon sa
SECTION 3. Dismissal Due to Fault of Plaintiff. — lawyer. We went back to the old rule.
If, for no justifiable cause, the plaintiff fails to appear
on the date of the presentation of his or 3. When plaintiff fails to comply with the Rules
her evidence in chief on the complaint, or to of Court or any order of the court for no
prosecute his or her action for an unreasonable justifiable reason or cause.
length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed When you are required by the court to comply
upon motion of the defendant or upon the court's with certain rules or any order of the court and
own motion, without prejudice to the right of the you did not comply, that will be a ground to
defendant to prosecute his or her counterclaim in dismiss your case.
the same or in a separate action. This dismissal shall
have the effect of an adjudication upon the merits, DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR
unless otherwise declared by the court. (3a) THIRD-PARTY COMPLAINT

Here, it is at the instance of the court due to the fault of SECTION 4. Dismissal of Counterclaim, Cross-
the plaintiff. Claim, or Third-Party Complaint. — The provisions
of this Rule shall apply to the dismissal of any
3 GROUNDS FOR DISMISSAL DUE TO THE FAULT counterclaim, cross-claim, or third-party complaint. A
OF PLAINTIFF: voluntary dismissal by the claimant by notice as in
Section 1 of this Rule, shall be made before a
1. When the plaintiff fails to appear on the date responsive pleading or a motion for summary judgment
of the presentation of his evidence in chief; is served or, if there is none, before the introduction of
evidence at the trial or hearing. (4)
Dean: When it is the turn of the plaintiff after the
pretrial, the initial trial will be for the presentation Provisions of Rule 17 shall apply to the dismissal of any
of evidence of the plaintiff. When the plaintiff and counterclaim, cross-claim, or third-party complaint.
the counsel fail to appear without any justifiable
reason, the court may dismiss the case for failure Voluntary dismissal by the claimant by notice as in
of the plaintiff to present evidence. Sec. 1, Rule 17 shall be made:
a. Before a responsive pleading or a motion for
2. When the plaintiff fails to prosecute his case summary judgment is served; or
for unreasonable length of time; b. If there is none, before the introduction of evidence
at trial or hearing. [Sec. 4, Rule 17]

UP BOC 2020, p. 79

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 RULE 18
PRE-TRIAL

When Conducted

Nature and Purposes

Notice of Pre-Trial

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Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 20 of 30
Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 21 of 30
Appearance of the Parties (Mandatory)

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Effect of Failure to Appear

Pre-Trial Brief

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 Record of Pre-Trial

Pre-Trial Order

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 Flowchart

Pre-Trial

Court-Annexed Mediation
(Mandatory)

Judicial Dispute
Resolution

Hearing

Judgment

Appeal

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Judgment Immediately After Pre-Trial

Pleadings-in-Intervention

RULE 19
INTERVENTION

Who May Intervene

Factors to consider whether or not to allow

intervention

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 Remedy in case intervention is denied

When and How to File

Answer To Complaint-Intervention

RULE 20
Effect of dismissal of main action on the intervention CALENDAR OF CASES

Duty of the Clerk of Court

Assignment of Cases

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 RULE 21
SUBPOENA

Definition

Grounds of a Motion to Quash Subpoena

By whom issued

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Forms and Contents of Subpoena

Subpoena for Deposition

Compelling Attendance

Service of Subpoena

Exceptions

Personal Appearance in Court

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Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 30 of 30
 RULE 22 the period to file an answer is suspended or will
COMPUTATION OF TIME momentarily stop.

SECTION 1. How to Compute Time. — In computing Monte: In other words, the motion to dismiss and the bill
any period of time prescribed or allowed by these Rules, of particulars tolls the running of the period to answer.
or by order of the court, or by any applicable statute, the
day of the act or event from which the designated period And so, when the interruption is already resolved,
of time begins to run is to be excluded and the date of when will you file your answer?
performance included. If the last day of the period, as thus
computed, falls on a Saturday, a Sunday, or a legal Now, let us say for example, you received the summons
holiday in the place where the court sits, the time shall not on December 31. So, you have 30 days to file your
run until the next working day. (1) answer. You start counting on the first day of January –
but anyway, assuming that’s not a holiday – January 1 up
SECTION 2. Effect of Interruption. — Should an act be to January 30, that’s your period to answer.
done which effectively interrupts the running of the period,
the allowable period after such interruption shall start to Now, on January 20, you filed a motion to dismiss. The
run on the day after notice of the cessation of the cause motion to dismiss interrupts the period to answer. Now, if
thereof. that motion to dismiss is denied by the court, how many
days is left for you to file your answer? Most lawyers will
The day of the act that caused the interruption shall be say that the defendant has thirteen (13) days to answer.
excluded in the computation of the period. (2) Diba? On January 20 man siya ni-file. So, it stopped. And
if denied, then it started to run all over again, and so he
Monte: Allow me to discuss first about Rule 22 because I has until January 30.
don’t think I included it in the previous lecture. But Rule
22 is a very very important Rule because many lawyers Monte: That is wrong. Because, under the Rules, if there
committed a blunder in the computation of the period and is an interruption, the day of the act or event from which
so, they may lose the right to file the appropriate pleading the designated period of time begins to run is to be
because they did not observe clearly the rules on excluded, and the date of the performance, included. So,
computation of time. the day of the interruption will not be included in the
computation.
Now, under the Rules, if you are given a certain period
of time to file a pleading, when does that period start Now, normally you would say, “You have used up 20
to run? days, and if your motion to dismiss is denied, you only
A: In the case of an answer to the complaint, for example, have the 10 days remaining to file an answer.” That is
the reglementary period to file your answer is 30 days. wrong. When you file a motion to dismiss on the 20th day,
And, the 30-day period is supposed to start on the date that day you filed the motion that causes the interruption
you actually received your summons. will not be included in the counting. And therefore, you
have used up only 19 days pa of your 30-day period.
But actually, under Rule 22, it does not start on the day Therefore, you still have 11 days to answer in the event
you received the summons. The basic rule in the that your motion to dismiss is denied.
computation of time is that you exclude the first day,
include the last day. In other words, you don’t include the Okay, suppose the court denies your motion to dismiss on
day you received your summons; you start counting the February 10. You received the order of the court on the
first day the day after. same day, February 10. Until when can you file your
answer? Now, take note, you still have you 11 days. But
So, the first day of the 30-day period will start tomorrow if when do we start counting the 11 days? On February 10,
you received the summons today. or on the day after? The answer is the day after,
February 11, not February 10. Because the day that you
Now, the important thing to remember is: what is the received the order terminating the interruption will also be
effect if there is an interruption to the period to file excluded. So, you start counting the remaining 11 days
your answer? Now, what are the instances that an on February 11. So, you have until February 21 to file your
interruption may occur? answer. That is how you compute the period of time to file
A: One instance is a motion to dismiss. If a motion to a pleading in case there is an interruption. Okay? So I
dismiss is file, the running of the reglementary period to think that’s all for Rule 22, and we now move on to the
file an answer will be momentarily suspended until the different modes of discovery.
court can resolve your motion to dismiss.

Another instance of an interruption is when the defendant

files a bill of particulars. When a bill of particulars is filed,

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 RULES 23-29 settle man amicably. To your mind, you both probably
MODES OF DISCOVERY think that you won the case. But anyway, that’s the
easiest way and the court will be saved from the hassle of
What are the different modes of discovery? listening to a long litigation or testimony in court, only to
A: The following are the different modes of discovery: end up with that decision. That’s why, in the United
1) Deposition States, they always have the discovery proceedings
a. Pending action – De Benne Esse (Rule 23); where the lawyer will use the different modes of discovery
b. Before action – In Perpetuam Rei Memoriam in order to elicit information from the opposing party, and
(Rule 24); know what are the evidences in their position.
2) Written Interrogatories to Parties (Rule 25);
3) Request for Admission of Adverse Parties (Rule And if you ask me how could it expedite the disposition of
26); the case? Well, obviously it will be expedited if, like what
4) Production or Inspection of Documents and I said a while ago, you know you are going to lose the
Things (Rule 27); case, why should you go on with the trial? Why don’t you
5) Physical and Mental Examination of Persons try to settle the case amicably?
(Rule 28);
Deposition
Monte: Now, at the outset, let me remind you that these
modes of discovery are among the most neglected Rules Now, what are these different modes of discovery?
of Court by many of our lawyers. It is sad to note that A: One of that, and the most famous of all modes of
many of our practicing lawyers are not too familiar with the discovery is deposition.
different modes of discovery. In fact, very few lawyers in
the Philippines use the modes of discovery to their Deposition
advantage. That is why, now, it has become sort of Deposition, actually, is the advanced taking of the
mandatory under our Rules for lawyers to use to the testimony of a prospective witness.
modes of discovery.
Monte: I use the word “prospective” witness. As a party
In the United States, where we copied these modes of to the case, as a plaintiff or as a defendant in a case, I can
discovery, these are very commonly used by lawyers. always take in advance – even before the start of the trial
Most of the lawyers in the United States would avail to the of the case – I can always take the testimony of a
full extent the different modes of discovery. Why? prospective witness or any person, for that matter.
Because these are the most effective methods of knowing
what are the cards on the sleeves of the other party. In Classifications of Deposition:
other words, this is the most effective method to know 1) Deposition de benne esse (Rule 23); and
what are the evidences in the hands of the other party. 2) Deposition in perpetuam rei memoriam (Rule 24).
So, if you know the evidences of the other party, and if
you know that the evidences of the adverse party is very RULE 23
strong, then, you might as well think of another way out. DEPOSITION DE BENNE ESSE (DEPOSITION
And what is that? You offer a settlement. Okay? And PENDING ACTION)
that’s the fastest way to resolve disputes. Amicable
settlement. Monte: Now, Rule 23 is also known as “deposition
pending action”. In other words, you took the deposition
You know, some people, especially some litigants in our of a prospective witness or any person for that matter
country believes that a lawyer who always succeeds in while there is already a pending case filed in court.
settling the cases he handles is not a good lawyer.
Because they prefer to see a lawyer who is very good in Now, who are those persons whom you can take a
fighting the case in court – arguing and trying to find a way deposition of?
to disadvantage the other party. By all means, you have A: The answer is any person. Anyone. You can take the
to win; by hook or by crook – that’s what they said. But deposition of your opponent. You can take the deposition
that is not the correct mentality. That should not be the of any person whom you suspect will be utilized by your
right mentality. opponent as his witness. Unhan nimo daan siya.

You know, if a case could be settled amicably, that would Monte: For example, while the case is pending for pre-
be the best way to settle disputes. Because if it is settled trial, you already know who the persons your opponent
amicably, then there would be no hard feelings because will utilize as a witness. Now, you can take the testimonies
the parties would come to an amicable settlement of their of those persons in advance through deposition.
disputes. Way nidaog, way napildi. So way nasakitan, kay
wa ma’y napildi. Di sad kapanghambog ang pikas na
nakadaog siya kay wa may daog, wa may pildi kay na

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Now, what would be the advantage of that? How do you avail of this deposition pending action?
A: The advantage of taking a deposition of the A: You, as a party to the case, may file an ex parte
prospective witness of your opponent is that that witness motion for the taking of the deposition if the deposition-
will presumably answer truthfully because he is not yet taking is with leave of court.
coached by the lawyer of the opposing party.
Monte: There are two kinds, actually, of deposition
Because if you wait for the time that that person will be pending action:
presented in court as a witness for your opponent,
probably he is already coached by the lawyer of your 1) With leave of court – after jurisdiction has been
opponent. Gitudluan na na siya unsaon ug panubag. obtained over any defendant, or over the property but
That’s a reality in actual practice. before the answer; and

Monte: Do you think lawyers would present their 2) Without leave of court – after an answer has been
witnesses on the witness stand without talking to them served.
beforehand, like a day before? Nag-practice na na sila
daan kung unsay question ug unsay answer. Ug gitudluan Deposition with Leave of Court
na na daan sa abogado unsaon pagtubag ang question.
Now, if I surprise my opponent by taking the deposition of When is deposition with leave of court?
his prospective witnesses, then, chances are, those A: Deposition requires leave of court after jurisdiction has
witnesses are not yet coached by the lawyer, and they will been obtained over any defendant, or over the property,
tell what they know. but before the answer.

Manner of Taking Depositions Now, when is jurisdiction acquired over the

defendant?
Now, the taking of deposition are of two kinds. It can either A: Upon receipt of the summons by the defendant.
be:
1) Deposition by written interrogatories; or Monte: So, when the defendant has already received the
2) Deposition by oral examinations. summons, but before he could file his answer – because
he has 30 days to file his answer, diba? – if the opposing
What’s the difference between the two? party would like to take the deposition of any prospective
A: In a deposition upon oral examination, you ask the witness, he must ask the permission of the court. He must
question directly to the witness, just like in the trial before file an ex parte motion for the taking of the deposition of
judge, and it will be recorded. a particular person. But once there is already an answer
filed by the defendant, leave of court is no longer required.
Whereas, in a deposition by written interrogatories, the
questions are prepared/written beforehand – it is in writing Deposition Without Leave of Court
– and it is sent by the deponent (the person who will
testify), and it will be read to him by the deposition officer, Monte: Once there is already an answer filed by the
and his answer will be reduced to writing. defendant, leave of court is no longer required. So, you
can already take the deposition of any person without
Monte: I will explain that later on, how deposition upon asking the permission of the court.
written interrogatories is enacted, and how deposition
upon oral examination is done. You simply notify the court or give a copy of your notice
to take deposition.
Sec. 1. Depositions Pending Action, When Taken
Example: So, for example, I am the plaintiff. I filed a case
SECTION 1. Depositions Pending Action, When May against you, and you have already filed your answer.
be Taken. — Upon ex parte motion of a party, the Now, I want to take the deposition of a prospective person
testimony of any person, whether a party or not, may be – uh, the deposition of your prospective witness. I know
taken by deposition upon oral examination or written that you are going to utilize this person as a witness in the
interrogatories. The attendance of witnesses may be case. So I want to take his testimony in advance. Do I
compelled by the use of a subpoena as provided in Rule have to ask the permission of the court? The answer is
21. Depositions shall be taken only in accordance with no. This is now a deposition without leave of court, a
these Rules. The deposition of a person confined in prison matter of right. All I have to do is to file a notice to take
may be taken only by leave of court on such terms as the deposition of Mr. So-and-so, your prospective witness – I
court prescribes. (1a) have to state the name. I will inform you, of course; copy
furnish the court.

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Now, I will be the one to decide where the deposition- (a) Any deposition may be used by any party for the
taking will be conducted, and before whom. So, if I want purpose of contradicting or impeaching the testimony
to take the deposition of a certain person, I have to secure of the deponent as a witness;
first or arrange first for a deposition officer. I have to
contact somebody to act as a deposition officer. And, the (b) The deposition of a party or of any one who at the
deposition-taking of the witness will be done in front of the time of taking the deposition was an officer, director,
deposition officer. or managing agent of a public or private corporation,
partnership, or association which is a party may be
Normally, we get as deposition officers lawyers or if not, used by an adverse party for any purpose;
branch clerks of court of the RTCs because they are also
lawyers. Diba? So, the witness will appear before the (c) The deposition of a witness, whether or not a party,
deposition officer, and it is there before the deposition may be used by any party for any purpose if the court
officer that you will ask questions. And since you invited – finds: (1) that the witness is dead; or (2) that the
because you furnished a copy of your notice to take witness resides at a distance more than one hundred
deposition – the lawyer of the other party will attend. And (100) kilometers from the place of trial or hearing, or
he will also ask questions to that person by way of cross- is out of the Philippines, unless it appears that his or
examination. That is how deposition by oral her absence was procured by the party offering the
examination is done. deposition; or (3) that the witness is unable to attend
or testify because of age, sickness, infirmity, or
Sec. 2. Scope of Examination imprisonment; or (4) that the party offering the
deposition has been unable to procure the
SECTION 2. Scope of Examination. — Unless attendance of the witness by subpoena; or (5) upon
otherwise ordered by the court as provided by Section 16 application and notice, that such exceptional
or 18 of this Rule, the deponent may be examined circumstances exist as to make it desirable, in the
regarding any matter, not privileged, which is relevant to interest of justice and with due regard to the
the subject of the pending action, whether relating to the importance of presenting the testimony of witnesses
claim or defense of any other party, including the orally in open court, to allow the deposition to be
existence, description, nature, custody, condition, and used; and
location of any books, documents, or other tangible things
and the identity and location of persons having knowledge (d) only part of a deposition is offered in evidence by a
of relevant facts. (2) party, the adverse party may require him or her to
introduce all of it which is relevant to the part
Now, what is the scope of the examination in the introduced, and any party may introduce any other
deposition? Okay, what are the questions that you are parts. (4a)
allowed to ask to the deponent? (Note: the person who
will be acting as a judge during the deposition-taking is What is the use of a deposition?
the deposition officer.) A: The deposition can be used:
A: The deponent may be examined on any matter,
provided: 1) To contradict or impeach the testimony of the
1) It is not privileged; and deponent as witness;
2) It is relevant to the subject of a pending action. − Monte: Earlier, I said, “I will take the deposition
of a person whom you intend to utilize as a
Sec. 3. Examination & Cross-Examination witness so I can compel him to come and appear
before a deposition officer; I will ask him
SECTION 3. Examination and Cross-Examination. — questions there; your lawyer can also cross-
Examination and cross-examination of deponents may examine him there; everything will be recorded:
proceed as permitted at the trial under Sections 3 to 18 of the question and answer; and then I will keep the
Rule 132. (3) records of the deposition.”
− Now, take note that if I take the deposition of a
Sec. 4. Use of Depositions person, I am not bound to use that person as my
witness. Do not think that just because I took the
SECTION 4. Use of Depositions. — At the trial or upon deposition of this person, he is already my
the hearing of a motion or an interlocutory proceeding, witness. No, that’s not the case. When I take the
any part or all of a deposition, so far as admissible under deposition of a person, I just took it in advance.
the rules of evidence, may be used against any party who It’s like preserving that person’s testimony for
was present or represented at the taking of the deposition future use.
or who had due notice thereof, in accordance with any − Now, since that witness is your witness, if later on
one of the following provisions: during the trial of the case, if you present that
person as witness, and during his testimony in

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 court, he would say something that is − But as I have said, when you take the deposition
contradicting during his previous deposition- of a person, it does not mean that you are going
taking, that’s the time I can now use the to use that person as a witness. Pareha ra nag
deposition. To contradict him. To impeach him. nipalit kag pagkaon, imong gibutang sa ref, it
− So, I will say – because, by the time he makes a doesn’t mean imo gyud nang kan-on. Pwede ra
testimony in court, he is probably already sad imo ra na ilabay later on, kay nabahaw na na
coached by a lawyer – and if he forgot that he or di naka ganahan mukaon.
made that statement before, during the − But the usual or most common ground for the
deposition-taking, na ma inconsistent na siya. So, taking of deposition here in our country is when
once he testifies in court something that is not in the witness is about to die, or the witness resides
accord with what he said in the deposition, I can more than 100km from the court, or the witness
now impeach his credibility by showing to the cannot testify because he is already very old, very
court that he is a liar. sickly, or if the witness did not appear despite the
− And I would say, “Do you recall having said that subpoena.
during the deposition-taking?” or “Do you recall − But it doesn’t mean you can only take a
having a deposition-taking on you last January deposition for these reasons. No. You can take
so-and-so?” the deposition of any prospective witness OR any
− And then he will say, “Yes.” person for that matter, just to preserve his
− “And do you recall having said this?” testimony for future use, and that you are not
− Okay, I can now confront you with the records of bound to use that person as your witness.
your own deposition or your statement in the
deposition-taking that will contradict now what Deposition Cannot Be Used If the Deponent Is
you said in court. Present or Available

2) Deposition of a party or an officer of the corporation Monte: One of the important rules in deposition is that a
may be used by the adverse party for any purpose; deposition cannot be used if the deponent is present
or available.
3) Deposition of a witness, whether or not a party in the
case, may be used by any party for any purpose if Now what does it mean?
the court finds that:
a. The witness is dead; For example, I filed a case against the defendant, and
b. The witness resides more than 100km from while the case was pending, I was told that one of my very
the court; important witnesses is dying. He has just been found by
c. The witness cannot testify because of age, the doctor to have a terminal cancer, stage 4, and that he
sickness or infirmity; or may die at any time. You do not know yet when he could
d. The witness did not appear despite the testify in court, kay wa pa nagsugod ang hearing.
subpoena issued.
So, you are afraid that by the time the hearing of the case
− Monte: Now, these four, actually, are the most will start, he will no longer be available. So, what will you
common reasons for deposition-taking. do? You will take his deposition. Preserve his testimony
Kasagaran nagtuo na makakuha man tag for future use so that when the hearing starts and he is
deposition if any of these four occur. already dead, well, you can still use his deposition. It is as
− Usually here in the Philippines, ang atong mga if he is still alive and he testified in open court.
abogado diri, mu-avail ra na sila ug deposition if
they have a witness, and their witness is about to But then, if by the time the hearing starts, that person is
die. So, the lawyer is afraid that that witness will still alive and is still capable of testifying, his deposition
no longer be in this world when the trial of the will be nothing. But, the opponent may use his deposition
case commences. So, that’s like advanced taking to contradict him, to impeach him. So, deposition cannot
of the deposition. be used as a substitute for an open testimony of the
− Or, the witness is already about to leave for the witness in court.
United States for good, he may not be coming
back to the Philippines for a long period of time – Sec. 5. Effect of Substitution of Parties
so, we preserve his testimony. And that can be
done by deposition. SECTION 5. Effect of Substitution of Parties. —
− So deposition actually is just like preserving the Substitution of parties does not affect the right to use
testimony of a person who may be used as a depositions previously taken; and, when an action has
witness in the future. Mura ra nag nagpalit kag been dismissed and another action involving the same
sud-an, imong gibutang sa refrigerator to subject is afterward brought between the same parties or
preserve it for future use. Okay? their representatives or successors in interest, all

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depositions lawfully taken and duly filed in the former having presented his deposition is to impeach or
action may be used in the latter as if originally taken contradict him.
therefor. (5)
But, if you use his deposition for other purposes, then you
What is the effect of substitution of parties? are considered to have used him as a wtiness.
A: If a deposition has already been taken, and later on,
there is substitution of one of the parties, like one of the Sec. 9. Rebutting Depositions
parties dies, and he is substituted by his heirs, his
executor or administrator of his estate, the deposition- SECTION 9. Rebutting Deposition. — At the trial or
taking can still be used for or against that party. hearing, any party may rebut any relevant evidence
contained in a deposition whether introduced by him or
Sec. 6. Objections to Admissibility her or by any other party. (9a)

SECTION 6. Objections to Admissibility. — Subject to Who Can Be a Deposition Officer (Secs. 10-11)
the provisions of Section 29 of this Rule, objections may
be made at the trial or hearing to receiving in evidence Sec. 10. Persons Before Whom Depositions May be
any deposition or part thereof for any reason which would Taken within the Philippines
require the exclusion of the evidence if the witness were
then present and testifying. (6) SECTION 10. Persons before Whom Depositions May
be Taken within the Philippines. — Within the
Deposition Officer Cannot Rule on Objection Philippines, depositions may be taken before any judge,
notary public, or the person referred to in Section 14
Monte: Now, any objections to the admissibility of the hereof. (10)
deposition cannot be ruled by the deposition officer. The
deposition officer has no authority to rule on the objection. Sec. 11. Persons before Whom Depositions May be
He will just note it down on his record. Taken in Foreign Countries

And it’s the judge who is handling the case who will SECTION 11. Persons before Whom Depositions May
eventually decide whether the objection is valid or not. be Taken in Foreign Countries. — In a foreign state or
Okay? country, depositions may be taken (a) on notice before a
secretary of embassy or legation, consul general, consul,
Sec. 7. Effect of Taking Depositions vice-consul, or consular agent of the Republic of the
Philippines; (b) before such person or officer as may be
SECTION 7. Effect of Taking Depositions. — A party appointed by commission or under letters rogatory; or (c)
shall not be deemed to make a person his or her own the person referred to in Section 14 hereof. (11)
witness for any purpose by taking his or her deposition.
(7a) If Deposition is Taken in the Philippines

Now, what is the effect of taking depositions? 1) Judge;

A: As I have said, when you take the deposition of a 2) Notary Public; or
person, you are not bound to make that person your 3) Persons authorized to administer oaths under
witness. Sec. 14.

Sec. 8. Effect of Using Depositions Monte: Now normally, before, one can be a notary public,
even if he is not yet a lawyer. But now, this is no longer
SECTION 8. Effect of Using Depositions. — The allowed, there are already so many lawyers. But I
introduction in evidence of the deposition or any part remember before, way back in the 1990s – 1995-1997, I
thereof for any purpose other than that of contradicting or was the President of the IBP for the Province of Cebu –
impeaching the deponent makes the deponent the we allowed barristers living in the municipalities to
witness of the party introducing the deposition, but this notarize documents because of the scarcity of lawyers in
shall not apply to the use by an adverse party of a the provinces. Luoy man kaayo ang mga taga-probinsya
deposition as described in paragraph (b) of Section 4 of kung naa silay panotaryohan na dokyumento. They have
this Rule. (8) to come to Cebu City to look for a lawyer who will notarize
it. So, we allowed to them to notarize – in Daanbantayan,
Monte: But if you use that person, if you present his in Santander – katong mga layo kaayo, naay munotarize
deposition in court, then you are deemed to have used diha. But usually, those that we will deputize as a notary
him as your own witness EXCEPT if the purpose of your public are barristers – katong mga nakahuman ug law,
nahagbong lang sa Bar, or some, those who have

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reached up to third year in law, pwede mag notary public. a subpoena to the witness if you can show to the judge
But we have already removed that now, kay wa namay that you have already duly notified the other party so that
scarcity of lawyers. Daghan naman kaayo nga abogado, they will attend the deposition.
so we no longer allow non-lawyers.
So, this is what you’re going to do:
Judge 1) If you have arranged a judge; or if not, a lawyer;
or if not, a clerk of court in Davao.
Monte: A judge can be a deposition officer, but it is very 2) If he will agree, you will send a notice to the other
seldom that a judge of a particular place will agree to party;
become a deposition officer. Remember, a judge acting 3) Copy-furnish the court here; and
as a deposition officer is not the judge deciding the case. 4) State: “Please take notice or please be informed
that the undersigned counsel will be conducting
For example, the case is filed here in Cebu City. It is or that a deposition-taking will be taken on Mr.
assigned or raffled to the RTC of Cebu City, Branch 12, So-and-so who is a resident of Matina, Davao del
before Judge Estela Singco. Now, you have a witness Sur or a resident of Davao City before Atty. So-
who is residing in Davao. Now, you cannot compel that and-so of Davao City, and the deposition shall be
witness to come to Cebu if he does not want to because taken at the law office of Atty. So-and-so on (state
of viatory right – he resides more than 100km away from the date and the time).
Cebu City. So, di nimo mapugos.
So, you now invite that person in Davao, the deponent, to
How could you get his testimony? The only way you come to the office of Atty. So-and-so, the deposition
can get his testimony if he will not come is you go to officer.
Davao and take his testimony in Davao by way of
deposition. Now, you notified the other party, so the other party also
has to go to Davao and participate because they will ask
Now, how are you going to do that? You arrange for cross-examination questions.
someone in Davao to act as a deposition officer. He must
agree first. Sabuton nimo daan. So, if naa kay kaila na Can the other party object? Yes, and they can ask the
huwes sa Davao, musugot, fine. But normally, judges will judge handling the case here in Cebu, Judge Singco, for
not – they say, “We are very busy with our own cases, we example, “Your Honor, please. Going to Davao is very
will not agree to become a deposition officer. Maybe, my expensive, and my client cannot afford. He is just an
clerk of court. You can ask him or her.” ordinary laborer. And he cannot afford to go there and
even buy a ticket for me going there. So, can we not make
Normally, in actual practice, what we do here is we will the taking of the deposition through written
look for a lawyer in Davao – if we have a friend who is a interrogatories instead of oral examination?”
lawyer in Davao – we will ask him if he will be willing to
act as a deposition officer. That lawyer must be a notary Of course, your opponent can do that and the judge may
public, and authorized to administer oaths kay notary grant it. The judge has the discretion or authority to decide
public man ka. Pero kung di sad siya notary public, then whether the deposition shall be taken by oral examination
he cannot be a deposition officer. So, a lawyer in Davao. or written interrogatory.

Or, if not, ang most common jud kuhaon na deposition Initially, ikaw ang party, ikaw ang magbuot kung i-oral
officer kanang clerk of court sa Regional Trial Court kay examination or i-written interrogatory. If you decide na i-
lawyer man sad na siya. And you know one advantage if oral examination, muadto jud ka sa Davao, personally to
you take the clerk of court as a deposition officer, he conduct an examination, fine. But if the other party could
already has the required “complements”, shall we say, not afford to go there, then chances are the court will rule
because he already has, in the court, under him or her, in favor of written interrogatory.
stenographers, interpreters – pwede na na niya gamiton.
Because in the deposition-taking, mura gyud na ug actual So, that is how the deposition is done in another place or
hearing except that the one hearing the case is not a a province within the Philippines.
judge. He is a deposition officer. And his job is only to take
note of the deposition of the witness. Any person authorized to administer oaths

If you ask a judge in Davao, and he is willing, fine. The Monte: Like the clerk of court, they can administer oaths;
advantage of getting a judge in that place as a deposition or lawyers in the government. Even if they are not notaries
officer is that he can issue a subpoena to the witness, and public, but if by the nature of their function as a public
compel the witness to come to him. Otherwise, ma- official, they are authorized to administer oaths, then they
contempt ka. That is the disadvantage of getting a lawyer can also be a deposition officer.
kay wa man siyay power ana. But the judge can only issue

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Now, these are the persons who are allowed to be a deposition or question prepared by Atty. So-and-so in
deposition officers in the Philippines. the Philippines. So, pangutan-on siya.

If Deposition is Taken Outside the Country His answers are recorded. And after that, the cross-
examination questions of the other party will be asked.
1) On notice before a secretary of embassy or The answers will be recorded. So that the Philippine
legation1, consul general, consul, vice-consul, or Consul will send back to the requesting party and copy-
consular agent of the Republic of the Philippines; furnish to the court the question and answers of the
2) Before such person or officer as may be deponent.
appointed by commission or under letters
rogatory2; or That is deposition upon written interrogatories.
3) The person referred to in Sec. 14 thereof.
Now, the problem is that is what if the witness in the
Who is the person referred to in Sec. 14? United States is not cooperative? He was invited by
A: Any person authorized to administer oaths in that the consul to come to his office, but he did not go
foreign country can also be a deposition officer. there. Can he be compelled by the consul?
A: The answer is no.
Monte: Kana kung deposition by oral examination. Kung
written interrogatory, the same persons gihapon. Why?
A: The consul does not have contempt power; it is only
If the deposition is taken outside the country, how is the court who has contempt power.
it done? Can it be done by oral examination also or
by written interrogatories? So, if the consul who was appointed by the court here as
A: Yes, it can be done by oral examination or written a deposition officer through letter commission –
interrogatories. because if magpa-appoint ka, you want the Philippine
Consul in LA, California as the deposition officer, you will
Monte: But if you are very rich, you can afford to send ask the court to issue an appointment appointing the
your lawyer to the US to question the witness there, if the consul as commissioner to conduct the deposition – so,
witness is already residing in Los Angeles, California. But appointment by commission.
the problem is the other party cannot afford – chances
are, the court will say, “No. Do not conduct a deposition Since the consul does not have the power to compel the
by oral examination in the United States. You just put all witness to come, what will happen now? The consul will
your questions in writing, and then we send it to the US report to the court that the witness is uncooperative. So,
for answer.” what is the remedy of the requesting party here? He can
ask the court to issue a letter rogatory.
So, in that case, if the deposition will be taken outside the
country, it can be done before the parties enumerated Letter Rogatory
above.
Monte: Now, letter rogatory is a letter from our court in
So, if the court will not allow you to conduct the deposition the Philippines addressed to judge or court in Los
by oral examination, you just put all your questions in Angeles, requesting said judge or court in Los Angeles to
writing. You ask the Philippine Embassy or the Philippine be the one to act as deposition officer, and ask the
Consul in LA, California to be the deposition officer. You questions to that witness in Los Angeles. That is letter
send your questions to him. The other party will also send rogatory: court-to-court request.
– because you furnished a copy of your questions to the
opposing party, and they will also prepare their questions If that person will still not obey the order of the judge in
by way of cross-examination. The appointed deposition Los Angeles, he can already be cited in contempt by the
officer in the US, who is the Philippine Consul in that American judge; disobedience to the lawful authority of
place, will now “invite”, not subpoena – I think the proper the judge. That is the only way you can compel a person
word to use is “invite” – will invite that person to come to residing abroad to answer the written interrogatories that
the Philippine Consulate in order to answer the questions you sent to him.
that were sent to him.

So if that other person (the deponent) will go there, to the

Philippine Consulate, the Consul will say, “Okay, there’s

1 2
A legation was a diplomatic representative office of lower rank than an Letters rogatory or letters of request are a formal request from a court
embassy. Where an embassy was headed by an ambassador, a to a foreign court for some type of judicial assistance. The most common
legation was headed by a minister. Ambassadors outranked ministers remedies sought by letters rogatory are service of process and taking of
and had precedence at official events. evidence.

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 COMMISSION AND LETTERS ROGATORY DEPOSITION UPON ORAL EXAMINATION

SECTION 12. Commission or Letters Rogatory. — SECTION 15. Deposition upon Oral Examination;
A commission or letters rogatory shall be issued only Notice; Time and Place. — A party desiring to take
when necessary or convenient, on application and the deposition of any person upon oral examination
notice, and on such terms and with such direction as shall give reasonable notice in writing to every other
are just and appropriate. Officers may be designated in party to the action. The notice shall state the time and
notices or commissions either by name or descriptive place for taking the deposition and the name and
title and letters rogatory may be addressed to the address of each person to be examined, if known, and
appropriate judicial authority in the foreign country. if the name is not known, a general description
sufficient to identify him or her or the particular class or
A letter commission is an appointment made by our court group to which he or she belongs. On motion of any
here to a qualified person living abroad to act as a party upon whom the notice is served, the court may
deposition officer (consul, vice-consul, consular agent of for cause shown enlarge or shorten the time. (15a)
the PH, or secretary of embassy or legation of the PH, or
any lawyer or person authorized to administer oath in that If there is already an answer, leave of court is no longer
country. required so the requesting party will send a notice to take
deposition of a prospective witness. He will notify the
The problem with letter commission is that deposition other party so the other party can participate and even ask
officer does not have coercive power over the witness. cross-examination questions. The requesting party will
inform the court where the case is pending.
If the witness will not come, what is the remedy of the
requesting party in the Philippines? If the witness is residing in Davao City and you have a
He will ask the court for the issuance of a letters rogatory. lawyer friend in Davao, you may request your lawyer
It is the request of our court in the PH for a judge in that friend to be the deposition officer. That lawyer would
foreign country to take the deposition of the witness. That normally have to hire a stenographer. There is a payment
judge will have coercive power because he can cite that for the deposition officer. If you want to save money, you
witness in contempt. might as well ask the clerk of court in Davao to be the one
to act as the deposition officer because they are
Our court is requesting its counterpart court in that country government officials (they’re not even supposed to
for some cooperation under the theory of reciprocity receive payment, but as a token of gratitude, you will give
where our court will promise that in the event that that something to the clerk of court). The advantage of making
foreign court will make a request, they will also be the COC as the deposition officer is that he already has
accommodated. the stenographer, etc.

DISQUALIFICATION FOR A DEPOSITION OFFICER The opposing party will have to attend the deposition if it
is by oral examination. Mura gyud ug hearing in the court
SECTION 13. Disqualification by Interest. — No except the one listening is not a judge but a deposition
deposition shall be taken before a person who is a officer.
relative within the sixth degree of consanguinity or
affinity, or employee or counsel of any of the parties; or During the deposition taking, the party can object to the
who is a relative within the same degree, or employee line of questions asked but the deposition officer
of such counsel; or who is financially interested in the cannot rule on the objections even if the deposition
action. (13) officer is a judge in Davao. The one who will rule on the
objection is the judge of the court where the case is
SECTION 14. Stipulations Regarding Taking of pending (Section 17).
Depositions. — If the parties so stipulate in writing,
depositions may be taken before any person
authorized to administer oaths, at any time or place, in
accordance with these Rules, and when so taken may SECTION 17. Record of Examination; Oath;
be used like other depositions Objections. — The officer before whom the deposition
is to be taken shall put the witness on oath and shall
The deposition officer should not be: personally, or by someone acting under his or
• A relative within the sixth degree of consanguinity or her direction and in his or her presence, record the
affinity, or employee or counsel of any of the parties; testimony of the witness. The testimony shall be taken
• or who is a relative within the same degree, or stenographically unless the parties agree otherwise. All
employee of such counsel. objections made at the time of the examination to the
qualifications of the officer taking the deposition, or to
the manner of taking it, or to the evidence presented,

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 or to the conduct of any party, and any other objection deposition may then be used as fully as though signed,
to the proceedings, shall be noted by the officer upon unless on a motion to suppress under Section 29 (f) of this
the deposition. Evidence objected to shall be taken Rule, the court holds that the reasons given for the refusal
subject to the objections. In lieu of participating in the to sign require rejection of the deposition in whole or in
oral examination, parties served with notice of taking a part. (19a)
deposition may transmit written interrogatories to the
officers, who shall propound them to the witness and During the trial of the case, the lawyer of the
record the answers verbatim. (17a) requesting party will tell the court: “Your Honor, the
next witness is Juan Dela Cruz who is residing in Davao
SECTION 18. Motion to Terminate or Limit City. Considering that he cannot come to Cebu City, we
Examination. — At any time during the taking of the have decided to take the deposition of that witness. It was
deposition, on motion or petition of any party or of the conducted before Atty. Abo Gado of Davao City in the
deponent and upon a showing that the examination is presence of the opposing party and his lawyer.”
being conducted in bad faith or in such manner as
unreasonably to annoy, embarrass, or oppress the The judge will say: “Clerk of Court, will you please bring
deponent or party, the court in which the action is the envelope containing the transcript”. The transcript will
pending or the Regional Trial Court of the place where be considered as a transcript of stenographic notes in a
the deposition is being taken may order the officer hearing conducted by the judge, as if it was conducted
conducting the examination to cease forthwith from before that judge.
taking the deposition, or may limit the scope and
manner of the taking of the deposition, as provided in The other party will now call the attention of the
Section 16 of this Rule. If the order made terminates judge: “Your Honor, during the deposition taken in
the examination, it shall be resumed thereafter only Davao, there was that question asked by the requesting
upon the order of the court in which the action is party found in page 5 of the transcript which is Question
pending. Upon demand of the objecting party or no. 18. I made an objection. May we ask the court to make
deponent, the taking of the deposition shall be a ruling on the objection?” The judge will either sustain or
suspended for the time necessary to make a notice for overrule.
an order. In granting or refusing such order, the court
may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court SECTION 20. Certification and Filing by Officer. —
may deem reasonable. (18)||| The officer shall certify on the deposition that the
witness was duly sworn to by him or her and that the
After the deposition is taken, the deposition officer will deposition is a true record of the testimony given by the
then transcribe or order the stenographer to immediately witness. He or she shall then securely seal the
transcribe the questions and answers. The witness will deposition in an envelope indorsed with the title of the
then be asked to read everything and will be asked if action and marked "Deposition of (here insert the name
he/she agrees that the questions and answers are correct of witness)" and shall promptly file it with the court in
or accurate. If the witness agrees that it is accurate, the which the action is pending or send it by registered mail
stenographic notes will be placed and sealed in a brown to the clerk thereof for filing. (20a)
envelope marked with the caption of the case. It will be SECTION 21. Notice of Filing. — The officer taking
addressed and sent to the clerk of court of the court where the deposition shall give prompt notice of its filing to all
the case is pending. the parties. (21)
SECTION 22. Furnishing Copies. — Upon payment
SECTION 19. Submission to Witness; Changes;
of reasonable charges therefor, the officer shall furnish
Signing. — When the testimony is fully transcribed, the
a copy of the deposition to any party or to the deponent.
deposition shall be submitted to the witness for
(22)
examination and shall be read to or by him or her, unless
such examination and reading are waived by the witness SECTION 23. Failure to Attend of Party Giving
and by the parties. Any changes in form or substance Notice. — If the party giving the notice of the taking of
which the witness desires to make shall be entered upon a deposition fails to attend and proceed therewith and
the deposition by the officer with a statement of the another attends in person or by counsel pursuant to the
reasons given by the witness for making them. The notice, the court may order the party giving the notice
deposition shall then be signed by the witness, unless the to pay such other party the amount of the reasonable
parties by stipulation waive the signing or the witness is ill expenses incurred by him or her and his or her counsel
or cannot be found or refuses to sign. If the deposition is in so attending, including reasonable attorney's fees.
not signed by the witness, the officer shall sign it and state (23a)
on the record the fact of the waiver or of the illness or
SECTION 24. Failure of Party Giving Notice to
absence of the witness or the fact of the refusal to sign
Serve Subpoena. — If the party giving the notice of the
together with the reason given therefor, if any, and the

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taking of a deposition of a witness fails to serve a designated in the notice or that it shall not be taken
subpoena upon him or her and the witness because of except upon oral examination. (28)
such failure does not attend, and if another party
attends in person or by counsel because he or
she expects the deposition of that witness to be taken, 1. Written interrogatories shall be served upon
every party with notice.
the court may order the party giving the notice to pay
2. The notice shall state the name and address of
such other party the amount of the reasonable
the person to answer it.
expenses incurred by him or her and his or her counsel
3. The name, title, and address of the deposition
in so attending, including reasonable attorney's fees.
officer.
(24a)
4. Within 10 days, the person asked may serve
cross-interrogatories.
DEPOSITION UPON WRITTEN INTERROGATORIES 5. Deposition officer shall give notice of its filing in
court (Sec. 27).
SECTION 25. Deposition upon Written
Interrogatories; Service of Notice and of Monte: It is a kind of deposition-taking where only the
Interrogatories. — A party desiring to take the deponent and the deposition officer will appear. The
deposition of any person upon written interrogatories witness in Davao will be asked to appear before Atty. Abo
shall serve them upon every other party with a notice Gado at his law office because the written questions have
stating the name and address of the person who is to been mailed to him. The opposing party will also prepare
answer them and the name or descriptive title and their own questions and mail it to the deposition officer.
address of the officer before whom the deposition is to
be taken. Within ten (10) calendar days thereafter, a The lawyer will now say: “There are two sets of
party so served may serve cross-interrogatories upon questions that you will answer. The first set is prepared
the party proposing to take the deposition. Within five by the counsel for the plaintiff.” The deposition officer will
(5) calendar days thereafter the latter may serve re- note down the answers.
direct interrogatories upon a party who has served
cross-interrogatories. Within three (3) calendar days After that, he will read the cross-interrogatory questions
after being served with re-direct interrogatories, a party of the other party. Everything will be placed and sealed in
may serve recross-interrogatories upon the party a brown envelope and sent to the court in Cebu City.
proposing to take the deposition. (25a)|||
SECTION 29. Effect of Errors and Irregularities in
SECTION 26. Officers to Take Responses and Depositions. —
Prepare Record. — A copy of the notice and copies of
(a) As to notice. — All errors and irregularities in the
all interrogatories served shall be delivered by the party
notice for taking a deposition are waived unless written
taking the deposition to the officer designated in the
objection is promptly served upon the party giving the
notice, who shall proceed promptly, in the manner
notice.
provided by Sections 17, 19 and 20 of this Rule, to take
the testimony of the witness in response to the (b) As to disqualification of officer. — Objection to
interrogatories and to prepare, certify, and file or mail taking a deposition because of disqualification of the
the deposition, attaching thereto the copy of the notice officer before whom it is to be taken is waived unless
and the interrogatories received by him or her. (26a) made before the taking of the deposition begins or as
soon thereafter as the disqualification becomes known
SECTION 27. Notice of Filing and Furnishing
or could be discovered with reasonable diligence.
Copies. — When a deposition upon interrogatories is
filed, the officer taking it shall promptly give notice (c) As to competency or relevancy of evidence. —
thereof to all the parties and may furnish copies to them Objections to the competency of a witness or the
or to the deponent upon payment of reasonable competency, relevancy, or materiality of testimony are
charges therefor. (27) not waived by failure to make them before or during the
taking of the deposition, unless the ground of the
SECTION 28. Orders for the Protection of Parties
objection is one which might have been obviated or
and Deponents. — After the service of the
removed if presented at that time.
interrogatories and prior to the taking of the testimony
of the deponent, the court in which the action is (d) As to oral examination and other particulars. —
pending, on motion promptly made by a party or a Errors and irregularities occurring at the oral
deponent, and for good cause shown, may make any examination in the manner of taking the deposition, in
order specified in Sections 15, 16 and 18 of this Rule the form of the questions or answers, in the oath or
which is appropriate and just or an order that the affirmation, or in the conduct of the parties and errors
deposition shall not be taken before the officer of any kind which might be obviated, removed, or cured
if promptly prosecuted, are waived unless reasonable

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 objection thereto is made at the taking of the RULE 24
deposition. DEPOSITIONS BEFORE ACTION OR PENDING
APPEAL
(e) As to form of written interrogatories. —
Objections to the form of written interrogatories
submitted under Sections 25 and 26 of this Rule are SECTION 1. Depositions before Action; Petition. —
waived unless served in writing upon the party A person who desires to perpetuate his or her own
propounding them within the time allowed for serving testimony or that of another person regarding any
succeeding cross or other interrogatories and within matter that may be cognizable in any court of the
three (3) calendar days after service of the last Philippines, may file a verified petition in the court of the
interrogatories authorized. place of the residence of any expected adverse party.
(1a)
(f) As to manner of preparation. — Errors and
irregularities in the manner in which the testimony is
transcribed or the deposition is prepared, signed, Petition to take deposition before action:
certified, sealed, indorsed, transmitted, filed, or 1. Must be done with leave of court.
otherwise dealt with by the officer under Sections 17, 2. In the court of the place where the expected
19, 20 and 26 of this Rules are waived unless a motion adverse party resides.
to suppress the deposition or some part thereof is
made with reasonable promptness after such defect is, CONTENTS OF THE PETITION
or with due diligence might have been, ascertained.
(29a)
SECTION 2. Contents of Petition. — The petition
shall be entitled in the name of the petitioner and shall
A/N: Please note Sec. 16 of this Rule. It was not show: (a) that the petitioner expects to be a party to an
discussed in class, but for purposes of reference, here it action in a court of the Philippines but is presently
is: unable to bring it or cause it to be brought; (b) the
subject matter of the expected action and his or
Sec. 16. Orders for the Protection of Parties & her interest therein; (c) the facts which he or
Deponents she desires to establish by the proposed testimony and
his or her reasons for desiring to perpetuate it; (d) the
SECTION 16. Orders for the Protection of Parties and names or a description of the persons he or
Deponents. — After notice is served for taking a she expects will be adverse parties and their
deposition by oral examination, upon motion seasonably addresses so far as known; and (e) the names and
made by any party or by the person to be examined and addresses of the persons to be examined and the
for good cause shown, the court in which the action is substance of the testimony which he or she expects to
pending may make the following orders: elicit from each, and shall ask for an order authorizing
the petitioner to take the depositions of the persons to
(a) That the deposition shall not be taken; be examined named in the petition for the purpose of
(b) That the deposition may be taken only at some perpetuating their testimony. (2a)
designated place other than that stated in the notice;
(c) That the deposition may be taken only on written
Contents:
interrogatories;
1. That the petitioner expects to be a party to an
(d) That certain matters shall not be inquired into;
action in a court of the Philippines but is presently
(e) That the scope of the examination shall be held with
unable to bring it or cause it to be brought;
no one present except the parties to the action and
2. The subject matter of the expected action and his
their officers or counsel;
or her interest therein;
(f) That after being sealed the deposition shall be
3. The facts which he or she desires to establish by
opened only by order of the court;
the proposed testimony and his or her reasons for
(g) That secret processes, developments, or research
desiring to perpetuate it;
need not be disclosed; or
4. The names or a description of the persons he or
(h) That the parties shall simultaneously file specified
she expects will be adverse parties and their
documents or information enclosed in sealed
addresses so far as known;
envelopes to be opened as directed by the court.
5. The names and addresses of the persons to be
examined and the substance of the testimony
The court may make any other order which justice
which he or she expects to elicit from each, and
requires to protect the party or witness from annoyance,
shall ask for an order authorizing the petitioner to
embarrassment, or oppression. (16a)
take the depositions of the persons to be
examined named in the petition for the purpose
of perpetuating their testimony.

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NOTICE AND SERVICE; ORDER AND EXAMINATION may make a motion in the said court for leave to take
the depositions, upon the same notice and service
SECTION 3. Notice and Service. — The petitioner thereof as if the action was pending therein. The motion
shall serve a notice upon each person named in the shall state (a) the names and addresses of the persons
petition as an expected adverse party, together with a to be examined and the substance of the testimony
copy of the petition, stating that the petitioner will apply which he or she expects to elicit from each; and (b) the
to the court, at a time and place named therein, for the reason for perpetuating their testimony. If the court
order described in the petition. At least twenty finds that the perpetuation of the testimony is proper to
(20) calendar days before the date of the hearing, the avoid a failure or delay of justice, it may make an order
court shall cause notice thereof to be served on the allowing the depositions to be taken, and thereupon the
parties and prospective deponents in the manner depositions may be taken and used in the same
provided for service of summons. (3a) manner and under the same conditions as are
prescribed in these Rules for depositions taken in
SECTION 4. Order and Examination. — If the court is pending actions. (7a)|||
satisfied that the perpetuation of the testimony may
prevent a failure or delay of justice, it shall make an WHEN TAKEN:
order designating or describing the persons whose 1. During the pendency of an appeal.
deposition may be taken and specifying the subject 2. Even before appeal is filed, but, the period to
matter of the examination and whether the depositions appeal has not yet expired.
shall be taken upon oral examination or written
interrogatories. The depositions may then be taken in WHERE TO FILE:
accordance with Rule 23 before the hearing. (4) In the court which renders the judgment (court of origin,
not the appellate court).
The petitioner shall serve a notice upon each person
named in the petition as an expected adverse party, HOW:
together with a copy of the petition, stating that the Same as Rule 23.
petitioner will apply to the court, at a time and place
named therein, for the order described in the petition., Monte: Deposition pending appeal means there was a
case filed, in fact, it has already been decided and the
The court will decide whether the deposition shall be by decision of the court was appealed. The deposition is
oral examination or by written interrogatories. taken during the pendency of the appeal of even before it
is filed but the period to appeal has not yet expired.
SECTION 5. Reference to Court. — For the purpose Why do you have to take the deposition of a
of applying Rule 23 to depositions for perpetuating prospective witness when there is no more trial?
testimony, each reference therein to the court in which
There are times when the appellate court may require the
the action is pending shall be deemed to refer to the
parties to present additional evidence. If you expect to
court in which the petition for such deposition was filed.
present additional testimonial evidence but that witness is
(5)
dying or about to leave the country and may not be
SECTION 6. Use of Deposition. — If a deposition to available at the time you will be required to present, then
perpetuate testimony is taken under this Rule, or if, you can perpetuate his testimony. This is under Rule 24.
although not so taken, it would be admissible in
evidence, it may be used in any action involving the RULE 25
same subject matter subsequently brought in INTERROGATORIES TO PARTIES
accordance with the provisions of Sections 4 and 5 of
Rule 23. (6) SECTION 1. Interrogatories to Parties; Service
Thereof. — Upon ex parte motion, any party desiring
to elicit material and relevant facts from any adverse
DEPOSITIONS PENDING APPEAL parties shall file and serve upon the latter written
interrogatories to be answered by the party served or,
SECTION 7. Depositions Pending Appeal. — If an if the party served is a public or private corporation or
appeal has been taken from a judgment of a court, a partnership or association, by any officer thereof
including the Court of Appeals in proper cases, or competent to testify in its behalf. (1a)|
before the taking of an appeal if the time therefor has
not expired, the court in which the judgment was SECTION 2. Answer to Interrogatories. — The
rendered may allow the taking of depositions of interrogatories shall be answered fully in writing and
witnesses to perpetuate their testimony for use in the shall be signed and sworn to by the person making
event of further proceedings in the said court. In such them. The party upon whom the interrogatories have
case the party who desires to perpetuate the testimony been served shall file and serve a copy of the answers

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 on the party submitting the interrogatories within fifteen SCOPE AND USE OF INTERROGATORIES
(15) calendar days after service thereof, unless the
court, on motion and for good cause shown, extends or
SECTION 5. Scope and Use of Interrogatories. —
shortens the time. (2a)|||
Interrogatories may relate to any matters that can be
inquired into under Section 2 of Rule 23, and the
Is leave of court required before one can avail of
answers may be used for the same purposes provided
interrogatories to parties?
in Section 4 of the same Rule. (5)
The same as Sec. 1 of Rule 23. Leave of court is required
if there is no Answer filed yet. If the defendant has already
filed an Answer, leave of court is no longer required. You can ask any question provided they are not privileged
and they are relevant to the case.
Interrogatories to parties are written questions directly
addressed to your opponent in the case. Such opponent EFFECT OF FAILURE TO SERVE WRITTEN
will have to answer within 15 calendar days after service INTERROGATORIES
thereof, unless the court, on motion and for good cause
shown, extends or shortens the time. SECTION 6. Effect of Failure to Serve Written
Interrogatories. — Unless thereafter allowed by the
Note: As compared to a bill of particulars which is court for good cause shown and to prevent a failure of
directed to a pleading and designed to seek for a more justice, a party not served with written interrogatories
definite statement or for particulars in matters not may not be compelled by the adverse party to give
availed with sufficient definiteness in a pleading, testimony in open court, or to give a deposition pending
interrogatories are not directed against a particular appeal. (6)
pleading and what is sought is the disclosure of all
material and relevant facts from a party. [1 Riano 447, A party not served with written interrogatories may not be
2016 Bantam Ed.] compelled by the adverse party to give the testimony in
open court, or to give a deposition pending appeal.
Difference Between Written Interrogatories in Rule
23 From Interrogatories Under Rule 25: This is to compel parties to avail of the modes of
discovery. If there are questions you really want to ask the
1. There is a deposition officer in Rule 23 while there opposing party, do not wait for trial to begin. If you do not
is none in Rule 25; avail of this mode of discovery, the dire consequence is
2. Written questions are coursed through a you will no longer be allowed to compel the adverse party
deposition officer while in Rule 25, the questions to give testimony in open court or to give deposition
are directed to the opposing party; pending appeal.
3. Under Rule 23, questions may be addressed to
any persons while in Rule 25 it should be RULE 26
addressed to a party only. ADMISSION BY ADVERSE PARTY

OBJECTION TO INTERROGATORIES REQUEST FOR ADMISSION

SECTION 3. Objections to Interrogatories. — SECTION 1. Request for Admission. — At any time

Objections to any interrogatories may be presented to after issues have been joined, a party may file and
the court within ten (10) calendar days after service serve upon any other party a written request for the
thereof, with notice as in case of a motion; and answers admission by the latter of the genuineness of any
shall be deferred until the objections are resolved, material and relevant document described in and
which shall be at as early a time as is practicable. (3a) exhibited with the request or of the truth of any material
and relevant matter of fact set forth in the request.
Copies of the documents shall be delivered with the
Within ten (10) days after service thereof, with notice as
request unless copies have already been furnished. (1)
in case of a motion.

NUMBER OF INTERROGATORIES At any time after issues have been joined, a party may file
and serve upon any other party a written request for the
admission by the latter of the genuineness of any material
SECTION 4. Number of Interrogatories. — No party
and relevant document described.
may, without leave of court, serve more than one set of
interrogatories to be answered by the same party. (4)
Leave of court is not necessary here. This is because
there is already an answer when you avail of this mode of
Not more than one, without leave of court. discovery. The issues have already been joined. You can

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request for admission of the genuineness of any material WITHDRAWAL OF ADMISSION; EFFECT OF
and relevant document. FAILURE TO FILE AND SERVE REQUEST FOR
ADMISSION
What is the difference of Rule 25 and Rule 26?
In rule 26, you are requesting for the admission of the
SECTION 3. Effect of Admission. — Any admission
genuineness of any material and relevant document. In
made by a party pursuant to such request is for the
rule 25, you are asking for the opposing party to answer
purpose of the pending action only and shall not
some questions maybe to admit certain facts but not
documents. constitute an admission by him or her for any other
purpose nor may the same be used against him or
IMPLIED ADMISSION her in any other proceeding. (3a)
SECTION 4. Withdrawal. — The court may allow the
party making an admission under this Rule, whether
SECTION 2. Implied Admission. — Each of the
express or implied, to withdraw or amend it upon such
matters of which an admission is requested shall be
terms as may be just. (4)
deemed admitted unless, within a period designated in
the request, which shall not be less than fifteen SECTION 5. Effect of Failure to File and Serve
(15) calendar days after service thereof, or within such Request for Admission. — Unless otherwise allowed
further time as the court may allow on motion, the party by the court for good cause shown and to prevent a
to whom the request is directed files and serves upon failure of justice, a party who fails to file and serve a
the party requesting the admission a sworn statement request for admission on the adverse party of material
either denying specifically the matters of which an and relevant facts at issue which are, or ought to be,
admission is requested or setting forth in detail the within the personal knowledge of the latter, shall not be
reasons why he or she cannot truthfully either admit or permitted to present evidence on such facts. (5)
deny those matters.
Can you withdraw the admission that you have
Objections to any request for admission shall be
made? Yes.
submitted to the court by the party requested within the
period for and prior to the filing of his or her sworn
statement as contemplated in the preceding paragraph What is the effect of failure to file and serve a request
for admission?
and his or her compliance therewith shall be deferred
The same as that of Rule 25.
until such objections are resolved, which resolution
shall be made as early as practicable. (2a)
General Rule:
If you did not serve a request for admission on the
The request is deemed admitted if the party requested adverse party of material and relevant facts at issue which
fails to answer the request within fifteen (15) days after are, or ought to be, within the personal knowledge of the
service thereof. latter, you shall not be permitted to present evidence
on such facts.
PO V. COURT OF APPEALS, 164 SCRA 668
When a matter is already effectively denied in the Exception:
pleading, as in the case of an actionable document 1. Unless otherwise allowed by the court for good
attached to the complaint (ie. Promissory note) but was cause shown, and
specifically denied in the answer, there is no need any 2. To prevent a failure of justice.
more to ask it again under Rule 26. If requested and not
denied, there is no admission. To Whom Request for Admission Be Made

Monte: In this case, the plaintiff filed a case for collection REBONERIA VS. COURT OF APPEALS, 216 SCRA 627
of money. He attached a promissory note signed by the A request for admission must be addressed to the party
defendant. In his answer, the defendant refused to admit and not to his lawyer. So, if the request was sent to the
that he signed the promissory note. So the plaintiff sent a lawyer of the adverse party and the latter did not answer,
request for admission pursuant to Rule 16. Why do you the failure to answer will not matter as the request is not
have to ask for the defendant to admit the genuineness or valid.
authenticity of the PN when he already denied it in his
answer? If the defendant will not answer your request, PSCFC FINANCING CORP. VS. COURT OF APPEALS,
there will be no implied admission. Minaldito na nang 216 SCRA 838
imoha if imo pa gyud pugson pag admit nga gi deny However, if the request for admission was properly sent
naman na niya sa iyang answer. to the party and the latter requested his lawyer to answer
it, the answer is valid. Under the Rules, a client can

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always act through his lawyer and that he is bound by the RULE 28
actuation of the latter. PHYSICAL AND MENTAL EXAMINATION OF
PERSONS
RULE 27
PRODUCTION OR INSPECTION OF DOCUMENTS OR WHEN EXAMINATION MAY BE ORDERED
THINGS
SECTION 1. When Examination May be Ordered. —
SECTION 1. Motion for Production or Inspection; In an action in which the mental or physical condition of
Order. — Upon motion of any party showing good a party is in controversy, the court in which the action is
cause therefor, the court in which an action is pending pending may in its discretion order him or her to submit
may (a) order any party to produce and permit the to a physical or mental examination by a physician. (1a)
inspection and copying or photographing, by or on
behalf of the moving party, of any designated SECTION 2. Order for Examination. — The order for
documents, papers, books, accounts, letters, examination may be made only on motion for good
photographs, objects or tangible things, not privileged, cause shown and upon notice to the party to be
which constitute or contain evidence material to any examined and to all other parties, and shall specify the
matter involved in the action and which are in his or time, place, manner, conditions and scope of the
her possession, custody or control; or (b) order any examination and the person or persons by whom it is to
party to permit entry upon designated land or other be made. (2)
property in his or her possession or control for the
purpose of inspecting, measuring, surveying, or
Like in a civil case for Declaration for Nullity of Marriage
photographing the property or any designated relevant
on the ground of psychological incapacity, you can be
object or operation thereon. The order shall specify the
forced to submit yourself to an examination by a
time, place and manner of making the inspection and
psychologist or psychiatrist. When the issue of the mental
taking copies and photographs, and may prescribe
condition of the person is involved such as when he is
such terms and conditions as are just. (1a)|||
insane when he entered into the contract, then you can
request for an examination of the mental condition of the
When can you avail of this?
person.
When the documents presented by the opposing party are
not very clear (di maayo pagka Xerox, tag 50 cents ra), Suppose you are requesting for the examination of a
you can file a motion for requesting the party to produce
cadaver of a person, what rule will you use?
the document in court for inspection so that you can have
I do not think you can use Rule 28 because physical and
it photocopied in a brand new photocopier.
mental examination of a person here refers to a living
person. If the person is already dead, it can be considered
Requisites for a valid inspection of documents or a thing and not a person. You can probably use the Rule
things 27 which is the production or inspection of a thing.
1. A motion (leave of court) must be filed;
2. The motion must show good cause for its grant;
REPORT OF FINDINGS
3. Notice of motion must be furnished to all parties.
4. The motion must sufficiently describe the
documents or things to be produced or examined; SECTION 3. Report of Findings. — If requested by
5. The documents or things to be examined must the party examined, the party causing the examination
contain evidence material to the pending action; to be made shall deliver to him or her a copy of a
6. The documents or things to be examined must detailed written report of the examining physician
not be privileged; and setting out his or her findings and conclusions. After
7. The documents or things to be examined must be such request and delivery, the party causing the
in the possession of the adverse party or, at least, examination to be made shall be entitled upon request
under his control. to receive from the party examined a like report of any
examination, previously or thereafter made, of the same
A party has all the right to examine the documents mental or physical condition. If the party examined
presented by the opposing party. If the subject matter of refuses to deliver such report, the court on motion and
the case is a thing that is not movable, you can request notice may make an order requiring delivery on such
for ocular inspection. terms as are just, and if a physician fails or refuses to
make such a report, the court may exclude his or
her testimony if offered at the trial. (3a)

If requested by the party examined, the party causing the

examination to be made shall deliver to him or her a copy

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of a detailed written report of the examining physician proponent the amount of the reasonable expenses
setting out his or her findings and conclusions. incurred in obtaining the order, including attorney's
fees.
Dean Monte: As the plaintiff, if you ask the court to let the
If the application is denied and the court finds that it was
defendant submit himself for the mental or physical
filed without substantial justification, the court may
examination, the defendant has the right to demand for a
require the proponent or the counsel advising the filing
copy of the findings of the doctor.
of the application, or both of them, to pay to the refusing
WAIVER OF PRIVILEGE party or deponent the amount of the reasonable
expenses incurred in opposing the application,
including attorney's fees. (1)
SECTION 4. Waiver of Privilege. — By requesting
and obtaining a report of the examination so ordered or
by taking the deposition of the examiner, the party Refusal to Answer:
examined waives any privilege he or she may have in • Movant of deposition upon oral examination may
that action or any other involving the same controversy, proceed to ask questions on other matters.
regarding the testimony of every other person who has • Movant may ask from the court for an order to compel
examined or may thereafter examine him or her in from the deponent to answer. If the court finds the
respect of the same mental or physical examination. refusal to answer unreasonable, it may order
(4a) deponent and counsel to pay reasonable expenses
incurred by the proponent in obtaining the order.
If the person examined insisted that he should be given a • If the court finds the motion unjustifiable, it may order
copy of the findings of the doctor, the one who requested the proponent to pay reasonable expenses in
the examination has also the right to demand from him to refusing the motion.
show the findings of the other doctors who examined him
in the past. CONTEMPT OF COURT

Because by requesting for a copy of the examination, that

person who was examined is deemed to have waived SECTION 2. Contempt of Court. — If a party or other
the physician-patient privilege. Dili na siya ka invoke sa witness refuses to be sworn or refuses to answer any
privilege. question after being directed to do so by the court of the
place in which the deposition is being taken, the refusal
Note: Since the results of the examination are intended may be considered a contempt of that court (2).
to be made public, the same are not covered by SECTION 3. Other Consequences. — If any party or
physician-patient privilege under Sec. 24(b), Rule 130 an officer or managing agent of a party refuses to obey
[1 Regalado 376, 2010 Ed.] an order made under Section 1 of this Rule requiring
him or her to answer designated questions, or an order
RULE 29 under Rule 27 to produce any document or other thing
REFUSAL TO COMPLY WITH MODES OF for inspection, copying, or photographing or to permit it
DISCOVERY to be done, or to permit entry upon land or other
property, or an order made under Rule 28 requiring
REFUSAL TO ANSWER him or her to submit to a physical or mental
examination, the court may make such orders in regard
SECTION 1. Refusal to Answer. — If a party or other to the refusal as are just, and among others the
deponent refuses to answer any question upon oral following:
examination, the examination may be completed on (a) An order that the matters regarding which the
other matters or adjourned as the proponent of the questions were asked, or the character or
question may prefer. The proponent may thereafter description of the thing or land, or the contents of
apply to the proper court of the place where the the paper, or the physical or mental condition of the
deposition is being taken, for an order to compel an party, or any other designated facts shall be taken
answer. The same procedure may be availed of when to be established for the purposes of the action in
a party or a witness refuses to answer any interrogatory accordance with the claim of the party obtaining the
submitted under Rules 23 or 25. order;
If the application is granted, the court shall require the (b) An order refusing to allow the disobedient party to
refusing party or deponent to answer the question or support or oppose designated claims or defenses
interrogatory and if it also finds that the refusal to or prohibiting him or her from introducing in
answer was without substantial justification, it may evidence designated documents or things or items
require the refusing party or deponent or the counsel
advising the refusal, or both of them, to pay the

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 of testimony, or from introducing evidence of reasonable expenses incurred by the other, including
physical or mental condition; attorney's fees. (5a)
(c) An order striking out pleadings or parts thereof, or SECTION 6. Expenses against the Republic of the
staying further proceedings until the order is Philippines. —Expenses and attorney's fees are not
obeyed, or dismissing the action or proceeding or to be imposed upon the Republic of the Philippines
any part thereof, or rendering a judgement by under this Rule. (6)
default against the disobedient party; and
(d) (d) In lieu of any of the foregoing orders or in SIBAYAN V. ALDA
addition thereto, an order directing the arrest of any G.R. NO. 233395, January 17, 2018
party or agent of a party for disobeying any of such
orders except an order to submit to a physical or Technical rules of procedure and evidence are not strictly
mental examination. (3a) adhered to in administrative investigations. Thus,
recourse to the discovery procedure, such as written
interrogatories and production or inspection of a
Contempt document or things is not mandatory in administrative
If the refusal to obey is wanton, the court may cite that proceedings. Although trial courts are enjoined to observe
person in contempt of court. strict enforcement of the rules on evidence, the same
does not hold true for administrative bodies.
Other Consequences
1. If the refusing party is the plaintiff, the court may CONSEQUENCES OF REFUSAL TO COMPLY WITH
dismiss his case; MODES OF DISCOVERY
2. If the refusing party is the defendant, he may be
declared as in default; Refusal to answer any question:
3. Refusal to allow the inspection of a thing or Upon refusal to answer, the proponent may apply to the
document shall be taken to be established for court for an order to compel an answer.
the purposes of the action in accordance with the
claim of the party obtaining the order. If the application is granted, the court shall
4. If a party refuses to admit the genuineness of a a. require the refusing party or deponent to
document under Rule 16, the refusing party may answer the question or interrogatory, and
be ordered to pay the reasonable expenses b. if it also finds that the refusal to answer was
incurred in making such proof, including without substantial justification, it may require
attorney’s fees. the refusing party or deponent or the counsel
advising the refusal, or both of them, to pay the
SECTION 4. Expenses on Refusal to Admit. — If a proponent the amount of the reasonable
party after being served with a request under Rule 26 expenses incurred in obtaining the order,
to admit the genuineness of any document or the truth including attorney’s fees. If the application is
of any matter of fact, serves a sworn denial thereof and denied and the court finds that it was filed
if the party requesting the admissions thereafter proves without substantial justification, the court may
the genuineness of such document or the truth of any require the proponent or the counsel advising
such matter of fact, he or she may apply to the court for the filing of the application, or both of them, to
an order requiring the other party to pay him or her the pay to the refusing party or deponent the
reasonable expenses incurred in making such proof, amount of the reasonable expenses incurred in
including reasonable attorney's fees. Unless the court opposing the application, including attorney’s
finds that there were good reasons for the denial or that fees. [Sec. 1, Rule 29]
admissions sought were of no substantial importance,
such order shall be issued. (4a) The refusal may be considered a contempt of that
court. [Sec. 2, Rule 29]
SECTION 5. Failure of Party to Attend or Serve
Answers. — If a party or an officer or managing agent Refusal to be sworn:
of a party wilfully fails to appear before the officer who The refusal may be considered a contempt of that
is to take his or her deposition, after being served with court. [Sec. 2, Rule 29]
a proper notice, or fails to serve answers to
interrogatories submitted under Rule 25 after proper Refusal to answer designated questions or refusal
service of such interrogatories, the court on motion and to produce documents or to submit to physical or
notice, may strike out all or any part of any pleading of mental examination:
that party, or dismiss the action or proceeding or any The court may make such orders in regard to the
part thereof, or enter a judgment by default against that refusal as are just, and among others the following:
party, and in its discretion, order him or her to pay

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 (a) An order that the matters regarding which the Civil Procedure – Synchronous Lecture
questions were asked, or the character or January 19, 2021 (Tuesday)
description of the thing or land, or the contents
of the paper, or the physical or mental Q and A
condition of the party, or any other designated
facts shall be taken to be established for the Actionable Document
purposes of the action in accordance with the
claim of the party obtaining the order; In cases involving actionable document, in order to
deny the genuineness and due execution of an
(b) An order refusing to allow the disobedient party actionable document, it is required that the actionable
to support or oppose designated claims or document must be denied under oath. How do you
defenses or prohibiting him or her from specifically deny under oath?
introducing in evidence designated documents A: Under oath means that the pleading that you filed in
or things or items of testimony, or from answer to that must be verified. There is an affidavit form
introducing evidence of physical or mental at the end. A verification is like an affidavit that states I,
condition; Juan Dela Cruz, is the defendant in this case and I have
caused the preparation of the foregoing answer. All the
(c) An order striking out pleadings or parts thereof, allegations I have stated therein are true and correct to
or staying further proceedings until the order is the best of my knowledge xxx.” It will be notarized by a
obeyed, or dismissing the action or proceeding lawyer. That is a verified answer.
or any part thereof, or rendering a judgement
by default against the disobedient party; and So the requirement that the pleading must be under
oath means that it has to be verified?
(d) In lieu of any of the foregoing orders or in A: Yes. It has to be verified. If there is an actionable
addition thereto, an order directing the arrest document attached to the Answer, you have to file a
of any party or agent of a party for disobeying Reply. That is the only instance that you are allowed to
any of such orders except an order to submit Reply – that reply should be verified. The last part must
to a physical or mental examination. [Sec. 3, be notarized by a lawyer.
Rule 29]
Declaration of Default (Rule 9)
Refusal to admit under Rule 26 What if the defendant was not able to file his Answer
The court, upon proper application, may issue an order in the 30 day reglementary period but he filed it on the
requiring the other party to pay him reasonable 31st day. On that same day, the counsel for the
expenses incurred, including attorney’s fees plaintiff also immediately filed a motion to declare
PROVIDED that party requesting proves genuineness him in default. Which one will the court entertain
of such document or truth UNLESS the court finds: under that scenario?
a. There were good reasons for denial, or A: As long as the defendant is not yet declared in
b. Admissions sought were of no importance. default, he may file his Answer. Since he was not yet
[Sec. 4, Rule 29] declared in default at the day of the filing of the plaintiff to
declare him in default, the court must accept the answer.
Failure of party to attend or serve answers to It is actually discretionary on the part of the court to
written interrogatories (Sec. 5) accept or not. If the court finds that the defendant
The court on motion and notice may: intentionally delayed the filing of the Answer, it will not
a. Strike out all or any part of any pleading of that anymore allow the defendant to file beyond the
party, or reglementary period of 30 days. If the court finds that it
b. Dismiss the action or proceeding or any part was only overlooked, the court will accept it. It is
thereof, or discretionary upon the court to accept an Answer
c. Enter a judgment by default against that party, filed out of time. Remember that the rules must be
and liberally construed and the dispute must be resolved as
d. In its discretion, order him or her to pay much as possible through a formal hearing. Both parties
reasonable expenses incurred by the other, are given the opportunity, so the court will try to avoid
including attorney's fees. technicalities where one party will lose due to that
technicality.

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If the defendant chooses to be declared in default in A: I think what is meant there is that the court has
a case which involves an amount for moral damages, jurisdiction over the remedies prayed for by the plaintiff.
what is the remedy of the plaintiff? Maybe that is what is meant there.
A: This is actually criticized by some authors because this
rule is unfair. In default, the court cannot award Will that have the same effect as lack of jurisdiction
unliquidated damages. Moral damages is an unliquidated over the subject matter such that it may be raised in
damages because it is subject to proof. What the court the motion to dismiss before the answer and that it
can award are only those damages that are determinable may be raised at any time? Or is it something that can
already at the time of the filing of complaint such as actual be waived if not raised as an affirmative defense in
damages. the Answer?
A: Jurisdiction over the subject matter can be raised any
This is the advantage because if you were the defendant, time unlike the jurisdiction over the person of the
then you would rather choose to be declared in default defendant. Jurisdiction over the subject matter, litis
because the court cannot award more than what is pendentia, res judicata, and prescription may be raised at
claimed and what is proven in the complaint. But that’s the any time.
rule. That is the disadvantage here.
What if the ground is lack of jurisdiction over the
Does the plaintiff have a recourse in that situation? remedies? Will that fall under the four grounds that
A: Unfortunately, wala na because that’s what the rule can be raised anytime or will that fall under the
says – the court cannot award unliquidated damages. grounds that are barred if not raised in the Answer as
That is why it is being criticized by some authors and an affirmative defense?
experts because it is unfair. A: My understanding there is that the court’s jurisdiction
over the remedies is similar to jurisdiction over the subject
What the plaintiff can do is only to prove actual liquidated matter, so it can be raised any time. But I have not come
damages and recover what is stated there except for the across that topic on jurisdiction over the remedies. But I
unliquidated damages portion. think you can answer it that way, that jurisdiction over the
remedies is similar to jurisdiction over the subject matter.
Service of Summons to Private Corporations
(Rule 14) Supplemental Complaints

Are the persons who normally receive letters, are they For example, you have a Promissory Note (PN) in
authorized to receive Summons only in the absence installments. At the time of the filing of the complaint,
of the officers? only two installments are due but later on, during the
A: They may be authorized to receive Summons in the pendency, the other two also became due. Do you file
absence of the officers. As much as possible, the Sheriff a supplemental pleading?
must look for the President, the General Manager, the A: Yes.
corporate secretary, or other officials/officers. In the
absence thereof, then a person authorized to receive What will happen to the docket fees relating to that
letters or correspondence for the company may receive two others which became due and which are in the
the Summons. supplemental pleadings? Will it have to be paid first?
A: You will be charged by the court for an additional filing
Modes of Discovery fee for that.

Are the modes of discovery also applicable to If you do not pay a filing fee for that other two
criminal cases, special proceedings, and the like? installments which are not yet due when you filed it
A: Yes, deposition taking is allowed in criminal but later on became due, will it divest the court of
procedures. jurisdiction? Or can we apply the Sun Insurance case
wherein if we apply good faith, it can be taken as a
Jurisdiction over the Remedies lien on the judgment?
A: No, it cannot be taken as a lien on the judgment
Under the 2021 Bar Syllabus there is a topic on anymore because you are aware. You are already
jurisdiction over the remedies under the aspects of ordered by the Court and yet you refused to pay the filing
jurisdiction. However, I can’t seem to find any SC fee – that is disobedience to the lawful order of the court.
decision or literature discussing what jurisdiction In fact, the court can throw away your supplemental
over the remedies is and what is the effect in terms of complaint for disobedience.
a motion to dismiss like would it be the same as lack
of jurisdiction over the subject matter?

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What if by inadvertence, the judge will not ask you to Summons
pay additional docket fees and it was tried by the
court, can you invoke the good faith ruling? For summons by publication for local plaintiffs that
A: If you recall that case of Ayala vs Madayag, the SC cannot be found, it is already allowed even if the
said that the trial court can award damages that where not action is not quasi in rem or in rem?
mentioned in the original complaint only if the damages A: Yes.
accrue after the filing of the case and you can prove that
after the filing. All damages that already existed during the But for extraterritorial service, it only applies if it is
filing of the complaint must be included. Otherwise, it is quasi in rem or in rem before you can do a publication
deemed waived. in a territorial service of summons?
A: No. It applies to any action. Under the New Rules,
In this case, although it accrued, but then you are ordered the wording is in any action where the defendant cannot
by the Court to pay the filing fee – you have to comply. be located anymore. You can already serve Summons by
Otherwise, the court will punish you by dismissing that publication. It does not distinguish.
supplemental complaint.
The Supreme Court held that we do not have to
Motion to Dismiss distinguish anymore if it is in personam, in rem, quasi in
rem. Summons by publication can be done if the
If the motion to dismiss is denied, do you still carry defendant cannot be found or located. It also applies to a
out the Old Rule where it says that it shall not be less non-resident.
than 5 days? Because technically that rule is not
anymore under the Amended Rules. Will the service of Summons through publication will
A: It is different. The Neypes case applies only to the be permitted also if the action is in personam but the
reglementary period to appeal and within the period to defendant is a non-resident and is not found in the
appeal, which is Motion for New Trial or Motion for Philippines, but you know he is residing abroad.
Reconsideration. If within the reglementary period to In the discussion, it was mentioned in the case of
appeal you filed MNT or MR and it is denied, fresh period Ayala that regardless of the classification of the
is given to you and not the remaining balance. action, you can file a Service of Summons through
publication. However, in Section 17, Rule 14, it
MTD is different because it is filed before the Answer. If it mentions that service may be effected by publication
is denied, you have to file our Answer within the in cases where the defendant does not reside and is
remaining period. not found in the Philippines and claims a lien or
interest.
Under the Section 14, Rule 16 of the Old Rules, if the A: Even if it is in personam as long as he cannot be
motion is denied, the movant shall file his Answer to located in the Philippines, you can resort to Summons
the balance of the period but not less than 5 days in by Publication. There is no distinction whether the
any event. But that is not anymore carried over under action is in personam, in rem, quasi in rem.
the New Rules, so we assume that if for example the
MTD is denied before filing of the Answer, your Can you file an action in personam against a person
balance will only be the remaining? So if you file it not residing in the Philippines and serve summons by
with a balance of 2 or 3 days, mao na lang na imong publication, like breach of contract, specific
time to file? performance, damages?
A: The rule in the Bill of Particulars that in case of denial, A: Yes.
the party has a period of not less than 5 days to file an
Answer is carried over. However, this is not the same for In the cases of Pantaleon and Insurance Company, the
a denial of a motion to dismiss. It was not carried over. court held that if it is action in personam, Summons must
Thus, you will only have the balance period to file the be done personally. Summons by Publication is not
Answer. allowed. That ruling is already abandoned.

I will have to clarify this because although Rule 16 on In the Pedro Santos vs PNOC case, it did not anymore
Motion to Dismiss has already been deleted in the New distinguish.
Amendments, it does not mean that there is no Motion to
Dismiss anymore. It’s just that, the grounds are limited to While it is true now that we acquire jurisdiction over
four grounds: (1) lack of jurisdiction over the subject the defendant through Summons by Publication, how
matter, (2) litis pendentia, (3) res judicata, (4) prescription. is the court supposed to enforce that judgment? Can
All the other grounds in a Motion to Dismiss found in the it also be made by publication telling the non-resident
Old Rules are now used as an affirmative defense in your to pay this amount?
Answer. Otherwise, it is deemed waived. A: Yes.

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 Jurisdiction Does it affect third persons? For example, there is a
judgment on a particular land and it was declared to
In the original complaint, the jurisdictional amount is be owned by a particular person but he has not yet
within the jurisdiction of the MTC. But the judge registered that judgment nor included it in the title. As
ordered you to implead an additional defendant or to the third person, I cannot imagine to be bound by that
perform a joinder of parties and when there was judgment. In my opinion, it also have to be registered
joinder of parties, the claim already exceeded the in the proper registrar.
jurisdiction of the MTC. What will happen to the case? A: I also agree with your opinion. I have not yet seen a
A: The judge cannot insist on impleading another party ruling involving that particular issue but it should be
that will result to the divestment of his jurisdiction. You can registered to bind other people. I think you are correct
refuse and tell the judge that it will be removed from the there.
court’s jurisdiction if the plaintiff will have to implead
another party. Two Dismissal Rule

That other party should be treated as another case. There is one case that discussed that if a co-owner
demands for partition, even in violation of the Two
Note: You will base the court’s jurisdiction on the Dismissal Rule, the substantive aspect that the co-
original complaint and you can rightfully refuse the owner can demand partition anytime will prevail over
order of the judge if it will result to the divestment of the Two Dismissal Rule which is only a procedural
its jurisdiction. rule. Are there other cases you can think of that
substantive rule will prevail over the twin dismissal
Remember that the jurisdiction is determined by the rule other than a co-owner demanding for partition?
allegations in the original complaint. It will not be removed A: I could not think of another. But it is a very simple rule
by any other statement. For example, the defendant that substantive law should always prevail over
would argue that her debt is not 200K but 500K and wants procedural law.
the case tried in the RTC. Will it divest the MTC of its
jurisdiction? Is it required that both dismissals is because of the
No. The allegations of the defendant in his Answer Notice of Dismissal by the plaintiff? In the book of
cannot divest the court of its jurisdiction once it Riguera, he espouses the opinion that there can be
acquired jurisdiction over the complaint. Two Dismissal Rule if the first dismissal is through a
motion for dismissal and the next dismissal is due to
If the MTC judge insists on his order and he dismisses a Notice of Dismissal.
the case, the plaintiff can actually file a case under A: Rule 17 Section 1 refers to dismissal at the instance of
Rule 65 for certiorari for grave abuse of discretion? the plaintiff. The two dismissal rule applies to a
A: Yes. dismissal at the instance of the plaintiff. If the
dismissal is not at the instance of plaintiff, the Two
Totality Rule Dismissal rule will not govern.

If you have multiple defendants, the Totality Rule will My understanding is that the Two Dismissal Rule only
apply such that you apply the amount that you have applies to Section 1 of Rule 17 – dismissal upon notice by
against all the defendants if you file a case against plaintiff and not to Section 2 (dismissal upon motion of
them? plaintiff) nor Section 3 (dismissal due to fault of plaintiff)
A: Yes. If you have several claims and you file in the same
complaint, you will total all the claims. If it exceeds 300K, Notice of Dismissal by the Plaintiff
you go to RTC.
Is the filing of notice of withdrawal to the court
In Rem operate as an automatic dismissal of the case? Riano
is of the opinion that the dismissal should occur as of
The decision for cases in rem are binding upon the the date of notice filed by the plaintiff. However,
whole world. When does it exactly take effect? Is it Herrera says that it still requires the confirmation of
upon the execution of the judgment or is it at the time the court for the dismissal to be effective. Which one
when you put the judgment in rem in the Registry like should we follow?
the Registry of Deeds? When does it have the effect A: Out of respect to the court, you will have to notify the
of binding it upon the whole world? court. The court will merely confirm it. It is not automatic
A: At the moment the decision becomes final because it that once you file a Notice of Withdrawal of the Case or
is also considered as the day of entry of in the books of Notice of Dismissal, it will be dismissed. You still need the
judgment. confirmation of the court, although the court could not
deny it. It is only out respect of the court. Although it is a

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matter of right, it is subject to the confirmation of the
court.

Service of Court Orders through Electronic Means

Section 18 Rule 13 states that court orders and other

documents may be served electronically. One
reviewer says that this rule regarding court orders
being served electronically is only a supplement to
what is provided under Section 13, Rule 13 such as
personal service, registered mail, accredited courier,
and by publication.
A: Yes. The preferred service is personal service.
Second, registered mail. Third, private courier. If dmd, you
may service the summons through electronic means. The
service of court orders follows the same rules. We resort
to electronic means if it cannot be served through the
preferred modes.

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 RULE 30 TO 39 iv. If deemed necessary, the court shall set the
TRIAL presentation of the parties' respective rebuttal
evidence, which shall be completed within a period of
What is the meaning of a trial? thirty (30) calendar days.
A: Trial actually refers to the stage in the litigation process
where the parties will be presenting their evidence-in- (b) The trial dates may be shortened depending on the
chief. number of witnesses to be presented, provided that
the presentation of evidence of all parties shall be
Monte: So, the plaintiff will present evidence in support of terminated within a period of ten (10) months or three
his complaint, and after that, the defendant will present hundred (300) calendar days. If there are no third
his evidence in support of his or her defense. That is trial. (fourth, etc.)-party claim, counterclaim or cross-claim,
the presentation of evidence shall be terminated
What is the difference between trial and hearing? within a period of six (6) months or one hundred
A: Now, hearing is broader in scope than trial. Because eighty (180) calendar days.
hearing – although presentation of evidence by the parties
is considered part of hearing – but hearing is not confined (c) The court shall decide and serve copies of its decision
only to the trial proper. to the parties within a period not exceeding ninety (90)
calendar days from the submission of the case for
It includes hearing of a motion, if there are motions filed, resolution, with or without memoranda. (n)
then the court will set it for hearing. That is hearing, but
that is not trial. Schedule of Trial

RULE 30 Monte: The schedule of trial – the schedule of the

TRIAL presentation of evidence of the plaintiff and the defendant
– is already provided in the pre-trial order of the court.
Sec. 1. Schedule of Trial So, during the pre-trial conference, the parties will already
agree with the judge on the dates for the plaintiff to
SECTION 1. Schedule of T rial. — The parties shall present his evidence, and the dates for the defendant to
strictly observe the scheduled hearings as agreed upon present his evidence.
and set forth in the pre-trial order.
The parties must strictly adhere to the schedule of
(a) The schedule of the trial dates, for both plaintiff and hearing agreed upon in the Pre-Trial.
defendant, shall be continuous and within the
following periods: a) Initial presentation of evidence for the plaintiff
shall not be later than 30 calendar days from the
i. The initial presentation of plaintiff's evidence shall be termination of the pre-trial. Plaintiff shall have 90
set not later than thirty (30) calendar days after the days to finish presenting his evidence, which includes
termination of the pre-trial conference. Plaintiff shall the JDR1, if necessary.
be allowed to present its evidence within a period of
three (3) months or ninety (90) calendar days which b) The initial presentation of defendant’s evidence shall
shall include the date of the judicial dispute resolution, be set not later than 30 calendar days after the
if necessary; court’s ruling on the plaintiff’s formal offer of
evidence. The defendant shall be allowed to present
ii. The initial presentation of defendant's evidence shall its evidence within a period of 3 months or 90
be set not later than thirty (30) calendar days after the calendar days;
court's ruling on plaintiff's formal offer of evidence.
The defendant shall be allowed to present its Monte: Now, after the plaintiff is through with the
evidence within a period of three (3) months or ninety presentation of his evidence, the defendant will now
(90) calendar days; present his evidence. But before the defendant will
present his evidence, right after the plaintiff will finish
iii. The period for the presentation of evidence on the presenting his last witness or evidence, the plaintiff
third (fourth, etc.)-party claim, counterclaim or cross- will now have to formally offer his exhibits.
claim shall be determined by the court, the total of
which shall in no case exceed ninety (90) calendar What do you mean by formal offer of exhibits?
days; and A: Formal offer of exhibits means that you will now
offer to the court all documentary exhibits that you
have marked during the trial. And then, you offer

1
Judicial Dispute Resolution

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these exhibits, and then you state what is the purpose allowed to present his evidence within a period of also
of offering these exhibits. 90 days. So, 3 months.

Monte: So, you say, Exhibit “A” is a deed of absolute c) The period for the presentation of evidence on the
sale executed by so-and-so on such a date. Purpose? third (fourth, fifth, etc.)-party claim, counterclaim or
To prove that the property in question was already cross-claim shall be determined by the court, the total
sold by Mr. So-and-so to the defendant. of which shall in no case exceed 90 calendar days;
and
Now, what is new under the amendments is that the
formal offer evidence must be done orally now d) If deemed necessary, the court shall set the
immediately after the plaintiff finished presenting his presentation of the parties’ respective rebuttal
evidence. The practice before was that the formal evidence, which shall be completed within a period
offer of exhibits shall be done in writing, and it’s what of 30 calendar days.
the judge wants, to give the judge more “breathing
time”, I would say, to give the judge more time to Monte: After the plaintiff, the defendant will present
prepare his decision. his evidence. After the defendant finishes presenting
his evidence, if the plaintiff feels that there is a need
So, normally, in actual practice, once the plaintiff is to rebut the evidence of the defendant, he may ask
through with the presentation of his evidence, the the court that he be given time to rebut the evidence.
lawyer of the plaintiff will say, “Your Honor, I am So, he will have time for rebuttal evidence.
through. I have no other witnesses. May I now
formally offer my exhibits in writing?” Or, if you will not And the defendant, if he feels there is also a need to
say “in writing”, 101% the court will say, “You submit rebut the rebuttal evidence of the plaintiff, then he will
your documentary exhibits in writing. I will you give ask for [presentation of] sur-rebuttal evidence. All of
you 15 days or 30 days to submit your offer of exhibits this should be done within a period of thirty calendar
in writing, and copy-furnish the defendant, and the days.
defendant will also be given an equal number of days
to file his answer.” Nota Bene: Now, this has to be strictly observed because
under the amendment, the presentation of evidence of all
So, usa ni sa makalangan sa kaso. Kay ang mga parties shall be terminated within a period of ten (10)
documentary exhibits, ipa-in-writing pa gyud. months or three hundred (300) calendar days.
Because the court says, “I want it to be in record. So,
you put that in writing – you state the exhibits, the Monte: So, they have to finish everything within 10
purpose; then you let the other party comment; and months. And after that:
then, I will rule whether these exhibits are admissible
or not.” The court shall decide and serve copies of its decision to
the parties within a period not exceeding ninety (90)
That was the practice before. Not anymore. Now, calendar days from the submission of the case for
under the amendment, you have to offer your exhibits resolution, with or without memoranda.
orally. Pero it’s also allowed before for you to offer
your exhibits orally. In fact, in my case, I would prefer Monte: So, a total of 13 months, the case will be
to offer my exhibits orally to save time. Especially if I finished. So nice. So nice to hear about this but I am sad
only have two or three exhibits, it’s very easy. I will to say that I’ve noted this has not been strictly observed
just tell the court, “This is Exhibit ‘A’, what is the by many, of if not, almost all courts. Okay?
purpose. Exhibit ‘B’, what is the purpose.” Then I’m
through! The defendant can now start presenting Sec. 2. Adjournments and Postponements
evidence.
SECTION 2. Adjournments and Postponements. — A
Okay, so the rule now is that after the plaintiff has court may adjourn a trial from day to day, and to any
made is formal offer of exhibits, and the defendant stated time, as the expeditious and convenient
has already made his comment, right then and there transaction of business may require, but shall have no
the court will rule on the admissibility or non- power to adjourn a trial for a longer period than one month
admissibility of these exhibits. for each adjournment, nor more than three months in all,
except when authorized in writing by the Court
After the ruling on the offer of exhibits, the defendant Administrator, Supreme Court.
will now present his evidence. The initial presentation
of defendant’s evidence shall be set not later than 30 The party who caused the postponement is warned that
calendar days after the court’s ruling on plaintiff’s the presentation of its evidence must still be terminated
formal offer of evidence. The defendant shall be on the remaining dates previously agreed upon. (2a)

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 Adjournment vs. Postponement In the old Rules, there were two grounds:
1) Absence of evidence; and
Monte: There can be an adjournment or postponement of 2) Illness of a party or counsel.
the trial of the case.
Now, the ground of absence of evidence is no longer
Are adjournment and postponement the same? found in the amendment. It’s already deleted.
A: Well, technically, they are more or less the same. But
there is a difference between the two, actually. Because What do you mean by absence of evidence?
adjournment means continuance of the case for lack of A: The case is set for hearing, for example, tomorrow.
material time. And then the lawyer of the party who is supposed to
present that evidence will say, “Your Honor, I will file a
Example: Like, for example, you present your case today, motion for postponement.” And his reason is that the
this morning. But the evidence, the testimony of your evidence that he is supposed to present tomorrow is not
witness is very long that you were not able to finish it until yet available. It has not yet arrived from the States.
12 noon. So, the court will always have to ask for a recess
or an adjournment. Monte: That is not allowed now. You have to be ready
with your evidence. Otherwise, you are deemed waived.
“So, shall we continue it in the afternoon or the next day?”
That is adjournment. So, for lack of material time, the Sec. 3. Motion to Postpone Trial Due to Illness of a
court might order the adjournment of the hearing of this Party
case to another date for the continuance of the testimony
of the witness. That is adjournment. SECTION 3. Requisites of Motion to Postpone Trial for
Illness of Party or Counsel. — A motion to postpone a
Postponement, on the other hand, means there is trial on the ground of illness of a party or counsel may be
already a scheduled day, but for some valid reason, that granted if it appears upon affidavit or sworn certification
scheduled date of trial cannot proceed. Because: the that the presence of such party or counsel at the trial is
witness is in the hospital or is in the ICU, or the lawyer is indispensable and that the character of his or her illness
very sick, or whatever/for some valid reason. is such as to render his or her non-attendance excusable.
(4a)
Adjournments and Postponements
Monte: But the [ground of] illness of a party has been
Monte: Now, the rule on adjournment or postponement is retained as a ground.
that:
Postponement of the trial due to illness of a party or
− Not more than one month for each adjournment, nor counsel may be granted if it appears, upon affidavit or
more than three months in all, EXCEPT if allowed sworn certification that the presence of such party or
the Court Administrator of the SC, but there is a counsel in the trial is indispensable, and the character of
warning that the movant must still have to finish the his or her illness is such as to render his/her non-
presentation of his evidence within the period allotted attendance excusable.
to him.
Monte: Now, there are two conditions here:
Sec. 3. Requisites of Motion to Postpone Trial for 1) That party must be the one to testify on that
Absence of Evidence --- DELETED scheduled hearing – his presence must be
indispensable.
[SECTION 3. Requisites of Motion to Postpone Trial
for Absence of Evidence. — A motion to postpone a trial Because if, for example, the plaintiff already
on the ground of absence of evidence can be granted only finished testifying, it is already the turn of his or
upon affidavit showing the materiality or relevancy of such her second witness, and the plaintiff becomes
evidence, and that due diligence has been used to sick, he (plaintiff) cannot ask for postponement
procure it. But if the adverse party admits the facts to be because he is sick because anyway, his
given in evidence, even if he objects or reserves the right presence during the trial is not anymore
to their admissibility, the trial shall not be postponed. (4a, necessary. He has already testified. He cannot
R22) --- DELETED] insist that as a plaintiff, I have the right to be
present at every stage of the hearing. No, that’s
Monte: Now, regarding postponement, we all know that not correct. Once you have already testified, your
there are only two grounds for postponement: presence is not anymore needed.
1) Act of God or fortuitous event; and
2) Physical inability of a witness or a party to testify. 2) The character of the illness must be such as to
render his or her non-attendance excusable. He

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 must be very sick. Dili kay muingon lang ka nga, (e) The parties against whom any counterclaim or cross-
“Dili siya ka attend kay gi-sip-on siya. Basig naay claim has been pleaded, shall adduce evidence in
COVID, kay gi sip-on or gi-ubo.” That is not valid support of their defense, in the order to be prescribed
reasoning. by the court;

Supported by a Medical Certificate (f) The parties may then respectively adduce rebutting
evidence only, unless the court, for good reasons and
Monte: And if the motion for postponement is based on in the furtherance of justice, permits them to adduce
the illness of a party or counsel, it must be supported by evidence upon their original case; and
a medical certificate. And, what else? The medical
certificate issued by the doctor must be notarized or (g) Upon admission of the evidence, the case shall be
subscribed and sworn to before a notary public. deemed submitted for decision, unless the court
directs the parties to argue or to submit their
Sec. 4. Hearing Days respective memoranda or any further pleadings.

SECTION 4. Hearing Days and Calendar Call. — Trial If several defendants or third-party defendants, and so
shall be held from Monday to Thursday, and courts shall forth, having separate defenses appear by different
call the cases at exactly 8:30 a.m. and 2:00 p.m., pursuant counsel, the court shall determine the relative order of
to Administrative Circular No. 3-99. Hearing on motions presentation of their evidence. (5a)
shall be held on Fridays, pursuant to Section 8, Rule 15.
Okay, so what is the order of trial?
All courts shall ensure the posting of their court calendars A: The order of trial is:
outside their courtrooms at least one (1) day before the 1) Plaintiff to present evidence;
scheduled hearings, pursuant to OCA Circular No. 250- 2) Defendant shall then adduce evidence;
2015. (n) 3) The third-party defendant, if any, shall adduce
evidence;
Monte: Now, the hearing days shall only be from 4) The fourth-party defendant, and so forth, if any,
Mondays to Thursdays (8:30am and 2:00pm) because shall present evidence;
the last working day, which is Friday, is devoted for motion 5) The parties against whom any counterclaim or
day. And, the hearing shall start promptly at 8:30 in the cross-claim has been pleaded shall adduce
morning, or 2:00 if it is an afternoon hearing. evidence in support of his defense;
6) The parties may then adduce rebutting evidence;
Again, this is not strictly observed by courts for the reason − Monte: And, as I have already said a while
that the judge is late, or if not, the judge is on time, but the ago, the defendant is also given the chance
parties and the lawyers are late. to rebut the rebuttal evidence of the plaintiff,
and that is by way of a sur-rebuttal
Sec. 5. Order of Trial evidence.
7) Upon admission of evidence, the case shall be
SECTION 5. Order of Trial. — Subject to the provisions deemed submitted for decision, unless the court
of Section 2 of Rule 31, and unless the court for special directs the parties to argue or to submit their
reasons otherwise directs, the trial shall be limited to the respective memoranda.
issues stated in the pre-trial order and shall proceed as − Monte: That is the discretion of the court. It
follows: may ask the lawyer to orally argue the case.
But that is very, very seldom now. Most of the
(a) The plaintiff shall adduce evidence in support of his time, the court will instead require them to
or her complaint; submit their memoranda, which is a written
argument why the court should rule in their
(b) The defendant shall then adduce evidence in support favor.
of his or her defense, counterclaim, cross-claim and
third-party complaint; Nota Bene: The foregoing order of trial applies only to
regularly controverted claims. (Yu vs. Magpayo, G.R. No.
(c) The third-party defendant, if any, shall adduce L-29742, March 29, 1972)
evidence of his or her defense, counterclaim, cross-
claim and fourth-party complaint; Monte: In other words, it is possible that the defendant
will be the one to present evidence instead of the plaintiff.
(d) The fourth-party, and so forth, if any, shall adduce
evidence of the material facts pleaded by them; In civil cases, the court may require instead the defendant
to present evidence first. Like, in a case for collection of
sum of money, plaintiff claims that the defendant is

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indebted – evidence by promissory note – and that the Issue: Was plaintiff’s counsel correct when he refused to
defendant has not yet paid him. comply with the order of the trial court to present evidence
and stated that he would only present evidence only
The answer of the defendant says, “I have already paid during rebuttal?
you, and I have no more obligation to you.”
Ruling: Yes.
Now, if that’s the case, if that’s the defense of the
defendant – payment of the obligation – then, the court Since the answer admitted defendant's obligation as
will ask the defendant to present his evidence first. “Just stated in the complaint, albeit special defenses were
show us your receipt that the obligation has already been pleaded, plaintiff had every right to insist that it was for
paid and extinguished. If you have that receipt, okay, we defendant to come forward with evidence in support of his
don’t have to go further. If you prove that you have already special defenses.
paid, I will dismiss the case right away.” That is in a civil
case. Section 2 of Revised Rule of Court 129 plainly supports
appellant:
You have a similar situation in criminal cases, right? You
have already studied Criminal Procedure. In criminal Sec. 2. Judicial admissions. — Admissions made by the
cases, reverse trial, as we call it, can also happen. Like parties in the pleadings, or in the course of the trial or
in a case for murder or homicide, and the defense of the other proceedings do not require proof and cannot be
accused is self-defense, so when we say self-defense, contradicted unless previously shown to have been made
that means that you admitted that you killed the victim. through palpable mistake.
But it was an act of self-defense. So, if that’s the case, the
accused will be asked to present evidence first. That’s in Sec. 6. Oral Offer of Exhibits
criminal cases, and the reverse trial is also applicable in
civil cases as shown in the case of Yu vs. Magpayo. SECTION 6. Oral Offer of Exhibits. — The offer of
evidence, the comment or objection thereto, and the court
YU VS. MAGPAYO ruling shall be made orally in accordance with Sections 34
A/N: Shown in the slides, no story given. to 40 of Rule 132. (n)
G.R. No. L-29742, March 29, 1972
Monte: Now, under Sec. 6 of the amendment, the offer of
Facts: Vicente Yu filed a suit against Emilio Mapayo to exhibits must be done orally, in open court. And after you
recover the sum of P 2,800, representing the unpaid have formally offered your exhibits in open court, the other
balance of the purchase price of a Gray Marine Engine party must immediately give their comment or objection,
sold by the plaintiff to the defendant in the City Court of and right then and there, the court will rule.
Davao.
This is really nice, this will shorten the proceeding. You
The answer admitted the transaction and the balance see, this amendment to the Rules of Court is really
due, but contended that by reason of hidden defects of intended to expedite the proceedings because there are
the article sold, the defendant had been forced to spend already so many complaints that our justice system is so
P2,800 for repairs and labor, wherefore plaintiff had delayed, and there are so many dilatory tactics employed
agreed to waive the balance due on the price of the by lawyers.
engine, and counterclaimed for damages and attorneys'
fees. So, this amendment is intended to put a stop to these
dilatory tactics; to plug in the holes of these tactics to
The City Court, after trial, disallowed the defenses and delay the proceedings.
ordered the defendant to pay plaintiff P2,500.00 and
costs. Sec. 7. Agreed Statement of Facts

Defendant Mapayo appealed to the Court of First Instance SECTION 7. Agreed Statement of Facts. — The parties
of Davao. When, after several continuances, the case to any action may agree, in writing, upon the facts
was called for hearing on 13 March 1968, the defendant, involved in the litigation, and submit the case for judgment
as well as his counsel, failed to appear and the court on the facts agreed upon, without the introduction of
scheduled the case for hearing ex parte on the same day. evidence.
The Court ordered plaintiff to present his evidence.
However, the attorney for the plaintiff refuses to present If the parties agree only on some of the facts in issue, the
evidence, either oral or documentary, when required by trial shall be held as to the disputed facts in such order as
the Court. The case was dismissed for lack of the court shall prescribe. (6)
prosecution.

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Monte: Now, stipulation of facts. This actually happens Suspension of Actions
during the pre-trial, as what we have already discussed.
Trial can already be dispensed with if, during the pre-trial, Monte: Now, Sec. 8 refers to suspension of actions. The
the parties could agree on all the material facts of the court may suspend the proceeding.
case. So, there is no more controverted facts. This is what
we call stipulation of facts. ARTICLE 2030, CC. Every civil action or proceeding shall
be suspended:
During the pre-trial, the court will ask the parties, “Do you
agree on certain facts, so we don’t have to prove those (1) If willingness to discuss a possible compromise is
facts anymore? Only the controverted facts, only those expressed by one or both parties; or
facts which you do not agree, will be the subject of trial.” (2) If it appears that one of the parties, before the
commencement of the action or proceeding, offered to
But if they agree on all material facts, there will be no more discuss a possible compromise but the other party
need for a trial. Remember, a trial is only intended to refused the offer.
determine the facts so that the court will now what law will
apply to that certain set of facts. The duration and terms of the suspension of the civil
action or proceeding and similar matters shall be
Nota Bene: When Stipulation of Facts is Not Allowed governed by such provisions of the rules of court as the
Supreme Court shall promulgate. Said rules of court shall
Monte: Stipulation of facts, however, are not permitted in likewise provide for the appointment and duties of
the following cases: amicable compounders. (n)

1) Annulment of marriage; Article 2030 of the Civil Code provides that civil actions
2) Declaration of nullity of marriage; and or proceedings may be suspended:
3) Legal separation 1) If willingness to discuss possible compromise is
expressed by one or both parties; or
Sec. 7. Statement of the Judge --- DELETED 2) If it appears that one of the parties, before the
commencement of the action or proceeding,
[SECTION 7. Statement of Judge. — During the hearing offered to discuss a possible compromise but
or trial of a case any statement made by the judge with the other party refused the offer.
reference to the case, or to any of the parties, witnesses
or counsel, shall be made of record in the stenographic Monte: Usually, compromise agreements will be
notes. (3a, R30) --- DELETED] discussed during pre-trial. And it’s possible that the
parties will not agree on a compromise agreement during
Monte: Now, the old Sec. 7 of the old Rules, regarding pre-trial, so the court will say, “Okay, let’s proceed to trial.”
the statement of the judge has already been deleted.
But during the trial, one party suddenly offered
If you recall, in the old Rules, it states there that any compromise to the other party. Or, that party who did not
statement of the judge during the trial must be recorded. agree to the compromise suddenly had a change of heart.
The judge cannot say, “Off the record.” It has been the Then, the court shall suspend the proceeding. But the
practice of many judges before nga mu-comentaryo sila court cannot suspend the proceeding for a long time
while the case is ongoing, and the judge will tell the because the court is only given a certain period to
stenographer, “Stenographer, off the record ha? Don’t terminate the case. The court has only 10 months or 300
record this.” Then, he will say something, and what he days to terminate the entire trial or hearing of the case.
said is clearly favorable to one party. That’s unfair to the
other party, diba? So that’s why, there should be no off But in the Civil Code, we have under Art. 2030, it provides
the record. that civil actions or proceedings will be suspended if
willingness to discuss possible compromise is expressed
But this has already been removed because everything by one or both of the parties, or if it appears that one of
now should be on-record. Everything stated during the the parties, before the commencement of the action or
trial must be recorded by the stenographer. proceeding, offered to discuss a possible compromise but
the other party refused the offer.
Sec. 8. Suspension of Actions
The court will be happy to suspend the proceedings to
SECTION 8. Suspension of Actions. — The suspension give the parties all the chance to find an amicable
of actions shall be governed by the provisions of the Civil settlement of the case. Why is the judge happy on that?
Code and other laws. (8a) Because he will not decide anymore. It will save the time
of the judge trying to analyze the evidences that you have
presented whether it is admissible or not, then trying to

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apply the law – making decisions is not easy. So, mas Clerk of Court must be a lawyer
malipay ang huwes kung magka-areglo mo. And that is
encouraged by our law or by our Rules of Court. Monte: The third condition is that the clerk of court must
be a lawyer. And this is true only in the RTC. This cannot
Sec. 9. Delegation of Reception of Evidence to Clerk be done in the MTC because their clerks of court are not
of Court lawyers.

SECTION 9. Judge to Receive Evidence; Delegation The clerk of court has no power to rule on the
to Clerk of Court. — The judge of the court where the objection
case is pending shall personally receive the evidence to
be adduced by the parties. However, in default or ex parte Monte: So, if there are objections during the presentation
hearings, and in any case where the parties agree in of evidence, the clerk of court will just note down the
writing, the court may delegate the reception of evidence objections and have it ruled later on by the judge.
to its clerk of court who is a member of the bar. The clerk Because the clerk of court, even though he is a lawyer,
of court shall have no power to rule on objections to any does not have the power to rule on the objections.
question or to the admission of exhibits, which objections
shall be resolved by the court upon submission of his or Development of Law Allowing Reception of Evidence
her report and the transcripts within ten (10) calendar by the Clerks of Courts
days from termination of the hearing. (9a)
Monte: Now, these cases below, I am just showing to you
Monte: Now, the reception of evidence of the plaintiff and the development of our law on the reception of evidence
the defendant in the trial of the case may be delegated by by the clerk of court.
the judge to the clerk of court.
LALUAN, ET. AL. VS. MALPAYA
When can the judge delegate the reception of G.R. No. L-21231, July 30, 1975
evidence to the clerk of court?
A: When: Monte: In the case of Laluan, the first case, the SC said,
1) The defendant is already in default, and the “Yes, you can delegate the reception of evidence for as
hearing will be an ex parte hearings; long as it is an ex parte hearing, like the defendant has
2) The parties agree in writing; already been declared in default, or the parties have
3) The clerk of court is a lawyer; already agreed to that – the reception can be done before
4) The clerk of court has no power to rule on the clerk of court to save the judge his precious time.
objections.
But this was later on also superseded by the Lim Tanhu
Defendant is already in default vs. Ramolete ruling.

Monte: Normally – this is very common, this is usually the LIM TANHU VS. RAMOLETE, ET. AL.
practice of many judges – once the defendant is declared G.R. No. L-40098, August 29, 1975
in default, the judge will tell the plaintiff, “Plaintiff, you are
now allowed to present your evidence ex parte. You now Monte: There was a time when the Supreme Court said,
go to the clerk of court; the clerk of court will be the one “You cannot delegate the reception of evidence to the
to receive your evidence, to listen to your evidence.” clerk of court.” That was the case of Lim Tanhu vs.
Ramolete. But this was later on abandoned by the
So, we set a date for the reception of the plaintiff’s National Housing Authority vs. CA.
evidence ex parte.
NATIONAL HOUSING AUTHORITY VS. CA
Parties Agree in Writing G.R. No. L-50877, April 28, 1983
Monte: Both parties agree in writing that the reception of Monte: This went back to the old ruling of Laluan vs.
their evidence will just be done in the office of the clerk of Malpaya. And that is the rule until now, and it has already
court, not anymore in front of the judge inside the been incorporated in our Rules of Court.
courtroom. Maybe they want to save the time of judge,
they know that the judge is very busy, he has so many
cases and their case is very simple, so they will say,
“Okay, let’s just have it received by the clerk of court.”

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 RULE 31 Each of the passenger can file a case against the bus
CONSOLIDATION OR SEVERANCE company, right? Now, there were 10 injured passengers,
and all of them filed a case. And all of them filed a case in
Sec. 1. Consolidation Cebu City because they were all residents of Cebu City.
They were represented by different lawyers. Now, these
SECTION 1. Consolidation. — When actions involving a 10 cases were raffled to different branches of the RTC of
common question of law or fact are pending before the Cebu City, because their claims were all cognizable by
court, it may order a joint hearing or trial of any or all the the RTC – ang ilang claim more than P300,000 in
matters in issue in the actions; it may order all the actions damages.
consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary So, different branches. All of these cases can be
costs or delay. (1) consolidated to just one judge. Why? Because they all
involve a common question of law or fact. And they are
What do you mean by consolidation? pending in the same court. Although they were raffled in
A: Consolidation means that when there are several different branches, but all these different branches belong
actions or cases pending before the same judge involving to one court – they are the Regional Trial Court of Cebu
a common question of law or fact, it may order a joint City. Okay? So, they would be consolidated, and they
hearing or trial. would be tried in just one court. That is what the defendant
bus company will surely do.
Monte: Now, we have discussed already before the
joinder of causes of action. The plaintiff may have Because imagine if you were the lawyer of the defendant
several causes of action against the defendant, and he bus company? You will be appearing there, you will be
can join them together in one case. appearing here, you will be appearing in another court –
it’s all the same, arising out of the same accident, the
But it is possible that the plaintiff will have several cases same incident, and it involves a common question of law.
already filed – like a sum of money case based on a So, mag-gamas2x kag lakaw, mag-appear in different
promissory note payable by installment. Every time the courts when it’s the same question of law? So, what will
installment becomes due and the defendant fails to pay, you do? You ask the court to consolidate all these cases.
the plaintiff can file a case right away. Suppose the
plaintiff – when the first installment became due, the Now, the next question is: in which court will it be
defendant failed to pay – the plaintiff immediately filed a consolidated? The consolidation shall be done in the
case. The second installment becomes due, another case court that is handling the case with the lowest number of
gi-file sa plaintiff. The third installment becomes, another cases.
case. Fourth installment, another case. Upat na ka kaso
ang gi-file sa plaintiff against the same defendant. All So, let us say, Case 1, 2, 3, 4 – all of these will be
these cases were raffled to the same judge. consolidated to Case No. 1. Why? Because the case that
has lowest docket number – meaning it was the first case
So, if you are the judge, what will you do? Will you try filed – so, all other cases will be consolidated to the first
these four cases separately, considering they all involve case filed.
the same question of law or fact? The answer will be to
join them together. And so, you order consolidation of all In consolidation of cases, the case bearing the higher
these cases. docket number is consolidated with the case having the
lower docket number.
Joinder of causes of action is like consolidation, but the
consolidation was done at the time of the filing of the case. When Consolidation Will Not Apply
But here, in consolidation, the different cases were
already filed, and it is the court or the other party who Monte: Now, this rule on consolidation will not apply if
asked the court for the consolidation of all these cases. these other cases were filed in different courts.

Consolidation Involving Several Parties In the same example I gave you, involving Ceres Bus
Line. The injured passengers filed their cases in Cebu
Monte: Now, consolidation may also happen even if there City, but not all because one of the injured passengers is
are several parties, but they all involve a common a resident of Tagbilaran, Bohol, and he already went back
question of law or fact. to his hometown. He filed a case there.
Like, for example, you remember the example I gave you
a while ago, a passenger bus – a Ceres bus – from Bogo Can that case in Tagbilaran be consolidated with the
bound for Cebu City met an accident. The bus turned cases in Cebu City? No. Because although it involves a
turtle because of the reckless driving or negligence of the common question of law or fact, that case is filed in a
driver. Several of its passengers were injured.

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different area of the court. Okay? So, that’s the ruling in In this case, the SC said, “Yes, you can. The judge can
the case of PAL vs. Teodoro. consolidate these two into just one hearing. Usahon na
lang ug hearing.” Diba?
PAL VS. TEODORO, 97 PHIL. 461
BUT the degree of proof will differ. Why? Because the
The rule on consolidation of cases generally applies only degree of proof in a criminal case requires more stringent
to cases pending before the same court, not to cases proof – as you all know, in criminal cases, you have to
pending in different areas of the same court, or in different prove the guilt of the accused beyond reasonable doubt –
courts. whereas in civil cases, the degree of proof required is
mere preponderance of evidence. So, mas bug-at ang
Monte: Now, RTC of Tagbilaran can be said to be the requirement sa criminal case – proof beyond reasonable
same court as of Cebu, because it’s Regional Trial Court doubt – while in the civil case, mas sayun i-prove because
– it’s the entire Region 7. But [while] it belongs to the same it is a mere preponderance of evidence.
area, it has a different territorial jurisdiction.
So, it’s very possible that the court will decide to acquit
Three Ways of Consolidating Cases the accused in the criminal case, but order the accused to
pay damages in the civil case. That is possible, diba? And
1) By recasting the cases already instituted, conducting it has happened already several times.
only one hearing and rendering only one decision;
2) By consolidating the existing cases and holding only Sec. 2. Separate Trials
one hearing and rendering only one decision; or
3) By hearing only the principal case and suspending SECTION 2. Separate Trials. — The court, in furtherance
the hearing on the others until judgment has been of convenience or to avoid prejudice, may order a
rendered in the principal case. separate trial of any claim, cross-claim, counterclaim, or
third-party complaint, or of any separate issue or of any
Consolidation of Criminal and Civil Cases number of claims, crossclaims, counterclaims, third-party
complaints or issues. (2)
CAÑOS VS. PERALTA, 115 SCRA 843
In furtherance of convenience or to avoid prejudice, the
Consolidation of criminal and civil cases is allowed, but court may order a separate trial of any claim, cross-claim,
the degree of proof will differ. counterclaim, or third-party complaint.

Monte: You know, there are cases – criminal cases – that Monte: This is for convenience or to avoid prejudice.
allows independent civil actions. Like, if you recall in Art. Okay.
33 of the Civil Code, it says that in cases of defamation,
fraud or physical injuries, an independent civil action may When a separate trial of claims is conducted by the court
be filed. under this section, it may render separate judgments on
each claim. [see Sec. 5, Rule 36]
So, physical injuries, for example. If you file a criminal
case against the accused for physical injuries, you can file This provision permitting separate trials presupposes that
a separate civil action. Kay normally man gud, if you file a the claims involved are within the jurisdiction of the court.
criminal case, the civil action is deemed instituted in the When one of the claims is not within its jurisdiction, the
criminal case. And the civil aspect refers to the recovery same should be dismissed, so that it may be filed in the
of damages. proper court. [1 Regalado 394, 2010 Ed.]

But in Art. 33, there are cases where you can have the Source: UP BOC Remedial Law Review 2020
civil aspect – the recovery of civil liabilities – be tried
separately from the criminal case. so, you filed a criminal
case for physical injuries. And then you filed an
independent civil action arising out of that criminal case.
You file it as a separate action, an independent civil
action. All these were raffled to the same judge, or it falls
in the same judge; pareha sa uban lugar nga dili multi-
sala, usa ray RTC judge in that place, so naturally, your
criminal and your civil case will be tried by the same judge.

So what will the judge do? Can he consolidate these

criminal and civil cases? The answer is yes, as in the case
of Caños vs. Peralta.

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 RULE 32 (c) When a question of fact, other than upon the
TRIAL BY COMMISSIONER pleadings, arises upon motion or otherwise, in any
stage of a case, or for carrying a judgment or order into
Commissioner effect. (2)
A person to whom a case pending in court is referred, for
him to take testimony, hear the parties and report thereon
to the court, and upon whose report, if confirmed, When can this trial by commissioner occur?
judgment is rendered. There are three instances:
1. Reference by consent of the parties;
When can we have a trial by commissioner? 2. Reference ordered on motion;
It is necessary only when there are factual issues that are 3. The court on its own volition, motu propio.
beyond the competence of the judge to resolve. These
are very technical issues that the judge cannot resolve. When a motion is filed in court for the appointment of a
commissioner and the court grants it, the commissioner
Examples: must be immediately notified. How do you arrive at who
1. In a case involving the boundaries of a land will be the commissioner? Normally, the court will give
between adjoining owners A and B. A accused B the parties a chance to give three names to the court.
of having encroached his land and B accused A
the same. The resolution of this case requires the ORDER OF REFERENCE; POWERS OF THE
expertise of a geodetic engineer. This is where a COMMISSIONER
trial by commissioner is needed where the court
will appoint a geodetic engineer to determine the SECTION 3. Order of Reference; Powers of the
issues in the case. Commissioner. — When a reference is made, the
2. In an expropriation proceeding (Rule 67), you will clerk shall forthwith furnish the commissioner with a
have to be paid just compensation. But how copy of the order of reference. The order may specify
much? The judge is not an expert in the valuation or limit the powers of the commissioner, and may direct
of the property. Here, the court may require an him or her to report only upon particular issues, or to do
appraiser to act as a commissioner. or perform particular acts, or to receive and report
3. One business part accused the other partner of evidence only, and may fix the date for beginning and
misuse of their partnership funds. There is a need closing the hearings and for the filing of his or
to examine the books of account of the business. her report. Subject to the specifications and limitations
You need a CPA here to examine the entries in stated in the order, the commissioner has and shall
the books (unless the judge is also a CPA). exercise the power to regulate the proceedings in every
4. Partition (Rule 69) hearing before him or her and to do all acts and take all
measures necessary or proper for the efficient
REFERENCE performance of his or her duties under the order. He or
she may issue subpoenas and subpoenas duces
tecum, swear witnesses, and unless otherwise
SECTION 1. Reference by Consent. — By written provided in the order of reference, he or she may rule
consent of both parties, the court may order any or all upon the admissibility of evidence. The trial or hearing
of the issues in a case to be referred to a commissioner before him or her shall proceed in all respects as it
to be agreed upon by the parties or to be appointed by would if held before the court. (3a)|||
the court. As used in these Rules, the word
"commissioner" includes a referee, an auditor and an Order of Reference
examiner. (1) When a reference is made, the clerk shall furnish the
SECTION 2. Reference Ordered on Motion. — When commissioner with a copy of the order of reference, which
the parties do not consent, the court may, upon the may contain the ff:
application of either or of its own motion, direct a 1. Specifications or limitations of the powers of the
reference to a commissioner in the following cases: commissioner;
2. A direction to report only upon particular issues,
(a) When the trial of an issue of fact requires the to do or perform particular acts, or to receive and
examination of a long account on either side, in which report evidence only; and
case the commissioner may be directed to hear and 3. The date for beginning and closing the hearings
report upon the whole issue or any specific question and that for the filing of his report. (Sec. 3)
involved therein;
Powers of the Commissioner:
(b) When the taking of an account is necessary for the
The power to regulate the proceedings in every
information of the court before judgment, or for carrying
hearing before him or her; and
a judgment or order into effect;

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 To do all acts and take all measures necessary or Refusal of Witness
proper for the efficient performance of his or her Refusal of the witness to obey the subpoena issued by
duties under the order; the commissioner or to give evidence before him, shall be
He or she may issue subpoenas and subpoenas deemed a contempt of the court which appointed the
duces tecum; commissioner (Sec. 7).
Swear witnesses; and
Unless otherwise provided in the order of The commissioner is actually very powerful. He is the alter
reference, he or she may rule upon the ego of the judge. He can subpoena any person to be a
admissibility of evidence. witness in the case and the refusal of the witness to obey
or to give evidence before him shall be deemed a
ALJEM’S CORP., ETC. VS. CA, ET AL. contempt of the court which appointed the commissioner.
GR. NO. 122216, March 28, 2001 He does not have the power to cite the witness in
The commissioner must conduct a hearing. The contempt but he can recommend to the judge who
requirement for him to hold a hearing cannot be appointed him.
dispensed with as this is the essence of due process.
COMMISSIONER SHALL AVOID DELAYS
JACA VS. DAVAO LUMBER CO., ET. AL.
GR NO L-25771, March 29, 1982 SECTION 8. Commissioner Shall Avoid Delays. —
When the commissioner did not hold a hearing in violation It is the duty of the commissioner to proceed with all
of Section 3 of this Rule, it is error for the trial court to reasonable diligence. Either party, on notice to the
issue an order approving said commissioner’s report over parties and commissioner, may apply to the court for
the objection of the aggrieved party. an order requiring the commissioner to expedite the
proceedings and to make his or her report. (8a)|||
OATH OF COMMISSIONER; PROCEEDINGS BEFORE
The commissioner shall avoid delay. Either party may
THE COMMISSIONER
apply to the court for an order requiring the commissioner
to expedite the proceedings and to make his report (Sec.
SECTION 4. Oath of Commissioner. — Before
8).
entering upon his or her duties the commissioner shall
be sworn to a faithful and honest performance thereof.
So if the commissioner is dilly-dallying the submission of
(4a)|||
his findings or report, either party can ask the court for an
SECTION 5. Proceedings before Commissioner. — order requiring the commissioners to expedite.
Upon receipt of the order of reference unless otherwise
provided therein, the commissioner shall forthwith set a REPORT OF THE COMMISSIONER
time and place for the first meeting of the parties or their
counsel to be held within ten (10) calendar days after
SECTION 9. Report of Commissioner. — Upon the
the date of the order of reference and shall notify the
completion of the trial or hearing or proceeding before
parties or their counsel. (5a)
the commissioner, he or she shall file with the court
SECTION 6. Failure of Parties to Appear before his or her report in writing upon the matters submitted
Commissioner. — If a party fails to appear at the time to him or her by the order of reference. When his or
and place appointed, the commissioner may her powers are not specified or limited, he or she shall
proceed ex parte or, in his or her discretion, adjourn the set forth his or her findings of fact and conclusions of
proceedings to a future day, giving notice to the absent law in his or her report. He or she shall attach thereto
party or his or her counsel of the adjournment. (6a) all exhibits, affidavits, depositions, papers and the
transcript, if any, of the testimonial evidence presented
SECTION 7. Refusal of Witness. — The refusal of a
before him or her. (9a)
witness to obey a subpoena issued by the
commissioner or to give evidence before him or her, SECTION 10. Notice to Parties of the Filing of
shall be deemed a contempt of the court which Report. — Upon the filing of the report, the parties shall
appointed the commissioner. (7a) be notified by the clerk, and they shall be allowed ten
(10) calendar days within which to signify grounds of
objections to the findings of the report, if they so desire.
Proceedings before Commissioner
Objections to the report based upon grounds which
Upon receipt of the order of reference, the commissioner
were available to the parties during the proceedings
shall forthwith set a time and place for the first meeting of
before the commissioner, other than objections to the
the parties and their counsel to be held within 10 days
findings and conclusions therein set forth, shall not be
after the date of the order of reference (Sec. 5).
considered by the court unless they were made before
the commissioner. (10a)

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 SECTION 11. Hearing upon Report. — Upon the
expiration of the period of ten (10) calendar days The commissioner shall be entitled to reasonable
referred to in the preceding section, the report shall be compensation which shall be taxed as costs against the
set for hearing, after which the court shall issue an defeated party, or apportioned, as justice required (Sec.
order adopting, modifying, or rejecting the report in 13).
whole or in part, or recommitting it with instructions, or
requiring the parties to present further evidence before If only one party wanted to refer the matter to a
the commissioner or the court. (11a) commissioner because the other party is against the
referral of the case to the commissioner, whoever lost the
case will shoulder the cost, or apportioned as justice
Report of the Commissioner requires.
Upon completion of hearing, the commissioner must file
his report in court stating his findings of facts and RULE 33
conclusion of law. DEMURRER TO EVIDENCE
Dean Monte: The conclusions of law are not binding,
merely recommendatory. SECTION 1. Demurrer to Evidence. — After the
plaintiff has completed the presentation of his or
Notice and Objections her evidence, the defendant may move for dismissal on
The clerk shall notify the parties of the filing of the report the ground that upon the facts and the law the plaintiff
and they are given ten (10) days to file their comment. has shown no right to relief. If his or her motion is
denied, he or she shall have the right to present
Hearing upon the Report evidence. If the motion is granted but on appeal the
After ten days, the court will set the report for hearing order of dismissal is reversed, he or she shall be
and thereafter issue an order adopting, modifying or deemed to have waived the right to present evidence.
rejecting it. (1a)
SECTION 2. Action on Demurrer to Evidence. — A
Although the commissioner is appointed by the court, the
demurrer to evidence shall be subject to the provisions
court is not duty-bound to adopt the findings of the
of Rule 15.
commissioner. The judge is still the boss, the one who
decides. If he finds that the factual findings are inaccurate, The order denying the demurrer to evidence shall not
he can always reject it or order the commissioner to be subject of an appeal or petition for certiorari,
modify his report. But most often, because the prohibition or mandamus before judgment. (n)
commissioner is an expert, the judge will adopt the
findings.
Demurrer to Evidence
STIPULATION AS TO FINDINGS
It is a motion to dismiss filed after the plaintiff finished
presenting his evidence on the ground of insufficiency of
SECTION 12. Stipulations as to Findings. — When evidence.
the parties stipulate that a commissioner's findings of
fact shall be final, only questions of law shall thereafter Ground
be considered. (12) Insufficiency of evidence, that upon the facts and the law
the plaintiff has shown no right to relief (Sec.1).
The parties may stipulate that the commissioner’s findings
Demurrer to Evidence vs. Motion to Dismiss
of fact shall be final. Thus, only questions of law shall
thereafter be considered (Sec. 12). This is different from a motion to dismiss in the sense that
a Motion to Dismiss is normally filed after receiving the
They cannot anymore question the factual findings of the
complaint and before you answer. If your MTD is denied
commissioner. The only thing they can raise are
by the court, you will then file your answer. In a Demurrer
questions of law.
to Evidence, there is already a trial and in fact, the plaintiff
has already finished presenting his evidence. After the
COMPENSATION OF COMMISSIONER plaintiff is through with the presentation of evidence, you
feel that the plaintiff was not able to prove his case. The
SECTION 13. Compensation of Commissioner. — evidence presented is not sufficient to support his cause
The court shall allow the commissioner such of action. If that is the case, you ask the court to dismiss
reasonable compensation as the circumstances of the the case by filing a demurrer to evidence.
case warrant, to be taxed as costs against the defeated
party, or apportioned, as justice requires. (13)

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The ground is lack of cause of action as distinguished What if the Demurrer is denied?
from failure to state cause of action (recall the Butuan The defendant can still present his evidence.
Case).
Difference between Demurrer to Evidence in Civil
Before a trial, the court may dismiss the case for failure to Cases from Criminal Cases
state the cause of action. If there is already a trial and the
plaintiff failed to prove his case and establish all the CIVIL CASES CRIMINAL CASES
elements of a valid cause of action, the court can dismiss 1. Leave of court is not 1. Leave of court is
the case based on lack of cause of action. required before filing; required.
2. Appealable if granted; 2. Not appealable as it
Effects of The Grant or Denial of Demurrer to 3. If denied, defendant will be double
Evidence may proceed to jeopardy.
present evidence; 3. If denied, accused
1. If granted, but reversed on appeal, the defendant 4. Court cannot make a may present
loses his right to present evidence. demurrer motu propio evidence only if he
2. If denied, the defendant can still present his filed it with leave of
evidence. court.
4. Court can dismiss
If the court grants the Demurrer, the case will be motu propio.
dismissed and that is considered as an adjudication on
the merits. RULE 34
JUDGMENT ON THE PLEADINGS
Remedy of the Parties
Rule 34 and Rule 35 are both called accelerated
1. If granted, the dismissal is considered an adjudication judgments. These are instances where the court may
on the merit, hence, the remedy is appeal. proceed to decide the case without conducting a trial.

The appellate court should not remand the The first one is called Judgment on the Pleading.
case for further proceedings but should render
judgment on the basis of the evidence JUDGMENT ON THE PLEADINGS
submitted by the plaintiff.

2. If denied, the order of denial is merely interlocutory SECTION 1. Judgment on the Pleadings. — Where
and appeal is not the remedy. (Certiorari may be an answer fails to tender an issue, or otherwise admits
availed if there abuse of discretion on the court). the material allegations of the adverse party's pleading,
the court may, on motion of that party, direct judgment
on such pleading. However, in actions for declaration of
But see:
nullity or annulment of marriage or for legal separation,
The order denying the demurrer to evidence
the material facts alleged in the complaint shall always
shall not be the subject of an appeal or
be proved. (1)
petition for certiorari, prohibition or
mandamus before judgment. [Sec. 2, Rule 33]
When to file:
Note: The remedy then is to proceed to trial,
and if the defendant loses, to appeal the 1. Where an answer fails to tender an issue, or
judgment and include in the assigned errors, 2. Otherwise admits the material allegations of the
the denial of the demurrer to evidence. adverse party’s pleading.
3.
-UP BOC Remedial Law, p. 177 Note: When no answer is filed, the remedy is to move
that the defendant be declared in default (Sec.3, Rule
What is the remedy of the plaintiff if the Demurrer is 9) – UP BOC, p. 112
granted?
Plaintiff can appeal the dismissal of the case. If the Effects of Filing a Motion for Judgment on the
appellate court reverses the decision of the trial court, and Pleading:
finds that there is sufficient evidence, the defendant loses
his right to present evidence. So, the plaintiff wins the Plaintiff is deemed to have admitted all the relevant
case and the defendant loses without him being able to allegations of fact of the defendant in his answer.
present his evidence. That is the danger of a demurrer to
evidence in civil cases.

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Exceptions: Difference Between Judgment on the Pleading and
1. Plaintiff is not deemed to have admitted Summary Judgment
irrelevant allegations in the defendant’s JUDGMENT ON THE SUMMARY
answer; PLEADINGS (RULE JUDGMENT (RULE
2. Defendant is not deemed to have admitted 34) 35)
allegations of damages in the complaint. Absence of a factual Involves an issue, but
issue in the case the issue is not
Example: because the answer genuine.
I filed a case against you for collection of sum of money tenders no issue at all.
evidenced by a PN. In your answer, you admitted that Motion for judgment on Motion for summary
you borrowed money from me and you haven’t paid me. the pleadings is filed by judgment may be filed
The reason why you haven’t paid me yet is because you a claiming party like a by either the claiming
are still waiting for your brother to send you money. Is plaintiff or a or the defending party
that a valid defense? Does that Answer tender an counterclaimant. (Sec. 1-2)
issue for the court to resolve? No. That is not an
issue. May be ordered motu May be ordered motu
propio by the court. propio by the court.
If you are the judge, will you still schedule it for Based on the pleadings Based on the
hearing? alone. pleadings, affidavits,
No more, you can decide right away. The Answer of the depositions, and
defendant fails to tender an issue. The remedy is admissions.
judgment on the pleading.

How is judgment on the pleading done? ACTION ON MOTION FOR JUDGMENT ON THE
PLEADINGS
1. By motion of the plaintiff
2. By the court’s own volition or motu propio,
if the court during pre-trial finds the same SECTION 2. Action on Motion for Judgment on the
to be proper. Pleadings. — The court may motu proprio or on motion
render judgment on the pleadings if it is apparent that
One of the purpose of pretrial is to determine the the answer fails to tender an issue, or otherwise admits
propriety on the part of the court to render judgment on the material allegations of the adverse party's
the pleading or summary judgment. If the court finds out pleadings. Otherwise, the motion shall be subject to the
that the allegations in the defendant’s answer has provisions of Rule 15 of these Rules.
practically admitted all the material averments in the Any action of the court on a motion for judgment on
complaint and has not raised an issue, the court can the pleadings shall not be subject of an appeal or
right away decide the case. petition for certiorari, prohibition or mandamus. (n)
When Not Proper
If the judge denied your motion for judgment on the
Judgment on the Pleading is not allowed in the following pleading, you cannot question that by certiorari or by
actions: appeal.
1. Declaration of Nullity of Marriage From the reference to Rule 15, it follows that a motion
2. Annulment of Marriage for a judgment on the pleadings is considered an
3. Legal Separation allowable litigious motion. As such, there must be
proof of service to the other party who shall have
Our law does not allow the marriage to be terminated
5 calendar days to file an opposition. From receipt
by agreement of the parties. One way of circumventing
of such, the court shall have 15 calendar days to
the prohibition against collusion is by admitting the resolve the motion.
material allegations in the complaint. So, would you -UP BOC 2020, p. 112
expect the court to grant it? No. It is not allowed. It would
actually make the court suspect that there is collusion.

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 RULE 35 How Is It Done
SUMMARY JUDGMENTS
1. By the filing of a motion for summary judgment
SUMMARY JUDGMENT FOR CLAIMANT with supporting affidavits, depositions, or
admission.
SECTION 1. Summary Judgment for Claimant. — 2. The adverse party may file his comment or
A party seeking to recover upon a claim, opposition within 5 days from receipt of the
counterclaim, or cross-claim or to obtain a declaratory motion.
relief may, at any time after the pleading in answer 3. A hearing will be conducted only if ordered by
thereto has been served, move with supporting the court. (UP BOC: There is no longer a
affidavits, depositions or admissions for a summary mandatory hearing for the motion due to the
judgment in his or her favor upon all or any part amendment of the rules. This is also consistent
thereof. (1a) with the amendments to Rule 15)
SECTION 2. Summary Judgment for Defending 4. Court renders a summary judgment.
Party. — A party against whom a claim, counterclaim,
or cross-claim is asserted or a declaratory relief is Dean Monte: As the plaintiff, I know that you were just
sought may, at any time, move with supporting inventing your defense of payment para duna kay ika-
affidavits, depositions or admissions for a summary himo nga issue because you know you haven’t paid me
judgment in his or her favor as to all or any part yet. You are expecting the help from your brother in the
thereof. (2a) US but the money hasn’t arrived yet. You want to buy
time. What is the best way to buy time? You answer the
Summary Judgment is proper when it appears complaint and make up a defense.
to the court that:
1. There is no genuine issue as to any material As the plaintiff, what will I do? I will prove that you
fact, except as to the amount of damages. haven’t paid me yet. For example, you have sent me a
2. The moving party is entitled to judgment as letter a few weeks ago where you asked for forgiveness
a matter of law. for not being able to pay yet since your money from the
US hasn’t arrived yet. That is a strong evidence that you
Genuine Issue have not paid yet. That is where summary judgment
An issue of fact which calls for the presentation of will come in. There is an issue but the issue is not
evidence as distinguished from a sham, fictitious, genuine, it is a sham, a fake.
contrived, or false claim.
In Judgment on the Pleading, wala gyuy issue nga gi
You are asking the court to immediately decide the case
raise kay ni admitar man dayon ka nga utangan ka but
because although the answer of the defendant tenders
the reason why you haven’t been able to pay is because
an issue, that issue is not true or genuine. Summary
judgment is proper only if there is clearly no you have no money yet.
genuine issue as to any material fact in the action. If
Partial Summary Judgment
there is any question or controversy, there is should be
trial on the merits. The rules authorize the rendition of partial summary
judgment. Such judgment is interlocutory in nature and
Here, there is an issue raised but it is not genuine. It is
is not a final and appealable judgment. The appeal from
a sham, it is fake! Gihimo-himo ra na sa defendant to
such partial judgment should be taken together with the
make out a case.
judgment in the entire case after trial shall have been
Example: conducted.
I filed a case against you for collection of sum of money.
In your answer, you said “I have already paid my utang.
I have here the receipt to prove that I have paid.” MOTION AND PROCEEDINGS THEREON
SECTION 3. Motion and Proceedings Thereon.
Is there an issue? Yes. The issue is whether or not you — The motion shall cite the supporting affidavits,
have paid the utang. But then I, the plaintiff, says “that depositions or admissions, and the specific law relied
is not true. That receipt is fake! That is falsified and I upon. The adverse party may file a comment and
can prove that you have not yet paid me.” serve opposing affidavits, depositions, or admissions
What is the remedy? within a non-extendible period of five (5) calendar
I will file a motion for summary judgment and I will days from receipt of the motion. Unless the court
challenge your allegation that you have already paid me orders the conduct of a hearing, judgment sought
through depositions and affidavits. shall be rendered forthwith if the pleadings,
supporting affidavits, depositions and admissions on
file, show that, except as to the amount of damages,

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 there is no genuine issue as to any material fact and presented in bad faith, or solely for the purpose of
that the moving party is entitled to judgment as a delay, the court shall forthwith order the offending
matter of law. party or counsel to pay to the other party the amount
of the reasonable expenses which the filing of the
Any action of the court on a motion for summary
affidavits caused him or her to incur, including
judgment shall not be subject of an appeal or petition
attorney's fees, it may, after hearing further adjudge
for certiorari, prohibition or mandamus. (3a)
the offending party or counsel guilty of contempt. (6a)
For you to file a motion for summary judgment, it must
be accompanied by supporting affidavits,
RULE 36
depositions or admissions, and the specific law
JUDGMENTS, FINAL ORDERS AND ENTRY
relied upon. The other party’s Answer must also be
THEREOF
supported by affidavits, depositions, or admissions. So
that if it turns out nga bakak diay gyud iyang gi sulti, he
How Final Judgment is Rendered
will be liable for perjury because an affidavit is to be
notarized.
SECTION 1. Rendition of Judgments and Final
Back to the example: Orders.— A judgment or final order determining the
I challenged you because you said you already paid and merits of the case shall be in writing personally and
I know you haven’t. I filed a Motion for Summary directly prepared by the judge, stating clearly and
Judgment supported by affidavits, depositions, and distinctly the facts and the law on which it is based, signed
admissions. A common friend is even willing to testify by him, and filed with the clerk of the court.
because he was present when you asked for an
extension of time to pay. This will prove that you have A final judgment on the merits of the case must be:
not yet paid. 1. In writing;
2. Personally and directly prepared by the judge;
Will you have to answer that? 3. Stating clearly and distinctly the facts and the law
You will be exposing yourself to perjury. Gawas sa civil on which it is based;
case imbis imong kaso utang ra unta nga walay ma 4. Signed by the judge;
priso sa utang, ma priso na nuon ka tungod sa perjury. 5. Filed with the clerk of court
So, you will give up. Surrender na lang. If you will not
file your answer, the court will grant the summary Decision and Fallo
judgment in my favor.
Is judgment the same as a decision?
SECTION 4. Case Not Fully Adjudicated on No.
Motion. — If on motion under this Rule, judgment is
Decision is much broader in scope than a judgment. A
not rendered upon the whole case or for all the reliefs
decision contains the findings of fact of the court and the
sought and a trial is necessary, the court may, by
law relied upon in support of the court’s decision. A
examining the pleadings and the evidence before it
decision of the court refers to the entire document
and by interrogating counsel, ascertain what material
facts exist without substantial controversy, including prepared and promulgated by the judge adjudicating and
the extent to which the amount of damages or other determining the rights of the parties to the case. It
contains the findings of facts and the conclusions of law,
relief is not in controversy, and direct such further
the reasons and the evidence to support such findings, as
proceedings in the action as are just. The facts
well as the discussion of issues leading to the its
so ascertained shall be deemed established, and the
trial shall be conducted on the controverted facts determination.
accordingly. (4a)
Judgment is part of the decision. In fact, it is found in the
SECTION 5. Form of Affidavits and Supporting last part. It is otherwise known as the dispositive portion
Papers. — Supporting and opposing affidavits shall of the decision or the fallo – the decretal portion. It is the
be made on personal knowledge, shall set forth such WHEREFORE clause.
facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to What happens if there is a conflict between the
testify to the matters stated therein. Certified true decision and the fallo? The judgment or the fallo has
copies of all papers or parts thereof referred to in the a conflict with the body. Which one will prevail?
affidavit shall be attached thereto or served therewith. General Rule: The judgment of the fallo will prevail.
(5)
Exception: If it is very clear that from the discussion in
SECTION 6. Affidavits in Bad Faith. — Should it
the body of the decision, it is really different from the fallo.
appear to its satisfaction at any time that any of the
If it is clear in the decision that the plaintiff won, but the
affidavits presented pursuant to this Rule are

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judgment was in favor of the defendant in the fallo promulgation refers to the date that the signed decision
because of one word missing which changed the is delivered to the court.
meaning, it can be corrected. The decision will prevail.
The decision must contain a discussion for the basis of
General rule: The general rule is that where there is that decision.
conflict between the dispositive portion or the fallo and the
body of the decision, the fallo controls. The only exception is on the Minute Resolutions of the
Supreme Court dismissing a petition for review on
Note: This Rule applies only when the dispositive part is certiorari. There are times that the Supreme Court will
definite, clear, and unequivocal. [Union Bank v. Pacific dismiss your petition for certiorari in just one sentence for
Equipment Corporation, G.R. No. 172053 (2008)] lack of merit.

Exception: Where the inevitable conclusion from the When the SC denies your petition for certiorari in one
body of the decision is that there was a mistake in the sentence only, it simply means that the decision of the
dispositive portion, the body of the decision will prevail. lower court is correct. Remember, the Petition for
[Rosales v. CA, G.R. No. 137566 (2001)] Certiorari under Rule 65 is not a matter of right. In fact,
Appeal by Certiorari under Rule 45 is not a matter of right
Submission of decision – it is a matter of privilege. The court may always deny it
if it finds that your petition for certiorari is unmeritorious.
When is the case deemed submitted for decision?
Upon submission of the last pleading required by the court Rendition of judgment
Pronouncement of the judgment in open court does not
Monte: The last pleading normally is the memorandum constitute rendition of judgment. It is the filing of the
submitted by both parties in support of their stance. Upon signed decision with the COC that constitutes
the receipt of the memorandum or upon the lapse of time rendition. Even if the judgment has already been put in
to submit that memorandum, the case will be submitted writing and signed, it is still subject to amendment if it has
for decision. not yet been filed with the COC. [Ago v. CA, G.R. No. L-
17898 (1962)]
When decision is Made
When decision must be made? Promulgation of judgment
Promulgation is the process by which a decision is
Supreme Court 24 months published, officially announced, made known to the public
Court of Appeals 12 months or delivered to the COC for filing, coupled with notice to
RTC and MTC 3 months the parties or their counsel. [2 Herrera 151, 2007 Ed.,
Neria v. Commissioner of Immigration, G.R. No. L-24800
(Article VIII, Sec 15 (1) Philippine Constitution) (1968)]

Rendition of Judgment, When Entry of Judgment and Final Orders

When is there a rendition of judgment? SECTION 2. Entry of Judgments and Final Orders.—
The rendition of judgment is reckoned from the moment If no appeal or motion for new trial or reconsideration is
the signed decision is filed in court, and not its filed within the time provided in these Rules, the judgment
pronouncement in open court. or final order shall forthwith be entered by the clerk in the
book of entries of judgments. The date of finality of the
The court must explain the basis of its decision. However, judgment or final order shall be deemed to be the date of
a minute resolution can be issued by the Supreme Court its entry. The record shall contain the dispositive part of
in the dismissal of petitions for review on certiorari. the judgment or final order and shall be signed by the
clerk, with a certificate that such judgment or final order
Monte: Rendition of judgment refers to the very moment has become final and executory.
that the judge signs the decision and delivers it to the
Clerk of Court. If it was signed today and delivered to the The date of the finality of judgment or final order shall be
COC the next day, then tomorrow – the day it was deemed to be the date of its entry.
delivered to the court is considered the day of rendition of
judgment. Monte: Once the court renders judgment and the losing
party receives the judgment, the losing party has 15 days
If you have read the decisions of the CA and SC, it would to appeal that judgment. If he fails to appear within the
state in the upper right hand corner the day of judgment – reglementary period, that judgment becomes final and
that is the rendition of judgment. The date of executory.

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Under the 1997 Rules, the date of judgment it becomes (3) Separate Judgment (Sec 5)
final shall also be considered as the date of entry of (4) Judgment against entity without juridical personality
judgment. (Sec 6)
(5) Judgment for specific act
Why? (6) Special Judgment
In the Old Rules – 1964 Rules of Court – the entry of (7) Judgment nunc pro tunc
judgment is different from the finality of judgment. (8) Judgment upon compromise
Judgment becomes final at the lapse of the 15 days to (9) Judgment upon confession
file and there was no appeal. Entry of judgment is (10) Clarificatory judgment
different because it refers to the mechanical act done by
the COC of writing down the judgment in the Book of Monte: Among these judgments I have mentioned, I
Entries of Judgment which is in the possession of the would like to focus on Judgment upon compromise.
COC. The day of entry of judgment is only from the
moment that the COC writes down or enters the final Judgment upon Compromise
judgment in the book of entry.
Monte: Judgment upon compromise is the only judgment
The date may differ. The judgment becomes final today that is immediately executory.
but it does not necessarily mean that it is already entered.
Why?
The 1997 Rules already changed this. It is really unfair. It cannot be appealed because a judgment based on
It is relevant to know the entry of judgment because compromise agreement is a judgment based on the
there are some remedies provided for by the Rules agreement of the parties. The court merely approves it.
that you can avail of based on the Entry of Judgment
and not on the basis of the day the judgment becomes If the plaintiff and the defendant will come up with a
final. Compromise Agreement, they will sign and be assisted by
their respective lawyers. Afterwards, they will submit the
Examples: Compromise Agreement to the court. The court will simply
Execution of judgment – you have to execute the approve it and issue a judgment upon compromise. What
judgment five years from the entry of judgment in the the judge will do is to copy word for word the judgment
Book of Entries of Judgment. upon compromise. The only thing that the judge will add
is the last part: “Finding the Compromise Agreement to be
Petition for Relief of Judgment – you have six months not contrary to law, moral, customs, public order, and
to file a petition for relief of judgment reckoned from the public policy xxxx. Parties are hereby enjoined to strictly
time the judgment was entered in the Book of Entries of comply with the terms and conditions of this Compromise
Judgment and not from the finality of judgment. Agreement. So ordered.”

If the Clerk of Court did not write down immediately the When you look at it, it is a judgment from the court but the
final judgment in the Book of Entries of Judgment, that is judgment actually emanated from the Compromise
favorable to the losing party because his period to avail of Agreement that the parties executed. So why would you
the petition for reliefs of judgment will be extended – he appeal that Compromise Agreement?
will have more time. Not unless you claim that you were deceived to sign the
compromise agreement. IOW there is fraud.
In the case of execution of judgment, if the COC delays
the entry, it is favorable to the winning party because his Remedy: File a Motion to Annul the Compromise
period to execute the judgment by mere motion will also Agreement and the Judgment Upon Compromise.
be extended. You will file a Motion to Set Aside Judgment Upon
Compromise Agreement. After that, you can appeal
That is why under the New Rules starting with the 1997 already.
ROC, the date of the final judgment shall also be
deemed to be the date of its entry. So even if the COC Immutability of Judgment
will not write down in the book of entries of judgment right
away, the date the judgment becomes final shall also be What is immutability of judgment?
considered as the date of entry of judgment. Immutability of judgment simply means that once a
judgment is rendered by the court and that judgment
Types of Judgment becomes final and executory, that judgment could no
longer be changed by the court even if it is an erroneous
(1) Judgment for or against one or more several parties judgment. It becomes immutable.
(Sec 3)
(2) Several Judgment (Sec 4)

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Judgment becomes immutable after it becomes final Several Judgments
and executory.
SECTION 4. Several Judgments.— In an action against
FINAL JUDGMENT RULE several defendants, the court may, when a several
General rule: Once a decision or order becomes final and judgment is proper, render judgment against one or more
executory, it is removed from the power or jurisdiction of of them, leaving the action to proceed against the others.
the court which rendered it to further alter or amend it.
[Siliman University v. Fontelo-Paalan, G.R. No. 170948 Separate Judgments
(2007)]
SECTION 5. Separate Judgments.— When more than
Under the doctrine of immutability of judgments, a one claim for relief is presented in an action, the court, at
judgment that has attained finality can no longer be any stage, upon a determination of the issues material to
disturbed. The reason is two-fold: a particular claim and all counterclaims arising out of the
a. To avoid delay in the administration of justice, and to transaction or occurrence which is the subject matter of
make orderly the discharge of judicial business; and the claim, may render a separate judgment disposing of
b. To put an end to judicial controversies at the expense such claim. The judgment shall terminate the action with
of occasional errors. [1 Riano 538-539, 2011 Ed.] respect to the claim so disposed of and the action shall
proceed as to the remaining claims. In case a separate
Exceptions: judgment is rendered, the court by order may stay its
a. Correction of clerical errors [Filipinas Palmoil enforcement until the rendition of a subsequent judgment
Processing, Inc. v. Dejapa, G.R. No. 167332 (2011)] or judgments and may prescribe such conditions as may
b. Nunc pro tunc entries [Filipinas Palmoil Processing, be necessary to secure the benefit thereof to the party in
Inc. v. Dejapa, G.R. No. 167332 (2011)] whose favor the judgment is rendered.
c. Whenever circumstances transpire after finality of the
decision, rendering its execution unjust and inequitable Judgment Against Entity Without Juridical
[Apo Fruits Corp. v. Land Bank of the Phils., G.R. No. Personality
164195 (2010)]
d. In cases of special and exceptional nature, when it is
SECTION 6. Judgment Against Entity Without
necessary in the interest of justice to direct modification in
Juridical Personality.— When judgment is rendered
order to harmonize the disposition with the prevailing
against two or more persons sued as an entity without
circumstances [Industrial Timber Corp. v. Ababon, G.R.
juridical personality, the judgment shall set out their
No.164518 (2006)]
individual or proper names, if known.
e. In case of void judgments [FGU Insurance v. RTC
Makati, G.R. No. 161282 (2011)]
f. Where there is a strong showing that a grave injustice RULE 37
would result from an application of the Rules [Almuete v. New Trial or Reconsideration
People, G.R. No. 179611 (2013)]
g. When there are grounds for annulment of judgment or Grounds for New Trial
petition for relief [Gochan v. Mancao, G.R. No. 182314
(2013)] SECTION 1. Grounds of and Period for Filing Motion
for New Trial or Reconsideration.— Within the period
Judgment for or Against One or More of Several for taking an appeal, the aggrieved party may move the
Parties trial court to set aside the judgment or final order and grant
a new trial for one or more of the following causes
materially affecting the substantial rights of said party:
SECTION 3. Judgment for or Against One or More of
Several Parties.— Judgment may be given for or against
(a) Fraud, accident, mistake or excusable negligence
one or more of several plaintiffs, and for or against one or
which ordinary prudence could not have guarded against
more of several defendants. When justice so demands,
and by reason of which such aggrieved party has
the court may require the parties on each side to file
probably been impaired in his rights; or
adversary pleadings as between themselves and
determine their ultimate rights and obligations.
(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.

Within the same period, the aggrieved party may also

move for reconsideration upon the grounds that the
damages awarded are excessive, that the evidence is

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 19 of 25

insufficient to justify the decision or final order, or that the Fraud, accident, mistake or excusable negligence
decision or final order is contrary to law. (FAME)
(a) Ordinary prudence could not have guarded against,
Monte: Rule 37 refers to remedies available AFTER and
judgment but BEFORE judgment becomes final. (b) By reason of which such aggrieved party has probably
been impaired in his rights.
There is a period here – from the time the judgment is
rendered up to the time the judgment becomes final within Extrinsic Fraud
which the losing party will appeal the decision to the The fraud here must refer to extrinsic fraud as
higher court. Within that reglementary period to appeal distinguished from intrinsic fraud.
(15 days), the losing party may file a Motion for New Trial
(MNT) or a Motion for Reconsideration (MR). Extrinsic Fraud – kind of deceit that was applied by the
other party or any person that will prevent you from
There are two remedies mentioned in Rule 37: knowing the case or prevents you from having your day in
1. Motion for New Trial court.
2. Motion for Reconsideration
Intrinsic Fraud – kind of fraud that was used during the
Grounds for New Trial trial like if the other party used professional witnesses
1. Fraud, accident, mistake, and excusable negligence (paid witnesses). There was deceit during trial but you
2. Newly discovered evidence were not deprived of your day in court. You have the
opportunity to discover the fraud.
Note: Fraud must refer only to extrinsic fraud
Ground Definition
Fraud, Accident, Mistake, Excusable Negligence Fraud The fraud must be extrinsic.
(FAME) Any fraudulent scheme executed
outside of the trial by the
Monte: This means you were not able to answer and prevailing party against the losing
participate in the trial which resulted already to the party, who, because of such
rendition of judgment that is adverse to you because of fraud, is prevented from
FAME. presenting his side of the case, or
judgment was procured without
Actually, this MNT is a continuation to the remedy fair submission of the
given to you under Rule 9 – Declaration of Default. controversy.
Mistake It may either be a mistake of fact
When a complaint is filed against you, you are supposed or mistake of law made in good
to file an Answer within 30 days. If you failed to Answer faith by the defendant who was
the complaint within the reglementary period, you may be misled in the case
declared in default. The plaintiff will ask the court that you
be declared in default because the court cannot motu Excusable It must be one that is imputable
proprio declare you in default. negligence to the party
After the declaration of default, the court will allow the Note: Negligence of counsel is
plaintiff to present evidence ex parte. If you discovered binding on the client except if it
that you have already been declared in default but the was so great as to prejudice the
court has not yet rendered judgment in that case, your first client and prevent fair
remedy is to file a Motion to Lift the Order of Default or presentation of the case.
Motion to Set Aside the Order of Default under the
ground of FAME.
Affidavit of Merits
If you convinced the judge that there is a justified reason
why you failed to file an Answer, then you will be allowed Monte: Your Motion for New Trial must be accompanied
to file your Answer. by an affidavit of merits just like in Rule 9 – Declaration
of Default:
If you did not know about the case until the court renders
judgment by default, it is only after the judgment was Section 3 (b) Relief from order of
rendered that you discovered about the case – your default.— A party declared in default may at
remedy is Motion for New Trial on the ground of FAME. any time after notice thereof and before
judgment file a motion under oath to set
aside the order of default upon proper

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 showing that his failure to answer was due to Newly discovered evidence
fraud, accident, mistake or excusable (a) It was discovered after the trial, or
negligence and that he has a meritorious (b) It could not have been discovered and produced at the
defense. In such case, the order of default trial even with the exercise of reasonable diligence; and
may be set aside on such terms and (c) The evidence is of such weight that if admitted, would
conditions as the judge may impose in the probably alter the result of the action; and
interest of justice. (d) It must be material and not merely collateral,
cumulative, or corroborative.
What does the Affidavit of Merit contain?
The Affidavit of Merit contains a statement that you have Monte: A newly discovered evidence means that the
very good meritorious defense if only you are allowed to evidence was not yet discovered during the trial or even if
present evidence. You have to state that in addition to it was available, you have not discovered it despite due
your statement how the fraud, accident, mistake, diligence. And if it is submitted to the court, it will surely
excusable negligence was committed. The last part of alter the case.
your affidavit of merit will state that: if only the court will
allow me to present my evidence, I have a good and Example: You were sued for collection of sum of money.
meritorious defense. You argued that you already paid the loan but cannot
present the receipt that you have paid the loan. You only
An MNT shall be proved in the manner provided for proof presented a testimonial witness which is not very strong.
of motions. The court rendered decision against you.
a. A motion based on FAME - supported by affidavits of
merits which may be rebutted by affidavits. Before that decision became final, you discovered later on
b. A motion based on newly-discovered evidence - the receipt. The receipt was in the hands of another
supported by affidavits of the witnesses by whom such person – a friend of yours. By oversight, you gave it to him
evidence is expected to be given, or by duly and he was not around when the trial was conducted so
authenticated documents which are proposed to be you were not able to present the receipt.
introduced in evidence
After the trial was conducted, that friend of yours told you
When MNT based on FAME not accompanied by that he has the receipt. You can ask for New Trial on the
affidavit of merits ground of newly discovered evidence.
General rule: Denied
Exceptions: If the receipt was there with you all the time and you have
1. The court has no jurisdiction over the defendant/ not exerted diligent effort to find it – that is not considered
subject matter, so the judgment is null and void as newly discovered evidence. That is a forgotten
2. The judgment is defective as where a judgment by evidence.
default was rendered even before the reglementary
period to answer had expired. New Trial vs Reopening of Trial
3. The defendant was deprived of his day in court as when
no notice of hearing was furnished him New trial is different from reopening of trial. In the former,
[1 Regalado 435, 2010 Ed.] there is already a decision of the court after trial while in
reopening of trial, there is yet no decision and you want to
Newly Discovered Evidence introduce additional evidence which you forgot to present.

Elements: New Trial Reopening of Trial

(a) The evidence was discovered only after trial; There is already a There is yet no decision
(b) It could not have been discovered despite due decision of the court after and you want to introduce
diligence; trial additional evidence which
(c) It will surely alter the result of the case you forgot to present

N.B. Newly discovered evidence does not refer to Done after promulgation Properly presented after
forgotten evidence. of judgment either or both parties have
formally offered and closed
Monte: Here, you were able to participate in the trial evidence before judgment
of the case unlike in the first ground (FAME). You lost (UP Law 2020)
because your evidence was not enough. But after you
lost, you discovered new evidence that would have have Monte: In a New Trial, there is already a decision but you
altered the result of the case. want it to be set aside to allow you to present newly
discovered evidence.

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In reopening of trial, there is no decision yet. Both parties Other instances of a pro forma motion
have already presented their evidence and the case is There are other instances that the court considers an MR
now submitted for decision. While waiting for the decision as a pro forma motion.
to come, you discovered evidence you failed to include
and it is a very strong evidence that could help you win. For example, you only reiterate what has already been
stated in your Memorandum, obviously your purpose is
What will you do? only to delay the disposition of the case and that will be
You ask the court for the reopening of trial for you to be treated a pro forma motion.
allowed to present such evidence.
If it contains same arguments and manner of
Grounds for Motion for Reconsideration discussion appearing in your opposition to the
motion to dismiss, that motion will also be considered
1. The damages awarded are excessive as a pro forma motion.
That means you admit that you lost the case but the
damages awarded was too much. You can ask the A MR shall point out specifically the findings or
court to lower the damages awarded. conclusions of the judgment or final order which are not
supported by the evidence or which are contrary to law,
2. The evidence is insufficient to justify the decision or making express reference to the testimonial or
final order documentary evidence or to the provisions of law alleged
You argue that the decision of the case is not to be contrary to such findings or conclusions.
supported by sufficient evidence – the evidence
presented by the prevailing party is not enough to Note: A pro forma MNT/MR shall not toll the
justify a decision in his favor. reglementary period of appeal.
[Sec. 2, Rule 37]
3. That the decision or final order is contrary to law
When MNT considered pro forma
Monte: You have to point the part of the decision which 1. Based on the same ground raised in preceding
is not supported by sufficient evidence or which are MNT/MR already denied;
contrary to law. 2. Contains the same arguments and manner of
discussion in the prior opposition to a motion to dismiss
Pro Forma Motion which was granted;
3. The new ground alleged in the 2nd MNT was available
This is important because if you do not comply with these and could have been alleged in the first MNT which was
requirements, it is a pro forma motion. denied;
4. Based on the ground of insufficiency of evidence/that
Just like in MNT which must be accompanied by an the judgment is contrary to law, but does not specify the
affidavit of merits – when it is not accompanied by an supposed defects in judgment; or
affidavit of merit, the motion will not be entertained by the 5. Based on FAME but does not specify the facts
court. It is considered as a pro forma motion. constituting these grounds and/or is not accompanied by
an affidavit of merits. [1 Regalado 193, 2010 Ed.]
What is the effect of a Pro Forma Motion?
A pro-forma motion does not toll the running of the period Contents of Motion for New Trial or Reconsideration
to appeal. and Notice Thereof

Monte: If you file an MR or MNT, the period to appeal will SECTION 2. Contents of Motion for New Trial or
be suspended until the court will resolve or decide your Reconsideration and Notice Thereof. — The motion
motion. shall be made in writing stating the ground or grounds
therefor, a written notice of which shall be served by the
If your motion is considered a pro forma motion, it does movant on the adverse party.
not toll the running of the reglementary period to file an
appeal. If later on your motion was denied by the court A motion for new trial shall be proved in the manner
after the 15 days expired – then you already lost your right provided for proof of motions. A motion for the cause
to appeal. That is the danger. mentioned in paragraph (a) of the preceding section shall
be supported by affidavits of merits which may be
An MR will also be considered as a pro forma motion if it rebutted by affidavits. A motion for the cause mentioned
did not point out the specific portions in the decision that in paragraph (b) shall be supported by affidavits of the
are not supported by evidence or by law. witnesses by whom such evidence is expected to be
given, or by duly authenticated documents which are
proposed to be introduced in evidence.

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A motion for reconsideration shall point out specifically the Effects if Motion is Denied
findings or conclusions of the judgment or final order
which are not supported by the evidence or which are SECTION 9. Remedy Against Order Denying a Motion
contrary to law, making express reference to the for New Trial or Reconsideration.— An order denying a
testimonial or documentary evidence or to the provisions motion for new trial or reconsideration is not appealable,
of law alleged to be contrary to such findings or the remedy being an appeal from the judgment or final
conclusions. order.

A pro forma motion for new trial or reconsideration shall Movant must appeal the judgment within 15 days from
not toll the reglementary period of appeal. receipt of the order denying his motion and not just for the
balance of the period. (Neypes vs CA GR No 141524
A motion for new trial will not toll the running of the September 14 2005)
reglementary period to appeal if not accompanied by an
affidavit of merit because it will be treated as a pro forma Monte: Remember that you filed the MR or MNT within
motion. The affidavit of merit must not only allege that the the reglementary period to appeal. When you file the MR
movant has a meritorious defense, he must recite and or MNT, the running of the period to appeal will stop until
describe the facts constituting FAME. your motion is granted or denied.

Effects when Motion is Granted If your MNT was denied, what is your remedy? Can
you appeal the order of the court denying your
SECTION 6. Effect of Granting of Motion for New motion?
Trial.— If a new trial is granted in accordance with the No. You cannot appeal the order denying your MNT. But
provisions of this Rule, the original judgment or final order you can appeal the judgment itself.
shall be vacated, and the action shall stand for trial de
novo ;but the recorded evidence taken upon the former What you should do is to immediately file a Notice of
trial, in so far as the same is material and competent to Appeal. The same is true for a denial of your MR. You
establish the issues, shall be used at the new trial without appeal from the judgment of the main case and not
retaking the same. from the order denying your Motion for
Reconsideration.
SECTION 3. Action Upon Motion for New Trial or
Reconsideration.— The trial court may set aside the If you believe that your denial of Motion for
judgment or final order and grant a new trial, upon such Reconsideration constitute grave abuse of discretion
terms as may be just, or may deny the motion. If the court on the part of the judge , you can question it by Petition
finds that excessive damages have been awarded or that for Certiorari under Rule 65 – a special civil action. Your
the judgment or final order is contrary to the evidence or basis is grave abuse of discretion amounting to lack or
law, it may amend such judgment or final order excess of jurisdiction.
accordingly. (3a)
Monte: The rule before was that if you file MNT/MR within
If a new trial is granted, the original judgment or final order the reglementary period to appeal and your motion is
shall be vacated and the action shall stand for trial de denied – you have to perfect your appeal.
novo.
- IOW, you will be allowed to present your evidence, When can you perfect your appeal?
file your Answer, and contradict the evidence of The RULE BEFORE was that you only have the balance
the plaintiff. of the period that was interrupted by the filing of MNT/MR.

When the court grants the motion for reconsideration and Monte: If you file your MNT/MR on the 10th day from the
finds that excessive damages have been awarded or that time you received the decision that is adverse to you. If
the judgment or final order is contrary to the evidence or the court denied your motion, you will only have 6 days
law, it may amend such judgment or final order to appeal.
accordingly.
- If the MR is based on the ground that the decision Remember Rule 22: You exclude the day that the
of the court is contrary to law or not supported by interruption was made – so you do not include the day
evidence and the court grants the MR – it means you filed the MNT/MR. Since you filed it on the 10th day,
that the court has to reverse its own decision. It will that is not included. Since you only used up 9 days, then
have to issue a new decision in favor of the party you have at least 6 days out of the 15 day period to
who filed the MR. appeal.

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When you receive the order denying your MNT/MR, you • A 2nd MNT, based on a ground not existing nor
have 6 days to perfect the appeal. THAT WAS THE available when the first motion was made, may be
RULE BEFORE. filed within the time herein provided excluding the time
during which the first motion had been pending.
The Supreme Court changed this in the case of Neypes
vs CA, GR No 141524 September 14, 2005. Motion for Reconsideration
A 2nd motion for reconsideration of a judgment or final order is
not allowed
NEYPES VS CA
GR NO 141524 SEPTEMBER 14, 2005
In this case, the SC said that you should not only be given Summary of Post-Judgment Remedies under Rule 37
the balance but a fresh period of 15 days in order to MNT MR
reconcile Rule 41 and Rule 43. Grounds 1. Fraud, accident, 1. Damages
(Sec 1, mistake or awarded are
Resolution of Motion Rule 37) excusable excessive
negligence 2. That the
(FAME) evidence is
SECTION 4. Resolution of Motion.— A motion for new
2. Newly insufficient to
trial or reconsideration shall be resolved within thirty (30)
discovered justify the
days from the time it is submitted for resolution.
evidence decision or
final order
A motion for new trial or reconsideration must be resolved 3. That the
within 30 days from the time it is submitted. decision or
final order is
Second Motion for New Trial or Reconsideration contrary to law
Second A 2nd MNT may be A 2nd MR of a
SECTION 5. Second Motion for New Trial.— A motion MNT/MR allowed if based on judgment or final
for new trial shall include all grounds then available and (Sec 5, a ground not order is not
those not so included shall be deemed waived. A second Rule 37) existing or available allowed.
motion for new trial, based on a ground not existing nor when the 1st MNT
available when the first motion was made, may be filed was made Note: This
within the time herein provided excluding the time during prohibition does not
which the first motion had been pending. apply to
interlocutory
No party shall be allowed a second motion for orders.
reconsideration of a judgment or final order Effect if The original The court may
granted judgment or final amend the
Can you file a second motion for new trial and a order shall be judgment or final
second motion for reconsideration? vacated and the order if the ground
action shall stand relied upon prevails
Motion for New Trial – Yes, you can file a second motion for trial de novo, (Section 3, Rule 37)
for new trial provided that it is based on another ground but the recorded
that was not yet existing at the time you filed the first evidence shall be
MNT. used in the new trial
without retaking the
There are different grounds for MNT. same (Sec 6, Rule
For example the ground you used in the first MNT was 37)
FAME and it was denied. Later on, you filed a second
MNT based on another ground – this time based on newly Partial New Trial or Reconsideration
discovered evidence. You can file a second MNT.
SECTION 7. Partial New Trial or Reconsideration.— If
Motion for Reconsideration – No, you are not allowed the grounds for a motion under this Rule appear to the
to file a second MR. It is only in the Supreme Court court to affect the issues as to only a part, or less than all
where you can file a second MR. of the matter in controversy, or only one, or less than all,
of the parties to it, the court may order a new trial or grant
Single-motion rule [Sec. 5, Rule 37] reconsideration as to such issues if severable without
Motion for New Trial interfering with the judgment or final order upon the rest.
An MNT shall include all grounds then available and those
not so included shall be deemed waived.

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 24 of 25

Can there be a partial new trial or reconsideration?
Yes. But only if the issue partially resolved can be severed
from the other cases.

Effect of Order for Partial New Trial

SECTION 8. Effect of Order for Partial New Trial.—

When less than all of the issues are ordered retried, the
court may either enter a judgment or final order as to the
rest, or stay the enforcement of such judgment or final
order until after the new trial.

Remedy Against Order Denying a Motion for New

Trial or Reconsideration

SECTION 9. Remedy Against Order Denying a Motion

for New Trial or Reconsideration.— An order denying a
motion for new trial or reconsideration is not appealable,
the remedy being an appeal from the judgment or final
order.

Under Section 9, an order denying a motion for new trial

or reconsideration is NOT APPEALBALE (See Rule 41,
Section 1).

The remedy being an appeal from the judgment or final

order.

Certiorari under Rule 65 is now a remedy pursuant to

A.M. No. 07-7-12 dated December 27, 2007.

Monte: Certiorari under Rule 65 is a remedy of a denial

from an order denying your MNT/MR if it constitutes grave
abuse of discretion amounting to lack or excess of
jurisdiction. The judge gravely abused his discretion and
refuse to listen to your sounding argument because he is
already biased in favor of the other party.

Denial of the Motion: Effect

An order denying a MNT or MR is not appealable.
The remedy is an appeal from the judgment or final order.
[Sec 9, Rule 37]

Note: The order denying the motion may itself be assailed

by a petition for certiorari under Rule 65. [1 Regalado 437,
2010 Ed.]

15-day period to file the notice of appeal

The SC has allowed a fresh period of 15 days within which
to file the notice of appeal in the RTC, counted from
receipt of the order dismissing a MNT/MR.
- The fresh period of 15 days becomes significant only
when a party opts to file a motion for new trial or motion
for reconsideration. [Neypes v. CA, G.R. No. 141524
(2005)]

Note: What is appealed is the judgment itself, not the

order denying the MNT/MR. [Sec. 9, Rule 37]

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 25 of 25

 RULE 38 Second Remedy
RELIEF FROM JUDGMENTS, ORDERS, OR OTHER
PROCEEDINGS Monte: Now, but if there is already a decision, you still
have a remedy. The second remedy is a motion for new
Monte: Now, Rule 38, the petition from relief from trial. You can avail of this after a judgment has already
judgment is one of the remedies available to a person who been rendered, but the judgment has not yet come final.
lost the case because he was not able to answer the In other words, the second remedy of new trial is a remedy
complaint, and who was not able to participate in the trial you can avail during the reglementary period to appeal,
of the case. In other words, he lost because he was not which is fifteen (15) days. Within that period, you may file
able to present his evidence in court. In other words, he a motion for new trial.
was denied his day in court.
Third Remedy
So, if you lost the case because of not being able to
answer and present your evidence in court, you still have Monte: Now, if the judgment has already become final
another remedy even though there is already a final and executory – meaning, the 15-day period to file an
judgment. appeal has already expired – you still have a remedy. And
what is your third remedy? Rule 38, which is petition for
Sec. 1. Petition for Relief from Judgment, Order or relief from judgment.
Other Proceedings
Here you ask the court to set aside the judgment, and that
SECTION 1. Petition for Relief from Judgment, Order, you be allowed to file your answer and present your
or Other Proceedings. — When a judgment or final order evidence because the reason why you were not able to
is entered, or any other proceeding is thereafter taken file your answer and to present evidence is because of
against a party in any court through fraud, accident, FAME: fraud, accident, mistake and excusable
mistake, or excusable negligence, he may file a petition in negligence.
such court and in the same case praying that the
judgment, order or proceeding be set aside. (2a) FAME: Fraud, Accident, Mistake and Excusable
Negligence
A. Petition for Relief from Judgment: FAME
Fraud
Monte: If there is already a final judgment of the court or
the judgment has already become final, your remedy now Monte: Now, to give you a specific example of fraud:
– if you were deprived of your day in court because of
fraud, accident, mistake or excusable negligence (FAME) Summons was actually served on you by substituted
– your remedy now is to file a petition for relief from service because you cannot be located. It is a valid
judgment, where you ask the court to set aside that service, diba? Now, the one who received the summons,
judgment and allow you to present your evidence. who is your maid, was approached by a representative of
the plaintiff. She was given a big amount of money to keep
Now, actually, petition for relief from judgment is your the summons and the complaint so that you will not know
penultimate remedy, second to the last remedy under the about it. So, there was fraud committed by the plaintiff in
Rules if you were deprived of your day in court. order to prevent you from answering and participating in
the trial.
First Remedy
Accident
Monte: You recall that the first remedy is a motion to lift
the order of default. When a complaint was filed, and you Or, another example:
were not able to answer the complaint for which reason
you were declared in default, what is your remedy? You The summons was served through your secretary in your
can ask the court to set aside the order of default – that is office because you were not served personally; when the
if the court has not yet rendered a decision. That is before sheriff attempted to serve it to you personally, you were
judgment, while the case is still pending in court. You ask not around. So, the sheriff resorted to substituted service.
the court to set aside the order declaring you in default, It was given to your secretary.
and that you be allowed to file your answer and present
your evidence. The reason is FAME. It’s because of fraud, Is that a valid service? Yes, a valid substituted service.
accident, mistake or excusable negligence, you were not
able to answer. Now, the secretary received the summons, placed it in her
drawer but when the secretary returned at the end of the
day to her home, she met an accident, and she died. So,
she never had the opportunity to show the complaint to

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 1 of 23

you until the period to answer expired, and until the court from taking an appeal, he may file a petition in such court
had rendered judgment. and in the same case praying that the appeal be given
due course. (1a)
Now, it was only later on that you learned about the
summons and the complaint when they started to clean Monte: Now, Sec. 2 of Rule 38 refers to a petition for relief
the table of your secretary. They discovered the from the denial of appeal. Now, these are two different
complaint. Now, there was no ill-motive on the part of your things.
secretary. It was really by accident that the summons was
not delivered to you. Petition for Relief (PFR) from Judgment vs. PFR
from the Denial of Appeal
Now, what is your remedy? Your remedy is:
1) Motion to lift order of default if there is yet no Monte: Now, these are different things. This is because
judgment; or here, in Sec. 2, you have your day in court. You were able
2) If there is already a judgment, but it has not yet to answer the complaint, you were able to participate in
become final: your remedy is a motion for new the trial, you have presented your evidence, and despite
trial; or that, you lost the case.
3) If the judgment is already final and executory,
your third remedy is petition for relief from But if you lost the case, and the decision came out, you
judgment. were not able to file your appeal within the reglementary
period of 15 days. Why? Because also of FAME – fraud,
Fourth Remedy accident, mistake and excusable negligence – you were
Monte: Do you still have a remedy if you could no longer not able to file your appeal on time.
file a petition for relief from judgment because the period
to file one has already expired? The answer is yes. And So, what is your remedy?
your fourth remedy is found in Rule 47, Annulment of A: Your remedy now is not a PFR from Judgment, but a
Judgment of the RTC. And this time, you have to file it PFR from the Denial of Appeal. You were denied your
with the CA. right to appeal. You were prevented from appealing
because of fraud, accident, mistake or excusable
Summary of Remedies negligence.

Stage of the Case Remedy Monte: So, this is the difference between PFR from
There is no judgment yet Motion to lift order of Judgment under Rule 38, Sec. 1 from the PFR from
default Denial of Appeal under Rule 38, Sec. 2.
There is already a Motion for new trial
judgment, but it is not yet • File during Sec. 3. Time for Filing Petitions
final reglementary period
to appeal; SECTION 3. Time for Filing Petition; Contents and
• Grounds: FAME Verification. — A petition provided for in either of the
There is already a Petition for relief from preceding sections of this Rule must be verified, filed
judgment, and it has judgment within sixty (60) days after the petitioner learns of the
already become final and judgment, final order, or other proceeding to be set aside,
executory and not more than six (6) months after such judgment or
Failure to file a petition Annulment of Judgment final order was entered, or such proceeding was taken;
for relief of judgment or Final Orders (Rule 47) and must be accompanied with affidavits showing the
fraud, accident, mistake, or excusable negligence relied
Venue of Petition for Relief from Judgment upon, and the facts constituting the petitioner's good and
substantial cause of action or defense, as the case may
Now, in the case of petition for relief from judgment, be. (3)
where will you file your petition?
A: You will file it in the very same court which rendered Monte: Now, when can you file your petition for relief from
the judgment. judgment?
A: Your petition from relief from judgment must be filed
Sec. 2. Petition for Relief from Denial of Appeal within sixty (60) days after the petitioner – after you
learn of the judgment, final order or other proceeding to
SECTION 2. Petition for Relief from Denial of Appeal. be set aside, and not more than six (6) months after
— When a judgment or final order is rendered by any such judgment or order was entered.
court in a case, and a party thereto, by fraud, accident,
mistake, or excusable negligence, has been prevented Monte: You will notice that there are two prescriptive
periods here: 60 days and 6 months. The 60 days means

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60 days from knowledge of the decision. From the time prevented you from answering. And also, it must state that
you learned about the decision, you only have 60 days to you have a very good and substantial defense so that the
file your PFR from Judgment. But, it should not exceed 6 court will allow your petition for relief from judgment.
months from the entry of judgment.
However:
This is where the amendment becomes very relevant
because the basis here is “entry of judgment”, not the REPUBLIC VS. DE LEON, 101 PHIL 773
“finality of judgment”. Such affidavit of merit is not anymore required when the
judgment or order is void for want of jurisdiction.
And as I have said already in my previous lecture, there
is a difference between “entry of judgment” and “finality of Monte: “Want of jurisdiction” here means that the
judgment”. defendant was not really served with summons through
no fault of the defendant or his representative. Okay?
Finality of Judgment Entry of Judgment
Judgment becomes final But the entry of judgment Example: So, if there was really no summons served on
after the lapse of the 15- refers to the time that the the defendant, and the defendant was declared in default,
day period to file answer*. clerk of court enters that and because of that the plaintiff presented his evidence
It automatically becomes final judgment in the book ex parte, the court rendered judgment in favor of the
final. of entries of judgment. plaintiff, and the judgment has now become final, and only
And this could fall under after the judgment became final that the defendant
*A/N: Dean Monte may two different dates, for learned about the case against him because he was
have intended “appeal” sure. never served with summons by the sheriff – the sheriff just
instead of “answer”. said that he served it already even though he did not serve
it, like nagtinapulan ba ang sheriff, or whatever reason, or
Now, the basis in Rule 38 is entry of judgment, not like gibayran kaha ang sheriff. It’s different from the
finality. That is why, if the clerk of court is lazy or the clerk example I gave you a while ago, nga gibayran sa plaintiff
of court did not right away enter the final judgment in the ang secretary nimo, or a person in your residence who
book of entries of judgment, it will extend the period of the received the summons – because there was already valid
losing party to file a petition for relief from judgment. That service of summons – and the fraud there was committed
is good for the losing party, but bad for the prevailing by the plaintiff and the person on your side.
party.
But here, if the fraud was between the plaintiff and the
In order to avoid this, the 1997 Rules provides that the sheriff – they connived that the summons will not be
date the judgment becomes final shall also be considered served on you – then the court has not yet acquired
as the date of entry of judgment. So, wala nay jurisdiction over your person. So, the judgment cannot be
diperensya karon. The moment the 15-day period to file valid because the court has no jurisdiction yet over your
an appeal expires, the judgment becomes final, and that person.
day is also considered to be the date the judgment was
entered, even if in reality, the judgment was entered a If that was the reason that was used in support to your
week after. It does not matter when the clerk of court petition for relief from judgment – that no summons was
enters the judgment in the book of entries of judgment. served and that the court has not acquired jurisdiction
Okay? over your person, there is no need for an affidavit of merit.

Contents of the Petition That the was the ruling of the court in that case of
Republic vs. De Leon.
So, what are the contents of your petition for relief
from judgment? Sec. 4. Order of the Court Requiring Answer
A: A petition for relief from judgment must be verified and
accompanied with affidavits showing the fraud, SECTION 4. Order to File an Answer. — If the petition
accident, mistake, or excusable negligence relied upon, is sufficient in form and substance to justify relief, the
and the facts constituting the petitioner’s good and court in which it is filed, shall issue an order requiring the
substantial cause of action or defense, as the case may adverse parties to answer the same within fifteen (15)
be. (Sec. 3) days from the receipt thereof. The order shall be served
in such manner as the court may direct, together with
Monte: So, the requirement is the same as that of a copies of the petition and the accompanying affidavits.
motion to lift the order of default, or a motion for new trial. (4a)
Pareha rag requirements. There is an affidavit of merit
that will explain the fraud, accident, mistake or excusable
negligence that causes you not to answer or that

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Monte: Now, when a petition for relief from judgment is Sec. 6. Proceedings After Answer is Filed: Hearing
filed in court, the court will examine whether your petition of the Petition
is sufficient in form and substance to justify relief.
SECTION 6. Proceedings After Answer is Filed. —
If the court finds that your petition is sufficient in form and After the filing of the answer or the expiration of the period
substance, the court will issue an order requiring the therefor, the court shall hear the petition and if after such
adverse party – the plaintiff – to answer your petition for hearing, it finds that the allegations thereof are not true,
relief from judgment within fifteen (15) days from receipt the petition shall be dismissed; but if it finds said
thereof. allegations to be true, it shall set aside the judgment or
final order or other proceeding complained of upon such
After the plaintiff filed his answer or comment to your terms as may be just. Thereafter the case shall stand as
petition for relief from judgment, the court will now set the if such judgment, final order or other proceeding had
petition for relief from judgment for hearing, where the never been rendered, issued or taken. The court shall
movant-defendant – the petitioner-defendant – will then proceed to hear and determine the case as if a timely
present evidence to support his petition for relief from motion for a new trial or reconsideration had been granted
judgment, and the other party will also be given a chance by it. (6a)
to present evidence to rebut or contradict the claim of the
petitioner-defendant. Hearing of the Petition

Sec. 5. Preliminary Injunction Pending Proceedings If the court grants the petition, it will then conduct a
hearing of the case on the merits. So, there are actually
SECTION 5. Preliminary Injunction Pending two hearings to be conducted by the court:
Proceedings. — The court in which the petition is filed, 1) To determine whether the petition will be granted;
may grant such preliminary injunction as may be and
necessary for the preservation of the rights of the parties, 2) The other will be on the merits if the petition is
upon the filing by the petitioner of a bond in favor of the granted.
adverse party, conditioned that if the petition is dismissed
or the petitioner fails on the trial of the case upon its Monte: So, there are actually 2 hearings here. After the
merits, he will pay the adverse party all damages and court conducted the hearing relative to your petition for
costs that may be awarded to him by reason of the relief from judgment – if the court finds that your petition
issuance of such injunction or the other proceedings is meritorious, it will grant your petition for relief from
following the petition; but such injunction shall not operate judgment.
to discharge or extinguish any lien which the adverse
party may have acquired upon the property of the When the court grants your petition for relief from
petitioner. (5a) judgment, it does not mean that you already win the case.
No! What the court will do is just to set aside the
In the meantime, while the case is pending, the court may judgment momentarily and allow you now to present
grant preliminary injunction for the preservation of the your evidence. Remember, you lost the case because you
rights of the parties, upon filing of the petitioner of a bond were not heard; you were not able to present your
in favor of the adverse party. evidence, diba?

Monte: The preliminary injunction that the court may So, after the grant of your petition for relief from judgment,
issue is to prevent the execution of the judgment. there will be another hearing, and this time, it will be a
Remember, that when the petition for relief from judgment hearing on the merits, diba? It will be a hearing on the
is filed, there is already a final judgment. And that final merits where you will present your evidence-in-chief.
judgment is already subject to execution – it can be
executed anytime, diba? So, the plaintiff – the prevailing Sec. 7. Procedure Where the Denial of an Appeal is
party – may ask the court for execution. Set Aside

That is why when you file a petition for relief from SECTION 7. Procedure Where the Denial of an Appeal
judgment, you should also ask from the court at the same is Set Aside. — Where the denial of an appeal is set
time the issuance of a writ of preliminary injunction to aside, the lower court shall be required to give due course
prevent the execution of the judgment until your petition to the appeal and to elevate the record of the appealed
for relief from judgment is resolved. Okay? case as if a timely and proper appeal had been made. (7a)

Now here, you will have to put up an injunction bond Where the denial of an appeal is set aside, the lower court
before the court will grant the preliminary injunction in shall be required to give due course to the appeal and to
order to hold in abeyance the issuance of the writ of elevate the record of the appealed case as if a timely and
execution. Okay? Okay. proper appeal had been made.

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Monte: Now, the procedure where the denial of an appeal And the next thing to happen will now be the execution or
is set aside – so we are now talking on the second section satisfaction of the judgment.
of Rule 38 – Petition for Relief from the Denial of an
Appeal. Here, you were able to answer, you were able to Rule 39 is like a graduation ceremony, where, like in the
participate in the trial, you were able to present evidence, law school you work hard for 4 years – just like in a
and you lost the case. litigation, you work hard for several years! Presenting
evidence, filing motions, et cetera. Then, eventually
BUT after you lost the case, you were not able to file your comes the time when the court decides. And, the decision
appeal because of fraud, accident, negligence and of the court has now become final and executory. That is
excusable negligence (FAME). So, you file a petition for where you now will reap the fruits of your labor. And the
relief from the denial of an appeal, and if the court would writ of execution is now like your diploma in the law
grant that – where the denial of your appeal is set aside, school.
the lower court shall be required to give due course to the
appeal, and to elevate the record of the appealed case as A. Kinds of Execution
if a timely and proper appeal had been made. That is for
the petition for relief from the denial of an appeal. As to nature:
1) Execution as a matter of right;
So, the court will simply set aside momentarily the 2) Execution as a matter of judicial discretion
judgment and allow the defendant or the losing party to
file his appeal. It is as if he has now filed his appeal on As to enforcement:
time. Okay, so that is the petition for relief from the denial 1) By motion;
of an appeal – the third remedy available to you. 2) By independent action

Review of Rule 38 Execution as to Nature

Monte: So, to recall, a person who lost the case because Execution as a matter of right
he was deprived of his day in court – because he was not
able to answer and present his evidence in court – has so Sec. 1. Execution upon Judgments or Final Orders
many remedies under the law.
SECTION 1. Execution Upon Judgments or Final
Starting from: a motion to lift the order of default or a Orders. — Execution shall issue as a matter of right, on
motion to set aside the order of default. Then, if there is motion, upon a judgment or order that disposes of the
already a judgment, but the judgment has not yet become action or proceeding upon the expiration of the period to
final: motion for new trial; and if there is already a final appeal therefrom if no appeal has been duly perfected.
judgment, you still have a third remedy: petition for relief (1a)
from judgment, which you can bring within 60 days from
knowledge of the judgment, but not more than 6 months If the appeal has been duly perfected and finally resolved,
from the date the judgment was entered. If the 6-month the execution may forthwith be applied for in the court of
period has already expired, your last recourse now will be origin, on motion of the judgment obligee, submitting
annulment of judgment by the Court of Appeals, governed therewith certified true copies of the judgment or
by Rule 47, which we will discuss later on. judgments or final order or orders sought to be enforced
and of the entry thereof, with notice to the adverse party.
Now, let’s move on to the longest Rule of the Rules of
Court: The appellate court may, on motion in the same case,
when the interest of justice so requires, direct the court of
RULE 39 origin to issue the writ of execution. (n)
EXECUTION, SATISFACTION AND EFFECTS OF
JUDGMENT Monte: Execution becomes a matter of right when the
judgment of the court has already become final, and no
Monte: After the trial where both parties were given the appeal was filed within the reglementary period to appeal
chance to present their evidence, the court will now by the losing party.
render judgment. And once that judgment is rendered, the
losing party or either party – because it’s possible that So, what will you do if you are the prevailing party?
even the winning party may want to appeal – so any party A: You file a motion for writ of execution in the court that
may appeal the decision of the trial court within a period rendered judgment. Now, when execution is a matter of
of 15 days. right, it becomes a ministerial duty of the court to grant
your motion for execution. The court cannot deny it as a
But if no appeal is filed within the reglementary period for general rule.
appeal, then that judgment becomes final and executory.

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Execution as a matter of judicial discretion Monte: There is no need for him to be notified because
he is supposed to know that there is already a judgment
Sec. 2. Discretionary Execution – because he received the judgment – but he allowed the
period to appeal to expire, so that means he’s ready to
SECTION 2. Discretionary Execution. — face the consequences; he’s ready to pay what is orderd
by the court. Ngano wa man siya ni-apelar? So di na siya
(a) Execution of a judgment or final order pending kailangan pahibaw-on. There is no more need for him to
appeal. — On motion of the prevailing party with notice to be notified.
the adverse party filed in the trial court while it has
jurisdiction over the case and is in possession of either Now, there is another execution here where the case was
the original record or the record on appeal, as the case appealed. Like, the RTC decided the case. The losing
may be, at the time of the filing of such motion, said court party appealed the case to the CA, and now, the CA
may, in its discretion, order execution of a judgment or decided to affirm the decision of the RTC. The losing party
final order even before the expiration of the period to did not anymore appeal the decision of the RTC to the
appeal. SC. So, the decision of the CA has now become final and
executory.
After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the appellate Where to File Motion for Execution:
court.
1) Court of origin; or
Discretionary execution may only issue upon good 2) Appealed case
reasons to be stated in a special order after due hearing.
Court of Origin
(b) Execution of several, separate or partial
judgments. — A several, separate or partial judgment Question, where will you file you motion for execution
may be executed under the same terms and conditions of judgment? In the RTC or in the CA?
as execution of a judgment or final order pending appeal. A: In the RTC; in the court of origin. It is not the appellate
(2a) court that will issue the writ of execution.

Monte: Now, the second one is what we call as the Next question. Do you have to inform the losing party
execution as a matter of judicial discretion. of your motion for execution in the RTC in this
appealed case?
Here, there is already a judgment, but the judgment has A: The answer is yes. This time, you have to notify the
not yet become final. The reglementary period to appeal other party because the RTC may even conduct a hearing
has not yet expired. So, you can ask for execution of a on your motion for execution.
judgment even though that judgment has not yet become
final if there is a valid ground for discretionary execution. Monte: The reason why you have to notify the losing party
is because there might be some supervening events that
So here, it’s called execution as a matter of judicial transpired while the case is pending that would make the
discretion, because it is within the discretion of the court. execution inequitable or not right anymore. There might
we will discuss that later. be something that happened because of the lapse of time
– events or circumstances that may change the situation
B. When is execution a matter of right? of the parties. So, he must be notified, and he has the right
to object and explain to the court why execution must not
Monte: Let’s go back to execution as a matter of right. be granted.

Where will you file your execution as a matter of So, the motion for execution shall be filed in the court of
right? origin, which is the RTC.
A: In the same very same court that rendered judgment.
Now, when can you file it?
When you file a motion for execution in the court that A: The rule before was that the RTC must wait for the
rendered judgment, do you have to notify the losing records to be returned by the CA to the RTC. It is only
party? Do you have to furnish them a copy of your when the records of the case is already returned to the
motion in order for them to attend? RTC that the prevailing party can file a motion for
A: The answer is no because there he has no more execution.
standing there in court. Once he lost, no more. He should
not be notified anymore. That is no longer the case. Under the 1997 Revised
Rules, the prevailing party need not wait for the records
of the case to be returned to the RTC from the CA. All he

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has to do is to secure a certified true copy of the Monte: Now, when the judgment becomes final, as I have
decision of the CA, and he can attach to his motion, and said, the next thing to happen is the execution of the
the RTC can already entertain his motion for execution. judgment, and it becomes a ministerial duty of the court
to execute that.
Monte: Because, our experience before, is that if we wait
for the records to be returned from the RTC – especially But there are instances when the court may refuse to
before, during the time when there was yet no CA for issue the writ of execution despite the finality of the
Visayas, and CA for Mindanao; when there was only one judgment. Although I already said that when the judgment
CA based in Manila – it will take really months before the becomes final, it becomes the ministerial duty of the court
records will be returned to the RTC. Dugay kaayo mabalik to issue the writ of execution, but there are instances
ang records. So, in the meantime, the losing party has when the court may not issue the writ or refuse to issue
enough time to hide his properties that may be levied on the writ of execution.
execution by the sheriff. So, makadalidali pa siyag tago
sa iyang properties. So, that’s the reason why. 1) Supervening events render execution unjust or
impossible
Now, we already have a CA in Visayas – if your case is in
Cebu, it’s very easy. You just go to the CA in Banawa – Monte: One of those instances is when the subsequent
they’re holding office there – and you can get a certified facts and circumstances – or there are supervening
true copy right away and you can file it with the RTC. events which transpire and which render such execution
Okay. That is execution as a matter of right. unjust or impossible.

Appealed Case (When Motion for Writ of Execution Okay, like in the case Butuan City vs. Ortiz.
May Be Filed with the CA)
BUTUAN CITY VS. ORTIZ, ET. AL.
Monte: However, there is an instance when the CA will G.R. No. L-18054, December 22, 1961
be the one to accept or where you can file your motion for
writ of execution. Monte: Here, the trial court ordered the reinstatement of
the plaintiff to his former position plus damages. But in
You can file your motion for writ of execution in the CA if another case related to the civil case, the Civil Service
the RTC, which is the court of origin, is dilly-dallying Commission found him guilty of the charge that he was
the issuance of the writ. Naglangay-langay. administratively dismissed from service. So here, there is
a supervening event that transpired which prevented the
You can go to the CA, and the CA will issue an order execution of the judgment.
directing the RTC to immediately issue the writ of
execution. The CA will not be the one to issue the writ of Monte: Another one which is a very good example was
execution. They will not issue the writ of execution. They when plaintiff filed a case against the defendant for
will only order the RTC to act accordingly and issue the ejectment. He wants to eject the defendant; the defendant
writ. So, it’s still the RTC who will issue the writ of is a tenant of the plaintiff. And the court ruled in favor of
execution. the plaintiff, ordering the defendant to vacate the land.
C. When the court may refuse to issue the writ of By, the way, while ejectment case was pending, the
execution despite finality of judgment: plaintiff borrowed money from the bank. And he used the
very same land as a collateral for his loan. He executed a
1) When subsequent facts and circumstances real estate mortgage in favor of the bank, and he was not
(supervening events) transpire, which render such able to pay. So the bank foreclosed the mortgage. And
execution unjust or impossible (Butuan City vs. Ortiz, you know what will happen next. The land was sold in a
et. al); or public auction sale, and the defendant-tenant was the one
who bought it. He was the one who submitted the highest
2) When the judgment has been novated by the parties bid, and so it was awarded to him. So, he now becomes
(Fua Cam Lu vs. Yap Fauco); an owner of the land. After the lapse of the period to
redeem – because there’s a redemption period – and the
3) When a petition for relief from judgment is filed, and a plaintiff failed to redeem, so the land was now awarded to
writ of preliminary injunction is issued; the defendant-tenant.
4) When the judgment has become dormant and the Now came the decision of the court for ejectment, and the
five-year period to enforce it by a mere motion has court ordered the defendant-tenant to vacate. How could
expired; and the judgment of the court be enforced evicting the
defendant, when the defendant is now the owner?
5) When the judgment is incomplete.

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In other words, there is a supervening event that Now, the defendant defaulted in paying the fourth
transpired which renders the execution unjust or installment. Can the plaintiff now ask the sheriff to
impossible. execute the judgment?
A: No more. The judgment was already novated by the
A/N: No case title or citation was provided. subsequent agreement of the plaintiff and the defendant
to pay the obligation by installment.
PHILIPPINE VETERANS BANK CASE
A/N: No exact case title or citation given. Okay, so that’s another instance where the writ of
execution cannot be issued.
Another one was a case – I think this was the case of
Philippine Veterans Bank – where the plaintiff filed a case DIGEST:
against the bank, and the bank lost. The court ordered the
bank to pay the plaintiff some amount as damages. Facts:
− Plaintiff-appellee, Fua Cam Lu, obtained in Civil Case
Now, the bank was placed under receivership – na- No. 42125 of CFI Manila a judgment sentencing the
bankrupt – and it was placed under the receivership of the defendants-appellants, Yap Fauco and Yap Singco,
Central Bank. You know what is receivership. When a to pay P1,538 with legal interest and costs.
bank or under company is under receivership, no writ of − By virtue of Writ of Execution, a parcel of land
execution can be enforced against the assets of the bank belonging to Fauco and Singco, assessed at P3,550
until the receivership is terminated. and situated in Sorsogon, was levied upon by
Provincial Sheriff (made a notice; posted, and
So, now the plaintiff filed a motion for execution so he can published in the Press, that said land would be sold
collect the money that he is supposed to collect from the at public auction).
bank that was awarded to him. But the sheriff cannot − 1933 – Then, Fauco and Singco executed a mortgage
enforce it against the bank because the bank is now under in favor of Fua, wherein it was stipulated that the
receivership. You have to wait until the receiver could obligation under judgment in Civil Case 42125 was
settle the assets and the liabilities of the bank. reduced to P1,200 payable in 4 installments of P300;
that to secure payment of said P1,200, a camarin
So here, there is a supervening event. And what is that belonging to Fauco and Singco, and built on the land,
supervening event? The placing of the bank under was mortgaged to Fua. As a result of this agreement,
receivership. So, these are examples where the court the sale of the land advertised by the provincial sheriff
may refuse to issue the writ of execution. did not take place.
− However, pursuant to an alias Writ of Execution
2) Judgment has been novated by the parties issued by CFI Manila, the Provincial Sheriff, w/o
publication of notice, sold said land at a public auction
Monte: Another one is when the judgment has been to Fua for P1,923. The Provincial Sheriff executed a
novated by the parties; the case of Fua Cam Lu vs. Yap final deed in favor of Fua.
Fauco. − Fauco and Singco refused to vacate land.
− 1939 - Fua instituted present action against Fauco
FUA CAM LU VS. YAP FAUCO, 74 PHIL. 287 and Singco due to their refusal to recognize Fua's
title, and to vacate the land.
Monte: Novation takes place when there is a change of − Fauco and Singco’s defense: their obligation under
the obligation as agreed upon by the parties. A good the judgment in Civil Case No. 42125 was novated by
example here is that plaintiff filed a case against mortgage executed by them in favor of Fua, and that
defendant for a sum of money; the court ruled in favor of Sheriff's sale via alias WOE was void for lack of
the plaintiff and ordered the defendant to pay, let’s say, necessary publication.
P1Mn. He is supposed to pay that in one payment, diba? − Lower Court: declared Fua as owner of land, ordering
Lump-sum na, dili na installment, diba? Kay writ of Fauco and Singco to deliver the same to him.
execution man, judgment na gud na. So, the sheriff will − Fauco and Singco seek reversal of judgment.
have to collect the P1Mn from the defendant.
Issue: Is there novation of the obligation through the
Now, despite the fact that there is already a final execution of mortgage by Fauco and Singco in favor of
judgment, the defendant went to the plaintiff and pleaded Fua?
and begged that he cannot afford to pay the 1Mn in one
payment. He asked that he will pay it by installment at Ruling: Yes.
P100k per month for 10 months. And the plaintiff agreed.
So, they entered into a written agreement that the plaintiff − Court concurred with the theory that Fauco and
will pay P100k per month until it is fully paid. Singco's liability under the judgment in the civil case

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 was extinguished by settlement evidenced by it by an independent action. So, di na makaissue ug writ
mortgage executed by them in favor of Fua. of execution ang korte.
− Although the said mortgage did not expressly cancel
the old obligation, this was impliedly novated by 5) When the judgment is incomplete
reason of incompatibility from fact that -- judgment
was for P1,538 payable at one time, did not provide When the Court Can Still Amend A Final and
for attorney's fees, and was not secured; the new Executory Judgment
obligation is for P1,200 payable in installments,
stipulates attorney's fees, and is secured by a Monte: Now, earlier I mentioned about the principle of
mortgage. immutability of judgments – that once the judgment
− Fua, however, argues that the later agreement merely becomes final and executory, it could no longer be
extended time of payment, and did not take away his corrected or changed, even if it is erroneous.
concurrent right to have the judgment executed.
Court ruled, this could not have been the purpose for But there are exceptions to this rule of immutability. The
executing the mortgage, because it was recited that court can still amend a final and executory judgment if the
Fauco and Singco promised to pay P1,200 to Fua as correction is only for:
settlement of judgment in that civil case. Said 1) The correction of clerical errors, or the correction
judgment cannot be said to have been settled, unless of typographical errors; or
it was extinguished. 2) To clarify an ambiguity; or
− On another note, Court ruled that the Sheriff's sale in 3) In a judgment for support, because a judgment for
favor of Fua is void because no notice was published. support is one judgment that will never become
− Lack of new publication is shown by Fua's own final, because it can be changed/amended
evidence; he admitted that there was no new anytime as there is a change of condition of the
publication, and this destroyed the presumption of parties.
regularity of performance of official duty.
− In his brief, Fua merely argued "Sec 460 of Act 190 As we have discussed in Civil Law, support is one
authorized the Sheriff to adjourn any sale upon judgment that will not become final because that
execution to any date agreed upon in writing by the can be amended, changed anytime by the court.
parties . . . and does not require the Sheriff to publish Later on, if the income of the person obliged to
anew the public sale which was adjourned." give support will increase, and the needs of the
− Here, Fua correctly stated the law but failed to show person to be supported also increase, then there
that it supports his side. There was no any written should be corresponding increase of the amount
agreement between the parties to adjourn the sale of monthly support that the court has ordered.
advertised. Also, it is not pretended that the sale in
favor of Fua was by virtue of a mere adjournment, it SUMMARY:
appearing that it was made pursuant to an alias writ
of execution. GEN: Under the principle of immutability of judgments, a
judgment, once it has attained finality, can never be
3) When a petition for relief from judgment is filed, altered, amended, or modified, even if the alteration,
and a writ of preliminary injunction is issued amendment or modification is to correct an erroneous of
judgment.1
Monte: Although there’s already a final judgment which
could be the subject of execution, but the defendant timely Exceptions (per Monte Slides):
filed a petition for relief from judgment, and asked the 1) To make corrections of clerical errors;
court for the issuance of a writ of preliminary injunction, 2) To clarify an ambiguity;
and the court granted a writ of preliminary injunction. So, 3) In a judgment for support, because it can be amended
execution cannot be issued. anytime

4) When the judgment has become dormant and the Note: Additional exceptions, as per 2020 UP BOC
five-year period to enforce it by a mere motion has Remedial Law Reviewer:
expired; and
4) Nunc pro tunc entries2 which cause no prejudice to
Monte: You can enforce the judgment by a mere motion any party [Filipinas Palmoil Processing, Inc. v.
within five years only. After five years, you have to enforce Dejapa, G.R. No. 167332 (2011)];

1
FGU Insurance Corporation (now BPI/MS Insurance Corporation) v. Its office is not to supply omitted action by the court, but to supply an
RTC, et al., 659 Phil. 117, 123 (2011) omission in the record of action really had, but omitted through
2
A nunc pro tunc entry in practice is an entry made now of something inadvertence or mistake. (Perkins vs. Haywood, 31 N. E., 670, 672)
which was actually previously done, to have effect as of the former date.

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5) Whenever circumstances transpire after finality of the After the trial court has lost jurisdiction, the motion for
decision, rendering its execution unjust and execution pending appeal may be filed in the appellate
inequitable [Apo Fruits Corp. v. Land Bank of the court.
Phils., G.R. No. 164195 (2010)];
Discretionary execution may only issue upon good
reasons to be stated in a special order after due
6) In cases of special and exceptional nature, when it is
hearing.
necessary in the interest of justice to direct
modification in order to harmonize the disposition with (b) Execution of several, separate or partial
the prevailing circumstances [Industrial Timber Corp. judgments.— A several, separate or partial judgment
v. Ababon, G.R. No.164518 (2006)]; may be executed under the same terms and conditions
as execution of a judgment or final order pending
7) In case of void judgments [FGU Insurance v. RTC appeal. (2a)
Makati, G.R. No. 161282 (2011)];

8) Where there is a strong showing that a grave injustice • It is a kind of execution done even if the period to
would result from an application of the Rules [Almuete appeal for the losing party has not yet expired, or
v. People, G.R. No. 179611 (2013)]; there has already been an appeal made.
• We have Discretionary Execution and Execution
9) When there are grounds for annulment of judgment Pending Appeal.
or petition for relief [Gochan v. Mancao, G.R. No. • Discretionary Execution may only issue upon good
182314 (2013)]. reasons to be stated in a special order after due
hearing.
Grounds for Quashal of a Writ of Execution • After the trial court has lost jurisdiction, the motion for
execution pending appeal may be filed in the
Monte: Now, the writ of execution can be quashed on the appellate court.
following grounds. So, even if there is already a writ of • The Court of Appeals, has no authority to issue
execution issued by the court, the losing party can ask file immediate execution pending appeal of its own
a motion for the quashal of the writ of execution on the decisions therein. Discretionary execution is allowed
following grounds: pending appeal only on a judgment of the trial court
upon good reason to be stated in a special order. A
1) It was improvidently issued; judgment of the CA cannot be executed pending
2) It is defective in substance; appeal.
3) It is issued against the wrong party;
4) The judgment was already satisfied; Dean Monte: If the decision is that of the Municipal Trial
5) It was issued without authority; Court, and the period to appeal the decision to the RTC
6) There is a change in the situation of the parties; has not yet expired, you can ask the MTC to make an
7) The controversy was never validly submitted to immediate or discretionary execution. But if there is
the court; already an appeal and the records of the case has already
8) The writ of execution varies the terms of the been forwarded to the RTC, you can file with the RTC an
judgment; and execution pending appeal.
9) It is enforced against property exempt from
execution. If the case was filed originally in the RTC and was decided
already but the period to appeal has not yet expired, you
DISCRETIONARY EXECUTION can ask for discretionary execution with the RTC (the
same rule will apply). If an appeal was already filed with
the CA and the records of the case has already been
SECTION 2. Discretionary Execution.— forwarded, you cannot anymore ask for immediate
(a) Execution of a judgment or final order pending execution from the RTC because it has already lost
appeal.— On motion of the prevailing party with notice jurisdiction. So now, you can file your Execution Pending
to the adverse party filed in the trial court while it has Appeal with the CA.
jurisdiction over the case and is in possession of either
the original record or the record on appeal, as the case Now, if the CA decides the case and the decision was
may be, at the time of the filing of such motion, said appealed to the SC, can you ask the CA for immediate
court may, in its discretion, order execution of a execution or discretionary execution? No. Out of
judgment or final order even before the expiration of the respect to the SC. When the case is already pending
period to appeal. appeal before the SC, nobody should touch it (charot).
Only the SC has exclusive control or supervision over the
case.

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Good reasons for the court to grant execution JUDGMENT NOT STAYED BY APPEAL (IRAS)
pending appeal

1. Where the lapse of time will make the judgment SECTION 4. Judgments Not Stayed by
Appeal.— Judgments in actions for injunction,
ineffective;
receivership, accounting and support, and such other
For example, if we have to wait for the judgment to
judgments as are now or may hereafter be declared to
become final and executory or if it is appealed, it
be immediately executory, shall be enforceable after
might render the judgment ineffective especially if the
subject matter of the case would deteriorate fast their rendition and shall not be stayed by an appeal
(such as a truck of bananas). taken therefrom, unless otherwise ordered by the trial
court. On appeal therefrom, the appellate court in its
2. Where the appeal is clearly dilatory;
discretion may make an order suspending, modifying,
It is the CA who decides whether the appeal is
restoring or granting the injunction, receivership,
dilatory.
accounting, or award of support.
3. Where the judgment is for support;
4. Where the article subject of the case would The stay of execution shall be upon such
deteriorate; (somewhat related to par.1) terms as to bond or otherwise as may be considered
5. Where the defendants are exhausting their proper for the security or protection of the rights of the
income; adverse party. (4a)
6. Where the judgment debtor is in imminent danger
of insolvency;
7. Where the prevailing party is of advance age. Judgments not stayed by appeal:
1. Injunction
2. Receivership
REMEDY OF CERTIORARI 3. Accounting
If the court grants the discretionary execution, the losing 4. Support
party may avail of certiorari if such discretionary execution
is granted without basis. EXECUTION BY MOTION OR BY INDEPENDENT
ACTION
HOW TO PREVENT EXECUTION PENDING APPEAL
SECTION 5. Effect of Reversal of Executed
By offering to put up a supersedeas bond. Judgment.— Where the executed judgment is
reversed totally or partially, or annulled, on appeal or
SECTION 3. Stay of Discretionary otherwise, the trial court may, on motion, issue such
Execution.— Discretionary execution issued under orders of restitution or reparation of damages as
the preceding section may be stayed upon approval equity and justice may warrant under the
by the proper court of a sufficient supersedeas bond circumstances. (5a)
filed by the party against whom it is directed, SECTION 6. Execution by Motion or by
conditioned upon the performance of the judgment or Independent Action.— A final and executory
order allowed to be executed in case it shall be finally judgment or order may be executed on motion within
sustained in whole or in part. The bond thus given may five (5) years from the date of its entry. After the lapse
be proceeded against on motion with notice to the of such time, and before it is barred by the statute of
surety. (3a) limitations, a judgment may be enforced by action. The
revived judgment may also be enforced by motion
However, the filing of a supersedeas bond does not entitle within five (5) years from the date of its entry and
the judgment debtor to the suspension of execution as a thereafter by action before it is barred by the statute of
matter of right (NAWASA VS. CATOLICO, L21705 limitations. (6a)
AND L-24327, APRIL 27, 1967). Hence, where the
needs of the prevailing party are urgent, the court can • PNB V. BONDOC (1965)
order immediate execution despite such supersedeas • PNB V. DELOSO REITERATED IN THE
bond (DE LEON V. SORIANO). CASE OF LUZON SURETY CO. INC. VS.
IAC (1987)
• SEC. 6 OF RULE 39 RESTORED BONDOC
RULING.

Dean Monte: Execution by mere motion can be done only

within 5 years from the ENTRY OF JUDGMENT/TIME
THE JUDGMENT BECOMES FINAL.

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The prevailing party must have to execute the judgment According to the Bondoc ruling, when the court revives
by filing a motion for issuance of a writ of execution in the the judgment in the 8th year after it becomes final, the
court that renders the judgment. order of the court reviving the judgment is a new judgment
itself which can be enforced by a mere motion within 5
If the 5-year period has already expired, you have to years and by another action for revival after 5 years but
revive the judgment by filing an independent action, a not more than 10 years. So on and so forth.
case for revival of judgment. This can be done after 5
years but not beyond 10 years from the finality of the REPUBLIC V. CLARO YAP
judgment. GR NO 231116, FEB 7, 2018
The statute of limitations and Section 6, Rule 39 of the
Revival of Judgment Rules of Court do not apply in land registration
An action for revival of judgment is a procedural means proceedings. This provision of the Rules refers to civil
of securing the execution of a previous judgment which actions and is not applicable to special proceedings, such
has become dormant after the passage of 5 years as a land registration case. This is so because a party in
without it being executed upon motion of the prevailing a civil action must immediately enforce a judgment that is
party. secured as against the adverse party, and his failure to
act to enforce the same within a reasonable time as
The action must be filed within 10 years from the date provided in the Rules makes the decision unenforceable
the judgment became final since the action to enforce against the losing party.
a judgment prescribes in 10 years from the finality of
judgment. [Art. 1144(3), CC] Rule 39 will not apply in special proceedings where the
purpose is to establish a status, condition, or fact. In land
A revived judgment is deemed a new judgment registration proceedings, the ownership by a person of a
separate and distinct from the original judgment. It is parcel of land is sought to be established after the
not a continuation. [PNB v. Bondoc, G.R. No. L-20236 ownership has been proved and confirmed by the judicial
(1965)] declaration. No further proceeding to enforce the
ownership is necessary except when the adverse or
How enforced losing party had been in possession of the land and the
A revived judgment may also be enforced the same winning party desires to oust him therefrom.
way. [Sec. 6, Rule 39]
In the Claro case, a parcel of land was located in Carcar,
Note: The 10-year prescriptive period commences to but is still within the territorial jurisdiction of the RTC of
run from the date of finality of the revived judgment and Cebu. A decree was issued by the court in 1920 in favor
not the original judgment. [PNB v. Bondoc, G.R. No. L- of the predecessor in interest of Claro Yap, his
20236 (1965)] grandfather. But although there was a decree, no original
certificate of title was issued by the court. When it was
passed on to Claro Yap, he decided to have it titled. He
Suppose you decided to execute the judgment on the filed a petition for the cancellation of the old decree and
8th year, you filed an action for the revival of the the issuance of the new decree, asking the court that an
judgment in court. If the court grants it, when can you original certificate of title be issued in his name. The court
execute the judgment and how? ruled in favor of Claro Yap. When the OSG went to the
You can enforce that within 5 years on a mere motion. CA, the CA affirmed the decision of the RTC except that
You still have until the 13th year (8+5 years) to file a motion the OCT that will be issued should still be in the name of
for the revival of judgment. the grandfather who was the decreed owner. The OSG
went to the SC and this time with an additional argument
If you failed to file such motion on the 13th year, can saying the action of Claro Yap is already barred by
you file a second motion for revival of judgment? prescription; that the decree should have been enforced
In the case of Bondoc, the court said yes but this was by the grandfather within a period of 5 years or if not, after
later abandoned in the case of PNB v Deloso and Luzon 5 years but not later than 10 years, they should have filed
Surety v IAC. In these two case, the court said you can an independent action for revival of judgment.
no longer file a second action for revival of judgment.
HOWEVER, these two cases were later on abandoned by The SC said that the OSG is wrong in their argument
the 1997 Rules of Civil Procedure. Section 6, Rule 39 because the decision made in 1920 was a special
reiterated the Bondoc ruling where the revived judgment proceeding. Once the court declares your status, the
may also be enforced by motion within 5 years from the enforcement of the decision of the court is no longer
date of its entry and thereafter by action before it is barred subject to the prescriptive period under Sec 6 of Rule 39.
by the statute of limitations. That rule only applies to ordinary civil actions where there
are two adversarial parties.

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 Mode When Enforced However, if the defendant died after a motion for
By Motion Within 5 years from the execution has already been granted and the sheriff has
date of entry of already levied the property of the defendant, the
judgment. execution sale will proceed. The sheriff will account for the
By independent action After the lapse of 5 proceeds of the sale to the executor.
years from date of entry
and before it is barred FORMS AND CONTENTS OF A WRIT OF EXECUTION
by the statute of
limitations (10 years
SECTION 8. Issuance, Form and Contents of
from the date of entry, a Writ of Execution.— The writ of execution shall: (1)
Art. 1144(3), CC). issue in the name of the Republic of the Philippines
from the court which granted the motion; (2) state the
EXECUTION IN CASE OF DEATH OF A PARTY name of the court, the case number and title, the
dispositive part of the subject judgment or order; and
SECTION 7. Execution in Case of Death of (3) require the sheriff or other proper officer to whom
Party.— In case of the death of a party, execution may it is directed to enforce the writ according to its terms,
issue or be enforced in the following manner: in the manner hereinafter provided:
(a) In case of the death of the judgment obligee, a) If the execution be against the
upon the application of his executor or property of the judgment obligor, to satisfy the
administrator, or successor in interest; judgment, with interest, out of the real or personal
(b) In case of the death of the judgment obligor, property of such judgment obligor;
against his executor or administrator or b) If it be against real or personal
successor in interest, if the judgment be for the property in the hands of personal representatives,
recovery of real or personal property, or the heirs, devisees, legatees, tenants, or trustees of
enforcement of a lien thereon; the judgment obligor, to satisfy the judgment, with
(c) In case of the death of the judgment obligor, after interest, out of such property;
execution is actually levied upon any of his c) If it be for the sale of real or personal
property, the same may be sold for the property, to sell such property, describing it, and
satisfaction of the judgment obligation, and the apply the proceeds in conformity with the
officer making the sale shall account to the judgment, the material parts of which shall be
corresponding executor or administrator for any recited in the writ of execution;
surplus in his hands. (7a) 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
It depends on who died and it depends on the kind of party entitled thereto, and to satisfy any costs,
judgment: damages, rents, or profits covered by the
1. If the judgment was favorable rendered to the judgment out of the personal property of the
plaintiff who died – can be enforced by his person against whom it was rendered, and if
executor or administrator. sufficient personal property cannot be found, then
2. If the losing party died – the prevailing party out of the real property; and
may still ask for execution which shall be e) In all cases, the writ of execution
enforced against the executor or administrator of shall specifically state the amount of the interest,
the deceased losing party. costs, damages, rents, or profits due as of the date
of the issuance of the writ, aside from the principal
If it is a money judgment: obligation under the judgment. For this purpose,
the motion for execution shall specify the amounts
Death of judgment obligor - after execution is actually of the foregoing reliefs sought by the movant. (8a)
levied upon any of his property, the same may be sold for
the satisfaction of the judgment obligation, and the officer
making the sale shall account to the corresponding Important: The important amendment now is that the writ
executor or administrator for any surplus in his hands. shall specifically state the exact amount of the principal,
interest, costs, damages, rents, profits due as of the date
If it is a case for collection of sum of money where the of the issuance of the writ. Since you are the interested
defendant died after judgment, the plaintiff cannot ask for party, you should be the one to compute and your
a writ of execution. What he should do is bring the computation should be incorporated in your motion for
judgment in his favor to the administrator or executor of issuance of the writ of execution.
the defendant and present it as a money claim.

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The writ shall only state the dispositive portion of the the real properties if the personal properties are
decision and not the entire body. insufficient to answer for the judgment.

It shall contain a specific instruction for the sheriff on how The sheriff shall sell only a sufficient portion of
the personal or real property of the judgment obligor
to execute the judgment.
which has been levied upon.
EXECUTION OF A MONEY JUDGMENT When there is more property of the judgment
obligor than is sufficient to satisfy the judgment and
lawful fees, he must sell only so much of the personal
SECTION 9. Execution of Judgments for
or real property as is sufficient to satisfy the judgment
Money, How Enforced. — (a) Immediate Payment on
and lawful fees.
Demand.— The officer shall enforce an execution of a
judgment for money be demanding from the judgment Real property, stocks, shares, debts, credits,
obligor the immediate payment of the full amount stated and other personal property, or any interest in either
in the writ of execution and all lawful fees. The real or personal property, may be levied upon in like
judgment obligor shall pay in cash, certified bank check manner and with like effects as under a writ of
payable to the judgment obligee, or any other form of attachment.
payment acceptable to the latter, the amount of the
(c) Garnishment of Debts and Credits.— The
judgment debt under proper receipt directly to the
officer may levy on debts due the judgment obligor and
judgment obligee or his authorized representative if
other credits, including bank deposits, financial
present at the time of payment. The lawful fees shall be
handed under proper receipt to the executing sheriff interests, royalties, commissions and other personal
who shall turn over the said amount within the same property not capable of manual delivery in the
possession or control of third parties. Levy shall be
day to the clerk of court of the court that issued the writ.
made by serving notice upon the person owing such
If the judgment obligee or his authorized debts or having in his possession or control such
representative is not present to receive payment, the credits to which the judgment obligor is entitled. The
judgment obligor shall deliver the aforesaid payment to garnishment shall cover only such amount as will
the executing sheriff. The latter shall turn over all the satisfy the judgment and all lawful fees.
amounts coming into his possession within the same
The garnishee shall make a written report to
day to the clerk of court of the court that issued the writ,
the court within five (5) days from service of the notice
or if the same is not practicable, deposit said amounts
of garnishment stating whether or not the judgment
to a fiduciary account in the nearest government
obligor has sufficient funds or credits to satisfy the
depository bank of the Regional Trial Court of the
amount of the judgment. If not, the report shall state
locality.
how much funds or credits the garnishee holds for the
The clerk of said court shall thereafter arrange judgment obligor. The garnished amount in cash, or
for the remittance of the deposit to the account of the certified bank check issued in the name of the judgment
court that issued the writ whose clerk of court shall then obligee, shall be delivered directly to the judgment
deliver said payment to the judgment obligee in obligee within ten (10) working days from service of
satisfaction of the judgment. The excess, if any, shall notice on said garnishee requiring such delivery,
be delivered to the judgment obligor while the lawful except the lawful fees which shall be paid directly to the
fees shall be retained by the clerk of court for court.
disposition as provided by law. In no case shall the
In the event there are two or more garnishees
executing sheriff demand that any payment by check
holding deposits or credits sufficient to satisfy the
be made payable to him.
judgment, the judgment obligor, if available, shall have
(b) Satisfaction by Levy.— If the judgment the right to indicate the garnishee or garnishees who
obligor cannot pay all or part of the obligation in cash, shall be required to deliver the amount due; otherwise,
certified bank check or other mode of payment the choice shall be made by the judgment obligee.
acceptable to the judgment obligee, the officer shall
The executing sheriff shall observe the
levy upon the properties of the judgment obligor of
same procedure under paragraph (a) with respect to
every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from delivery of payment to the judgment obligee. (8a, 15a)
execution giving the latter the option to immediately
choose which property or part thereof may be levied
upon, sufficient to satisfy the judgment. If the judgment
obligor does not exercise the option, the officer shall
first levy on the personal properties, it any, and then on

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 EXECUTION OF JUDGMENTS FOR MONEY, HOW be done at the cost of the disobedient party by some
ENFORCED other person appointed by the court and the act when
so done shall have like effects as if done by the party.
1. SHERIFF TO DEMAND PAYMENT If real or personal property is situated within the
The judgment obligor shall pay in cash, certified bank Philippines, the court in lieu of directing a conveyance
check payable to the judgment obligee, or any other thereof may by an order divest the title of any party and
form of payment acceptable to the latter. Personal vest it in others, which shall have the force and effect
check is not allowed. of a conveyance executed in due form of law. (10a)

Another option is dacion en pago. If the judgment (b) Sale of Real or Personal Property.— If the
judgment be for the sale of real or personal property, to
creditor is willing to accept, there is no problem. If he
sell such property, describing it, and apply the
cannot pay, the sheriff will proceed to the 2 nd stage
proceeds in conformity with the judgment. (8[c]a)
which is satisfaction by levy.
(c) Delivery or Restitution of Real Property.—
2. SATISFACTION BY LEVY The officer shall demand of the person against whom
The officer shall levy upon the properties of the the judgment for the delivery or restitution of real
judgment obligor of every kind and nature whatsoever property is rendered and all persons claiming rights
which may be disposed of for value and not otherwise under him to peaceably vacate the property within three
exempt from execution giving the latter the option (3) working days, and restore possession thereof to the
to immediately choose which property or part judgment obligee; otherwise, the officer shall oust all
thereof may be levied upon, sufficient to satisfy such persons therefrom with the assistance, if
the judgment. necessary, of appropriate peace officers, and
employing such means as may be reasonably
If in the RD naay titulo ang judgment obligor didto, the necessary to retake possession, and place the
sheriff will tatak it with “levy on execution of judgment” judgment obligee in possession of such property. Any
so buyers beware. Sometimes, you will see costs, damages, rents or profits awarded by the
appliances such as refrigerators and even judgment shall be satisfied in the same manner as a
motorcycles in court. These things have been levied judgment for money. (13a)
by the sheriff on execution.
(d) Removal of Improvements on Property
Here, personal property shall first be levied before Subject of Execution.— When the property subject of
real property. the execution contains improvements constructed or
planted by the judgment obligor or his agent, the officer
3. GARNISHMENT OF DEBTS AND CREDITS shall not destroy, demolish or remove said
The officer may levy on debts due the judgment improvements except upon special order of the court,
obligor and other credits, including bank deposits, issued upon motion of the judgment obligee after due
financial interests, royalties, commissions and other hearing and after the former has failed to remove the
personal property not capable of manual delivery in same within a reasonable time fixed by the court. (14a)
the possession or control of third parties. (e) Delivery of Personal Property.— In
judgments for the delivery of personal property, the
The sheriff may go to the debtor of the judgment officer shall take possession of the same and forthwith
debtor and garnish the amount that he is supposed to deliver it to the party entitled thereto and satisfy any
pay to the latter. Most common example is the judgment for money as therein provided. (8a)
garnishment of bank deposit.

When a writ of garnishment is served on a bank, the Execution of Judgment for Specific Act
bank will have to answer within 5 days. Means that the act such as a judgment ordering the
defendant to deliver the title to the court so it can be
EXECUTION OF JUDGMENTS FOR SPECIFIC ACT cancelled and a new title can be issued or to execute a
deed of sale in favor of the plaintiff.

SECTION 10. Execution of Judgments for Refusal to Comply

Specific Act. — (a) Conveyance, Delivery of Deeds, If the judgment obligor refuses to comply, he cannot be
or Other Specific Acts; Vesting Title.— If a judgment cited in contempt because that form of judgment can be
directs a party to execute a conveyance of land or complied by other persons. For example, if he will not
personal property, or to deliver deeds or other surrender the title, the court can always order the register
documents, or to perform any other specific act in of deeds to cancel the title of the judgment obligor. If he
connection therewith, and the party fails to comply refuses to execute a deed of sale, the clerk of court can
within the time specified, the court may direct the act to be ordered to execute such deed in favor of the plaintiff.

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 EXECUTION OF SPECIAL JUDGMENTS What are the properties that the sheriff can levy?
The sheriff can levy any property of the judgment
debtor whether real or personal. If it is intangible, it can
SECTION 11. Execution of Special garnish the intangible property – it is still in the nature of
Judgments.— When a judgment requires the
a levy.
performance of any act other than those mentioned in
the two preceding sections, a certified copy of the
However, there are properties of the judgment debtor that
judgment shall be attached to the writ of execution and
are exempt from execution sale enumerated in Section
shall be served by the officer upon the party against 13.
whom the same is rendered, or upon any other person
required thereby, or by law, to obey the same, and such
Property Exempt from Execution
party or person may be punished for contempt if he
disobeys such judgment. (9a)
SECTION 13. Property Exempt from Execution.—
Except as otherwise expressly provided by law, the
Execution of Special Judgment following property, and no other, shall be exempt from
Here, the judgment of the court orders the judgment execution:
obligor to do a particular act which only he can do. It
cannot be delegated to another person. If he will not obey (a) The judgment obligor's family home as provided by
the judgment, it cannot be done by others. The failure to law, or the homestead in which he resides, and land
obey will constitute contempt of court. necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him
Effects of Levy on Execution in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos, or
SECTION 12. Effect of Levy on Execution as to Third other beasts of burden, such as the judgment obligor may
Persons.— The levy on execution shall create a lien in select necessarily used by him in his ordinary occupation;
favor of the judgment obligee over the right, title and (d) His necessary clothing and articles for ordinary
interest of the judgment obligor in such property at the personal use, excluding jewelry;
time of the levy, subject to liens and encumbrances then (e) Household furniture and utensils necessary for
existing. housekeeping, and used for that purpose by the judgment
obligor and his family, such as the judgment obligor may
Levy means the act or acts by which an officer sets apart select, of a value not exceeding one hundred thousand
or appropriates a part or the whole of the property of the pesos;
judgment debtor for purposes of the prospective (f) Provisions for individual or family use sufficient for four
execution sale. months;
(g) The professional libraries and equipment of judges,
Monte: A levy is the act of the sheriff of attaching the lawyers, physicians, pharmacists, dentists, engineers,
property of a judgment debtor for purposes of a surveyors, clergymen, teachers, and other professionals,
prospective execution sale. not exceeding three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding the
What is the effect of the levy on the property of the total value of one hundred thousand pesos owned by a
judgment debtor? fisherman and by the lawful use of which he earns his
The levy on execution shall create a lien in favor of the livelihood;
judgment obligee over the right, title and interest of the (i) So much of the salaries, wages, or earnings of the
judgment obligor in such property at the time of the levy, judgment obligor for his personal services within the four
subject to liens and encumbrances then existing. months preceding the levy as are necessary for the
support of his family;
If the property levied by the sheriff was already (j) Lettered gravestones;
encumbered by the judgment debtor to another person, (k) Monies, benefits, privileges, or annuities accruing or in
then the encumbrance is superior to the levy. any manner growing out of any life insurance;
(l) The right to receive legal support, or money or property
Example: The sheriff levied a land belonging to a obtained as such support, or any pension or gratuity from
judgment debtor. Unfortunately, that land was already the Government;
mortgaged by the judgment debtor to a bank, so the levy (m) Properties specially exempted by law.
is inferior to the mortgage because the law says the levy
is subject to the lien and encumbrances then existing. But no article or species of property mentioned in this
IOW, once the judgment debtor fails to pay the bank, the section shall be exempt from execution issued upon a
bank can still foreclose the mortgage on the property. judgment recovered for its price or upon a judgment of
foreclosure of a mortgage thereon.

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Property exempt from execution: Now, the lifespan is 5 years. If the sheriff will serve the
1. Family home; writ of execution on the defendant and it is not fully
2. Ordinary tools and implements personally used by satisfied, the sheriff must make a report to the court that
him in his trade; the obligation was only partially paid. The sheriff will keep
3. Three horses or three cows used by him in his the writ of execution within 5 years and make a periodic
ordinary occupation; report to the judge stating that he has not yet found any
4. Necessary clothing and articles for ordinary personal properties of the debtor or if he has found properties, he
use, excluding jewelry; will also report that to the judge but it is still not fully
5. Household furniture and utensil necessary for enough to pay the obligation of the debtor.
housekeeping of a value not exceeding 100,000
6. Provisions for individual or family use sufficient for Every 30 days, the sheriff is supposed to report to the
four months; court of the progress of his execution of the judgment of
7. Professional libraries and equipment of judges, the court or how the writ of execution was implemented.
lawyers, physicians, pharmacists, dentists, etc. not
exceeding 300,000 in value; Alias Writ of Execution
8. One fishing boat and accessories not exceeding the
total value of 100,000 owned by a fisherman; If the writ is lost or destroyed, you can ask for an alias
9. So much of the salaries, wages, or earnings of the writ of execution.
judgment obligor for his personal services within the
four months preceding the levy as are necessary for Execution Sale: Notice
the support of his family;
10. Lettered gravestone; SECTION 15. Notice of Sale of Property on
11. Monies, benefits, privileges, or annuities accruing or Execution.— Before the sale of property on execution,
in any manner growing out of any life insurance notice thereof must be given as follows:
12. The right to receive legal support (a) In case of perishable property, by posting written
13. Properties specially exempted by law notice of the time and place of the sale in three (3) public
places, preferably in conspicuous areas of municipal or
Return of the Writ of Execution city hall, post office and public market in the municipality
or city where the sale is to take place, for such time as
SECTION 14. Return of Writ of Execution.— The writ of may be reasonable, considering the character and
execution shall be returnable to the court issuing it condition of the property;
immediately after the judgment has been satisfied in part (b) In case of other personal property, by posting a similar
or in full. If the judgment cannot be satisfied in full within notice in the three (3) public places above-mentioned for
thirty (30) days after his receipt of the writ, the officer shall not less than five (5) days;
report to the court and state the reason therefor. Such writ (c) In case of real property, by posting for twenty (20) days
shall continue in effect during the period within which the in the three (3) public places above-mentioned a similar
judgment may be enforced by motion. The officer shall notice particularly describing the property and stating
make a report to the court every thirty (30) days on the where the property is to be sold, and if the assessed value
proceedings taken thereon until the judgment is satisfied of the property exceeds fifty thousand (P50,000.00)
in full, or its effectivity expires. The returns or periodic pesos, by publishing a copy of the notice once a week for
reports shall set forth the whole of the proceedings taken, two (2) consecutive weeks in one newspaper selected by
and shall be filed with the court and copies thereof raffle, whether in English, Filipino, or any major regional
promptly furnished the parties. language published, edited and circulated or, in the
absence thereof, having general circulation in the
Lifespan of the Writ of Execution province or city;
The lifespan of a Writ of Execution is the same as that (d) In all cases, written notice of the sale shall be given to
period within which you can enforce judgment by mere the judgment obligor, at least three (3) days before the
motion which is 5 years from the time the judgment sale, except as provided in paragraph (a) hereof where
becomes final. The period to file a motion for execution notice shall be given at any time before the sale, in the
is also the same period within which the Writ of Execution same manner as personal service of pleadings and other
is valid. papers as provided by Section 6 of Rule 13.

Monte: This is a departure from the Old Rules because The notice shall specify the place, date and exact time of
under the Old Rules (1964 ROC) – a writ of execution has the sale which should not be earlier than nine o'clock in
only a lifespan of 60 days from its issuance. From the the morning and not later than two o'clock in the
moment it was issued by the Court, the sheriff must have afternoon. The place of the sale may be agreed upon by
to execute or enforce the writ of execution within a period the parties. In the absence of such agreement, the sale of
of 60 days. After 60 days, that writ becomes functus real property or personal property not capable of manual
officious – null and void. delivery shall be held in the office of the clerk of court of

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the Regional Trial Court or the Municipal Trial Court which (a) Personal Properties – execution sale will be
issued the writ or which was designated by the appellate conducted AFTER 5 days from the posting of
court. In the case of personal property capable of manual notice
delivery, the sale shall be held in the place where the (b) Personal properties that deteriorate fast
property is located. (perishable) – the 5 days posting requirement
will be dispensed with.
Once the sheriff executes the judgment, and started to • IOW, the sheriff can post notices that it
levy the properties of the judgment debtor, the next step will conduct execution sale on the next
is to sell the properties that the sheriff has levied on day if it is a property that deteriorates
execution. What will take place after the levy is the fast.
execution sale. • But if it is an ordinary personal property,
there should be at least 5 days posting
Before the sheriff conducts the execution sale, the sheriff before the execution sale
must send notice not only to the judgment debtor but (c) Real Property – posting of notice should be at
notice to the whole world or to the community so that they least 20 days prior to the sale.
will participate in the execution sale.
B. Publication: Real Properties worth more than
Who will conduct? 50,000.00
It is the sheriff who will conduct the execution sale
If the value of the property to be sold is more than 50K,
Where will the sheriff conduct the execution sale? the notice of execution sale must also be published in a
It depends on what property is levied and up for sale. newspaper of general circulation in the place where the
execution sale will be conducted.
(a) Real property or immovable property – the sale
shall be conducted in the office of the Clerk of Court of the It shall be published once a week for 2 consecutive
court who rendered the decision and issued the writ of weeks.
execution.
C. In all cases the debtor must be notifed at least three
(b) Personal property – can be sold where the personal days before the sale
property is located.
In all cases whether real or personal property – whatever
Monte:Although in actual practice, the sheriff will conduct is the nature of the property to be sold in an execution
the execution sale at the office of the COC or at their own sale, the debtor himself must be personally notified at
office because the sheriff is also holding office in the same least three days before the sale.
office where the COC holds office.
D. Contents of Notice: Place, date, exact time and
When shall the execution of sale done? description of the thing to be sold
The sheriff will be the one to decide on that.
What does the notice of execution sale contain?
Notice of Sale 1. It contains the place where the execution is
conducted.
A. Posting of Notice in 3 conspicuous places 2. Date and exact time
20 days – real properties 3. Description of the thing or things to be sold
5 days – personal properties
Reasonable time – perishable Monte: One of the innovations of the New Rules is that
the time of the execution sale must be specified already
Monte: Before the execution sale is conducted, the sheriff in the notice.
will have to send out notice to the judgment debtor and to
the public. There will be posting of the notice of execution Unlike before where the execution sale may be conducted
sale in three conspicuous places. at any time between 8PM-5PM. That has been abused by
many sheriffs. That is the reason why in the New Rules, it
Conspicuous places – means a place where many requires the specific time to be specified in the notice.
people converge or go to. Examples: public plaza, Why was it abused? Some Sheriffs have some
municipal hall, city hall, public market, lobby of the hall of arrangements with second-hand buyers where the sheriff
justice earsn some sort of a commission.

When will the execution sale be conducted? For example, there are so many dealers of second-hand
It depends. cars. If the property levied by the sheriff from the judgment
debtor is a car and then it will now be sold in an execution

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sale, the car can be bought in a very low price. Usually, Third-Party Claim
the second-hand buyers will have an arrangement with
the sheriff. The sheriff will call his favored second-hand What is a Terceria?
dealer and tell him that he will conduct an execution sale A terceria is a third-party claim – when a property that
involving a car. If there is no interested bidder, then you was levied by the sheriff is claimed by another person, not
bid it for a very low price. A car that is worth 700K can be the judgment debtor.
bought for 300K-200K. Then you will give a commission
to the sheriff. What will that person do? For example, the property
levied by the sheriff is not owned by the debtor, but owned
There may be some people who might be interested to by someone else. That third person will complain and go
attend the execution sale and bid, if the sheriff already has to the sheriff to tell him he is the owner of the property and
a preferred second-hand dealer, he will delay the not the judgment debtor.
proceedings. He will not start the execution sale right
away if there are still people sitting there waiting for the What will the third-party do?
execution sale to start because they may out-bid the He will file a third-party claim known as terceria. He will
second-hand dealer. submit the claim in an affidavit form to the sheriff and copy
furnished to the court. The claim must be supported by
Terceria evidences.

SECTION 16. Proceedings Where Property Claimed For example, if the property levied is a car – he must
by Third Person.— If the property levied on is claimed by present the registration of the car indicating that he is the
any person other than the judgment obligor or his agent, owner.
and such person makes an affidavit of his title thereto or
right to the possession thereof, stating the grounds of What the Sheriff must do
such right or title, and serves the same upon the officer
making the levy and a copy thereof upon the judgment The sheriff must not proceed with the execution sale.
obligee, the officer shall not be bound to keep the Otherwise, the sheriff will be personally liable to the
property, unless such judgment obligee, on demand of the third-party claimant in the event the third party claimant
officer, files a bond approved by the court to indemnify the proves that he is the real owner of the property.
third-party claimant in a sum not less than the value of the
property levied on. In case of disagreement as to such Bond to be put by creditor
value, the same shall be determined by the court issuing
the writ of execution. No claim for damages for the taking If the judgment creditor is confident that he can prove that
or keeping of the property may be enforced against the it is not owned by the third-party claimant, he can tell the
bond unless the action therefor is filed within one hundred sheriff that he will answer for whatever damages the
twenty (120) days from the date of the filing of the bond. sheriff may be held liable. The judgment creditor will put
cdtai up a bond.

The officer shall not be liable for damages for the taking Monte: The sheriff should not proceed with the execution
or keeping of the property, to any third-party claimant if sale not unless the judgment creditor will put up a bond to
such bond is filed. Nothing herein contained shall prevent answer for whatever damage or liability the sheriff will be
such claimant or any third person from vindicating his made to answer as a result of the third-party claim.
claim to the property in a separate action, or prevent the
judgment obligee from claiming damages in the same or If there is a bond, the sheriff will proceed with the
a separate action against a third-party claimant who filed execution sale.
a frivolous or plainly spurious claim.
Remedy of Third-Party Claimant
When the writ of execution is issued in favor of the
Republic of the Philippines, or any officer duly What will the third-party claimant do?
representing it, the filing of such bond shall not be The third party claimant must have to go to court – not to
required, and in case the sheriff or levying officer is sued the court which issued the writ of execution – but he must
for damages as a result of the levy, he shall be file a case known as a reinvindicatory action to prove
represented by the Solicitor General and if held liable his ownership of the property.
therefor, the actual damages adjudged by the court shall
be paid by the National Treasurer out of such funds as Court cannot resolve issue of ownership
may be appropriated for the purpose. (17a)
The court who issued the execution cannot resolve the
issue of ownership.

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Monte: When there is a third-party claim, the Sheriff will willfully removing or defacing the notice posted, if done
refer it to the judge who issued the writ of execution. before the sale, or before the satisfaction of the judgment
if it be satisfied before the sale, shall be liable to pay five
The judge will conduct a summary hearing to determine thousand (P5,000.00) pesos to any person injured by
whether the third-party claim is really a legitimate claim. If reason thereof, in addition to his actual damages, to be
the judge is convinced that the property really belongs to recovered by motion in the same action.
the third party complainant, the judge can order the sheriff
to release that property from the levy. Monte: Section 17 deals with penalty for selling without
notice.
If the judgment obligee (creditor) will oppose the third-
party claim and argue that the third-party claimant is not If the sheriff will conduct an execution sale without proper
really the owner but the judgment debtor who only notice like posting of notices in 3 conspicuous places and
executed a fictitious sale – that is a matter that is already notifying personally the judgment debtor – he is liable for
beyond the power to resolve the issue of ownership. damages
The best advice that the judge can give is to tell the third-
party claimant to go to court and file a case of Penalty – punitive damage of 5,000 pesos to be paid by
reinvindicatoria to recover the property that was already the sheriff to the person injured thereby
levied by the sheriff.
How to Prevent Execution Sale
Lifespan of the bond (120 days)
SECTION 18. No Sale if Judgment and Costs Paid.—
If the third-party complainant will not file a case in court At any time before the sale of property on execution, the
within 120 days from the time that the property was levied, judgment obligor may prevent the sale by paying the
the bond put up by the judgment creditor will be free. IOW, amount required by the execution and the costs that have
the bond has a lifespan only of 120 days. been incurred therein.
Monte: After 120 days, if no reinvindicatory action is filed When there is already a notice of levy of execution,
by the third-party claimant, the bond is already free. The will it still be possible for the judgment debtor to
third-party claimant could no longer recover from the prevent the execution sale? How can the judgment
bond because the bond is actually intended to answer for debtor prevent the execution sale?
whatever damage the third-party claimant may suffer if he By paying the obligation stated in the writ of execution to
can prove later on that he is the real owner of the property. the judgment creditor.
Creditor may also claim damages Monte: Bayaran na lang nimo ang utang. That’s the only
way that he can prevent the execution sale.
The New Rules (1997) also allow the creditor to file a
claim against the third-party claimant if during the hearing Manner and Order of Execution Sale
he was able to prove that the third-party claim is frivolous,
unfounded, or baseless.
SECTION 19. How Property Sold on Execution; Who
May Direct Manner and Order of Sale. — All sales of
Monte: If the third-party claimant is constrained to file a
property under execution must be made at public auction,
reinvindicatory action in another court (because he cannot
to the highest bidder, to start at the exact time fixed in the
file it in the same court) – he will file it as a regular action.
notice. After sufficient property has been sold to satisfy
The other court where the reinvindicatory action is
the execution, no more shall be sold and any excess
filed has the power to issue a writ of preliminary
property or proceeds of the sale shall be promptly
injunction to prevent the sheriff from proceeding with the
delivered to the judgment obligor or his authorized
execution sale over the property. That is not considered
representative, unless otherwise directed by the judgment
as an interference of a court from the power of a co-equal
or order of the court. When the sale is of real property,
court who issued the execution.
consisting of several known lots, they must be sold
separately; or, when a portion of such real property is
Penalty for Selling without Notice
claimed by a third person, he may require it to be sold
separately. When the sale is of personal property capable
SECTION 17. Penalty for Selling Without Notice, or of manual delivery, it must be sold within view of those
Removing or Defacing Notice. — An officer selling attending the same and in such parcels as are likely to
without the notice prescribed by Section 15 of this Rule bring the highest price. The judgment obligor, if present at
shall be liable to pay punitive damages in the amount of the sale, may direct the order in which property, real or
five thousand (P5,000.00) pesos to any person injured personal, shall be sold, when such property consists of
thereby, in addition to his actual damages, both to be several known lots or parcels which can be sold to
recovered by motion in the same action; and a person advantage separately. Neither the officer conducting the

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execution sale, nor his deputies, can become a Judgment Obligee as Purchaser
purchaser, nor be interested directly or indirectly in any
purchase at such sale. SECTION 21. Judgment Obligee as Purchaser.—
When the purchaser is the judgment obligee, and no third-
If there are several properties levied by the sheriff in party claim has been filed, he need not pay the amount of
preparation for the prospective execution sale, who the bid if it does not exceed the amount of his judgment.
decides which property shall be sold first? If it does, he shall pay only the excess.
It is the sheriff. But if the judgment debtor (the owner of
the property to be sold) is present in the execution sale, Can the creditor participate in the execution sale?
he will be the one to decide which property will be sold Yes. In fact most of the time, it is only the judgment
first. In the absence of that, the sheriff will be the one to creditor who will attend the execution sale. The judgment
decide and the personal property shall be sold first creditor will participate because he will be interested na
before the real property. mahalin na para mabayaran siya. He will be the one to bid
and the amount will be lower than the actual price.
Monte: When the sheriff sells the properties that were
levied on execution, he will continue with the sale until the Bid of the judgment creditor is lower than the amount
full amount of the obligation is reached. Once the full of obligation
amount is reached, he will stop the execution sale and
return the properties not yet sold. General Rule: If the bid of the judgment creditor/obligee
is lower than the obligation, he need not pay the sheriff.
Refusal of Purchaser to Pay
For example: The obligation of the judgment debtor is 1M
SECTION 20. Refusal of Purchaser to Pay.— If a and his car was sold to the judgment creditor for only
purchaser refuses to pay the amount bid by him for 400K. He does not have to shell out 400K because the
property struck off to him at a sale under execution, the obligation was 1M.
officer may again sell the property to the highest bidder
and shall not be responsible for any loss occasioned Bid of the judgment creditor is lower than the amount
thereby; but the court may order the refusing purchaser to of obligation but the property sold is subject to a
pay into the court the amount of such loss, with costs, and Third-Party Claim
may punish him for contempt if he disobeys the order. The
amount of such payment shall be for the benefit of the Exception: If the property sold is subject to a third-party
person entitled to the proceeds of the execution, unless claim, and in the execution sale the highest bidder is the
the execution has been fully satisfied, in which event such judgment creditor and the bid was lower than the total
proceeds shall be for the benefit of the judgment obligor. obligation, the judgment creditor still has to pay in
The officer may thereafter reject any subsequent bid of cash because there is a third party-claimant.
such purchaser who refuses to pay.
Monte: Ordinarily it would have been dation en pago. But
If during the execution sale, someone submits the highest this is the exception to the rule where the creditor will have
bid so that the sheriff awarded it to him. However, after to pay.
the sheriff awarded it to the highest bidder, he backed out
and said it was a joke only. :( Bid of judgment creditor is higher than the amount of
obligation
What will happen?
If the highest bidder refuses to pay the purchase price, the The judgment creditor is normally obliged to pay the
sheriff can proceed with the execution sale and conduct sheriff if his bid is in an amount more than the obligation
another auction sale for that property. If it is bought for a of the judgment debtor.
price lower than what is bidded by the ‘joker’ – he will pay
for the difference. Example: The obligation is 1M. The sheriff sold a land to
the judgment creditor for 1.3M. He will only pay the
Example: What was sold is a car. In the execution sale, balance – the difference of 300K. He will deliver the
there were several bidders and Mr. X bid to buy the car payment to the sheriff and the sheriff will turn over the
for 800K. The sheriff sold the property to Mr. X. excess to the judgment debtor.

Mr. X later said he was only joking. What will the sheriff Adjournment of Sale
do? The sheriff will conduct again the execution sale. If
the highest bid is 600K, Mr. X will now pay the difference SECTION 22. Adjournment of Sale.— By written
between 800K and 600K. He will pay 200K. That is the consent of the judgment obligor and obligee, or their duly
penalty for making a joke! authorized representatives, the officer may adjourn the
sale to any date and time agreed upon by them. Without

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such agreement, he may adjourn the sale from day to day In fact, ownership will retroact to the time that the car
if it becomes necessary to do so for lack of time to was levied by the sheriff – not from the time Mr. A
complete the sale on the day fixed in the notice or the day delivered the purchase price. It will retroact to the time of
to which it was adjourned. the levy.

Conveyance to Purchaser of Property Sold What is the significance of that?

If the judgment debtor sold the car to another person
SECTION 23. Conveyance to Purchaser of Personal before the execution sale but AFTER the levy, Mr. A have
Property Capable of Manual Delivery.— When the a preferred right as against the buyer of the car
purchaser of any personal property, capable of manual because his ownership of the car will retroact to the time
delivery, pays the purchase price, the officer making the of the levy or to the time of attachment.
sale must deliver the property to the purchaser and, if
desired, execute and deliver to him a certificate of sale. If the property sold is a personal property, immediate
The sale conveys to the purchaser all the rights which the transfer of ownership takes place. The property shall be
judgment obligor had in such property as of the date of delivered to you immediately.
the levy on execution or preliminary attachment.
Personal Property not capable of Manual Delivery
SECTION 24. Conveyance to Purchaser of Personal
Property Not Capable of Manual Delivery.— When the If the property sold is not capable of manual delivery, the
purchaser of any personal property, not capable of ownership is transferred upon the delivery to you by
manual delivery, pays the purchase price, the officer the sheriff of the Certificate of Sale. It will still retroact
making the sale must execute and deliver to the to the time of the levy.
purchaser a certificate of sale. Such certificate conveys
to the purchaser all the rights which the judgment Examples: airplane, ship
obligor had in such property as of the date of the levy
on execution or preliminary attachment. Real Property

SECTION 25. Conveyance of Real Property; Real Property – the officer must give to the purchaser a
Certificate Thereof Given to Purchaser and Filed with certificate of sale containing:
Registry of Deeds.— Upon a sale of real property, the (a) A particular description of the property sold;
officer must give to the purchaser a certificate of sale (b) The price for each distinct lot or parcel;
containing: (c) The whol price paid by him
(a) A particular description of the real property sold; (d) A statement that the right of redemption expires one
(b) The price paid for each distinct lot or parcel; (1) year from the date of registration of the certificate
(c) The whole price paid by him; of sale. Such certificate must be registered in the
(d) A statement that the right of redemption expires one Registry of Property of the place where the property
(1) year from the date of the registration of the certificate is situated.
of sale.
Monte: It is different if what was sold during the execution
Such certificate must be registered in the registry of deeds sale is a real property. If what is sold is real property,
of the place where the property is situated. ownership is not immediately transferred to the
buyer.
Personal Property
What the sheriff will issue to him is only a certificate of
Personal Property – the sale conveys to the purchaser sale but that certificate of sale will not transfer ownership
all the rights which the judgment obligor had in such of the real property to the highest bidder. It is only an
property as of the date of the levy on execution or evidence that he bought the property in the execution
preliminary attachment. sale but he is not yet the owner of the property.

Monte: In the execution sale, the property that is sold Why?

shall be immediately conveyed by the sheriff to the Because the judgment debtor is still given the right to
highest bidder if what was sold is a personal property. redeem the property within 1 year from the
registration of the certificate of sale. IOW, the right of
Example: If what was sold is a car and the sheriff awarded redemption on the part of the judgment debtor will start to
it to Mr. A who was the highest bidder, Mr. A must be run from the time of the registration of the certificate of
ready to pay the amount immediately. The sheriff sale.
thereafter will issue to Mr. A a certificate of sale. The
moment a certificate of sale is issued to Mr. A,
ownership is immediately transferred to him.

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Where is it registered? Example: If the property subject to execution is a
In the Office of the Registry of Property or the Registry of car worth 800K and was sold only for 100K, that is
Deeds in the place where the property is located unfair to the judgment debtor. 100K ra ang
madeduct sa iyang utang. So, the judgment debtor
It is incumbent upon the purchaser of a real property in an can complain on the ground of gross inadequacy of
execution sale to immediately register the Certificate of the sale of personal property.
Sale that was issued to him by the Sheriff to the Registry
of Deeds so that the 1 year redemption period will begin
to run. If he will not register it, mas malipay ang judgment
debtor because his period to redeem will be extended.

Sale of interest or right of the debtor on the property

There is no warranty against eviction. Caveat emptor rule

applies.

Monte: If what was sold by the sheriff is an interest or

right of the debtor on the property – whoever buys it shall
buy it under caveat emptor rule because there is no
warranty against eviction.

Example: What was sold is the right of debtor as a co-

owner but it turn out that he is no longer a co-owner of
that land – patay si purchaser.

When you buy in an execution sale, and what was sold is

an interest or right of the debtor on a particular property,
he should investigate first whether the judgment debtor
still has that right because there is no warranty against
eviction.

Grounds to Attack the Validity of Sale

Can the judgment debtor attack the validity of the

sale? Can he ask the court to nullify the execution
sale?
YES. On two grounds:

1. Irregularity in the sale such as:

(a) no publication
(b) no notice, or
(c) no prior levy

2. Gross inadequacy of the price of sale

Exception: Sale of real property
Gross inadequacy is a valid ground to attack the
validity of the sale if the property sold is a personal
property. But it is not a valid ground if what was sold
is real property.

Why? Because the judgment debtor has a right of

redemption. If the land was bought for a very low
price, it will be easy for the judgment debtor to
redeem the land from the highest bidder.

But if what is sold is a personal property, there is

no right of redemption. Ownership is immediately
transferred to the highest bidder.

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 Sec. 26. Certificate of Sale Where Property Claimed certificate of sale so that the one-year redemption period
by Third Person on the part of the judgment debtor will start to run.

SECTION 26. Certificate of Sale Where Property In the meantime, the purchaser is not yet considered the
Claimed by Third Person. — When a property sold by owner of the property until after the lapse of the 1-year
virtue of a writ of execution has been claimed by a third redemption period, and no redemption is done by the
person, the certificate of sale to be issued by the sheriff judgment debtor.
pursuant to Sections 23, 24 and 25 of this Rule shall make
express mention of the existence of such third-party Sec. 27. Who May Redeem Real Property in
claim. (28a) Execution Sales

Redemption SECTION 27. Who May Redeem Real Property so

Sold. — Real property sold as provided in the last
Monte: Okay, previously, we have already discussed how preceding section, or any part thereof sold separately,
the property that is levied by the sheriff is sold by the may be redeemed in the manner hereinafter provided, by
sheriff in an execution sale. the following persons:

Execution Sale (a) The judgment obligor, or his successor in interest in

the whole or any part of the property;
Conveyance of Ownership of Personal Property vs.
Real Property (b) A creditor having a lien by virtue of an attachment,
judgment or mortgage on the property sold, or on
Now, the sheriff will sale the property by way of a public some part thereof, subsequent to the lien under which
auction; or we call that an execution sale. the property was sold. Such redeeming creditor is
termed a redemptioner. (29a)
Personal Property
Who can redeem real property sold?
Monte: When the property that was sold in an execution A:
sale is a personal property, the ownership of the property 1) Judgment obligor, his heirs or successors-in-
shall immediately be transferred to the buyer or the interest;
purchaser of that property in the execution sale. So, 2) Redemptioners
conveyance of the property is done immediately. The
sheriff will execute a deed of sale to the buyer – the Monte: The one who can redeem the property is the
highest bidder – and from then on, the purchaser/highest judgment debtor himself, or his heirs, or his successors-
bidder becomes the owner of that property. interest, and the second one, the redemptioner.

Real Property (1) Judgment Debtor, His Heirs or Successors-in-

Interest
Monte: The rule is different when the property sold is a
real property. Because, in a real property, there is a right Monte: Now, the one who can redeem the property is the
of redemption on the part of the judgment debtor. The debtor himself. But if the debtor is already dead – during
judgment debtor can still redeem the property from the the 1-year period, he already died – his heirs can exercise
purchaser within a period of one year. the right of redemption.

So, when the purchase buys the property in an execution Now, who are these successors-in-interest?
sale, and that property is a parcel of land – a real property A:
– what is delivered to him by the sheriff is only a 1) The heirs;
certificate of sale, evidencing that he bought that 2) Any person, even not related to the judgment
property in the execution sale. But the certificate of sale debtor, to whom the right of redemption was
does not transfer to him yet the right of ownership. The transferred to by the judgment debtor.
certificate of sale must contain an annotation about the
right of redemption on the part of the judgment obligor. Monte: Remember, that the right of the debtor to redeem
the property is a transferrable right. In fact, he can sell that
And, as I have already said, the right to redeem the right. It’s a valuable right – it has value, diba? If you are
property shall start to run from the time the certificate of the debtor for example, your property was levied in
sale is registered in the Office of the Register of Deeds. execution by the sheriff, it was sold in a public auction,
That is why it is incumbent upon the purchaser of the and it was bought by Mr. X, for P1Million.
property in the execution sale to immediately register the

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Now, you have one year to redeem that land of yours from Property so redeemed may again be redeemed within
Mr. X, and pay him the P1Mn plus interest and taxes, sixty (60) days after the last redemption upon payment of
whatever was spent by Mr. X in buying the land. Now, the sum paid on the last redemption, with two per centum
suppose you cannot find the amount of P1Mn within the 1 thereon in addition, and the amount of any assessments
year period – you tried your best to look for money so you or taxes which the last redemptioner may have paid
can redeem the land – but wala gyuy magpautang nimo thereon after redemption by him, with interest on such
kay ilado na kaayo ka na palautang ug di mubayad. last-named amount, and in addition, the amount of any
liens held by said last redemptioner prior to his own, with
So, you become hopeless that you cannot redeem the interest. The property may be again, and as often as a
property. And it is very saying, because the property is redemptioner is so disposed, redeemed from any
worth at least P3Mn, and it was bought by Mr. X for only previous redemptioner within sixty (60) days after the last
P1Mn in the execution sale. So, your P3Mn worth of redemption, on paying the sum paid on the last previous
property will be lost for only P1Mn. So, what will you do? redemption, with two per centum thereon in addition, and
You started to look for someone who has the money. And the amounts of any assessments or taxes which the last
you have a friend who has the money, and so you previous redemptioner paid after the redemption thereon,
approached your friend and said, “My friend, I have this with interest thereon, and the amount of any liens held by
land which is worth P3Mn. And I am supposed to redeem the last redemptioner prior to his own, with interest.
this from Mr. X, but I don’t have the P1Mn to redeem. I’ll
sell it to you for P2Mn; just give me P1Mn, you pay Written notice of any redemption must be given to the
another P1Mn to Mr. X, and you will have the land. You officer who made the sale and a duplicate filed with the
redeem the land, for and in my behalf.” registry of deeds of the place, and if any assessments or
taxes are paid by the redemptioner or if he has or acquires
And so you got the land for only P2Mn. It’s worth P3Mn, any lien other than that upon which the redemption was
or probably more. So, that is how you can redeem the made, notice thereof must in like manner be given to the
property through somebody – through a successor-in- officer and filed with the registry of deeds; if such notice
interest. be not filed, the property may be redeemed without paying
such assessments, taxes, or liens. (30a)
(2) Redemptioners
Monte: Okay, you have a lien on the property as a
Monte: Now, another person who can redeem – they are redemptioner. Okay. One good example is this. The
called the redemptioners. debtor was not able to pay his loan obligation to the
creditor. The creditor filed a case against him; he lost the
Now, who are considered as redemptioners? case; the sheriff levied the property of the debtor, which
A: The redemptioners are creditors with a lien on the is a parcel of land. It was sold in an execution sale, and it
property subsequent to the judgment which was the basis was bought by Mr. X for P1Mn.
of the execution sale. And that lien was acquired by
attachment or through a judgment or through a mortgage The land is worth P3Mn, but it was bought for only P1Mn
foreclosure. by Mr. X. Now, while the case was ongoing, the same
debtor has another creditor that he has not paid. So that
Sec. 28. Time and Manner of, and Amounts Payable other creditor, Mr. A, filed a case against him and he also
on, Successive Redemptions; Notice to be Given won the case. And he also levied the same property that
and Filed was already levied also previously by the original creditor.
Or, another one, Mr. B, filed a case against the same
SECTION 28. Time and Manner of, and Amounts debtor, and he was able to secure a writ of attachment on
Payable on, Successive Redemptions; Notice to be the same property that was already previously levied in
Given and Filed. — The judgment obligor, or favor of the original creditor. And there’s another creditor,
redemptioner, may redeem the property from the Mr. C, who claims that the property was mortgaged to him
purchaser, at any time within one (1) year from the date by the debtor. But the mortgage was done after it was
of the registration of the certificate of sale, by paying the already levied by the original creditor.
purchaser the amount of his purchase, with one per
centum per month interest thereon in addition, up to the In other words, Mr. A acquired a lien over the property that
time of redemption, together with the amount of any was already sold to Mr. X by virtue of a judgment by the
assessments or taxes which the purchaser may have paid court. so, he was able to levy the property. Mr. B was able
thereon after purchase, and interest on such last-named to acquire a lien on the same property by virtue of a writ
amount at the same rate; and if the purchaser be also a of attachment issued by the court. And Mr. C acquired a
creditor having a prior lien to that of the redemptioner, lien over the same property by virtue of a mortgage. When
other than the judgment under which such purchase was the debtor failed to pay him, he foreclosed the mortgage.
made, the amount of such other lien, with interest. But since the rights of Mr. A, B and C were acquired after
the property was already levied by the original creditor,

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then Mr. A, B and C cannot impose their rights superior to within 60 days from the time that Mr. A redeemed the
that of the original creditor. But they can, however, property from Mr. X. And if Mr. B redeems the property
exercise the right of redemption. They can redeem the from Mr. A, he must reimburse Mr. A for all the expenses
same property from Mr. X, who is the buyer of the property that the latter paid for redeeming that property plus 2%
in the execution sale. interest per month.

Now, they can do that only if the original debtor fails to So, Mr. B redeemed the property from Mr. A. Mr. C can
redeem it within the period of one year. Okay, so this is redeem the property from Mr. B also. In the same manner,
how it will happen. he will have to reimburse Mr. B for all that he has paid,
plus 2% interest per month.
Now, Mr. X bought the property in the execution sale, so
he is the buyer of the property. A certificate of sale was Monte: So, all the redemptioners – Mr. A, B and C – can
issued to him by the sheriff. Now, the original debtor redeem it from the purchaser, bisag asa nilang tulo ang
intimated to his other debtors creditors, Mr. A, B and C makaredeem. Magpaunhanay na lang sila. It’s not that
that he could no longer redeem that property. He has no any of them will be given preference. But the first one who
money to redeem the property for P1Mn. redeems it, the other one can redeem it from him; and the
other one can also redeem it from the second
A, B and C can redeem the property from X because they redemptioner.
are all redemptioners. They are all considered
redemptioners. Any one of them can redeem it from Mr. Sec. 30. Proof Required of Redemptioner
X, the purchaser. Paunahay lang, kinsay makauna nila.
SECTION 30. Proof Required of Redemptioner. — A
So, for example, Mr. A was the first one to redeem the redemptioner must produce to the officer, or person from
property from Mr. X. whom he seeks to redeem, and serve with his notice to
the officer a copy of the judgment or final order under
Sec. 29. Effect of Redemption by Judgment Obligor, which he claims the right to redeem, certified by the clerk
and A Certificate to be Delivered and Recorded of the court wherein the judgment or final order is entered;
Thereupon; to Whom Payments on Redemption or, if he redeems upon a mortgage or other lien, a
Made memorandum of the record thereof, certified by the
registrar of deeds; or an original or certified copy of any
SECTION 29. Effect of Redemption by Judgment assignment necessary to establish his claim; and an
Obligor, and A Certificate to be Delivered and affidavit executed by him or his agent, showing the
Recorded Thereupon; to Whom Payments on amount then actually due on the lien. (32a)
Redemption Made. — If the judgment obligor redeems,
he must make the same payments as are required to How are they going to exercise that right of
effect a redemption by a redemptioner, whereupon, no redemption?
further redemption shall be allowed and he is restored to A: If you are a redemptioner, you have to notify the
his estate. The person to whom the redemption payment sheriff that you are going to exercise your right of
is made must execute and deliver to him a certificate of redemption as a redemptioner. And to prove that you are
redemption acknowledged before a notary public or other a redemptioner, you show to the sheriff the basis of your
officer authorized to take acknowledgments of being a redemptioner.
conveyances of real property. Such certificate must be
filed and recorded in the registry of deeds of the place in Monte: Like, if you are Mr. A, you show the judgment of
which the property is situated, and the registrar of deeds the court that you won already a case agains tht e original
must note the record thereof on the margin of the record debtor. There’s already a judgment. So, your basis of the
of the certificate of sale. The payments mentioned in this right to redeem is the judgment.
and the last preceding sections may be made to the
purchaser or redemptioner, or for him to the officer who If you are Mr. B, you show to the sheriff the writ of
made the sale. (31a) attachment issued by the court in your favor involving that
property. If you Mr. C, you show to the sheriff the
So, how much will Mr. A pay Mr. X? foreclosure of mortgage papers. Like if it is by way of
A: Well, Mr. A have to pay Mr. X the P1Mn the latter paid judicial foreclosure, the judgment of the court foreclosing
in the execution sale plus 1% interest plus whatever it judicially. Or if it is by extrajudicial foreclosure, you show
expenses or taxes was paid by Mr. X in connection to the to the sheriff the basis. You show the real estate
purchase of that property. So, tanan gasto ni Mr. X, plus mortgage, and the promissory note, and that the loan
1% interest per month. obligation has already matured, and that you already filed
an extrajudicial foreclosure of mortgage.
Now, after Mr. A redeemed the property, Mr. B can Now, all the three redemptioners can redeem it from the
redeem the property also from Mr. A. But, he must do it buyer or the purchaser of the poeprty in the execution

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sale. But one can redeem from the other within a period SECTION 32. Rents, Earnings and Income of Property
of 60 days. Pending Redemption. — The purchaser or a
redemptioner shall not be entitled to receive the rents,
When Redemptioners Cannot Redeem earnings and income of the property sold on execution, or
the value of the use and occupation thereof when such
Monte: But one thing to remember here: once the original property is in the possession of a tenant. All rents,
debtor, who is the original owner of the property, decides earnings and income derived from the property pending
to exercise his right of redemption, all other redemption shall belong to the judgment obligor until the
redemptioners cannot redeem. Like Mr. A redeems the expiration of his period of redemption. (34a)
property from Mr. X, the purchaser. Mr. B and C were
planning to redeem it from A. Magpaunhanay sila. But the Monte: Now, during the period of redemption, the
original debtor decided to redeem it from A. When the purchaser of the property is not yet considered the owner.
original debtor redeems the property from Mr. A, Mr. B And so, the original owner of the property, who is the
and C can no longer redeem the property. The property judgment debtor, will remain in possession of the
has already been returned to the original owner, and there property. He will continue to possess the property and in
is no further right of redemption. That is the rule on fact even enjoy the fruits of the property. Kay di pa man
redemption. giconsider nga tag-iya ang nakapalit sa property in the
execution sale. So ang judgment debtor gihapon ang
Partial Redemption (General Banking Act) magpahimulos – he will enjoy the fruits of the property
until the lapse of the period to redeem and he fails to
Monte: Now, when you redeem the property from the redeem the property.
purchaser, all you have to pay is the amount that the
purchaser has paid plus interest and other expenses or So, since he is the one enjoying the property, the
taxes. But, this will not apply under the General Banking purchaser of the property may ask the court for an order
Act. But if the original creditor is the bank, it is not enough directing the debtor not to waste the property. To refrain
that he will pay the value of the property bought by the from committing wastage on the property. Kay basin uroy
purchaser. He must pay his entire obligation to the bank. ug ang judgment debtor, kay siya pa man ang
What do I mean by that? nagpadayon ug pahimos, he might say, “Ah, anyway, I
cannot afford to redeem this, so inig ka lapse sa 1 year,
If the utang of the debtor to the bank is 1Mn, and his land di man gyud ni ma-ako kay di man gyud ko ka lokat, ako
was foreclosed by the bank – because it was the collateral na lang ni ipaguba. Pasagdan ko na lang ning propertiha,
or the bank filed against him and it was levied by the bahalag madaot ni. Anyway, it’s not mine anymore after
sheriff and sold in an execution sale – the land was bought one year.”
only for P700k. If the debtor would decide to redeem it
from the purchaser, he will not pay just the P700k. He If he will do that, the court has the right to restrain him
must pay the P1Mn he owes to the bank – P700k to the from committing an act of wastage or destroying the
purchaser, and P300k to the bank. The bank should be property. So, in other words, the judgment debtor must
fully paid. That is the rule under the General Banking Act. have to take care of the property during the period of
So, it will not apply to PNB, DBP and other banking redemption.
institutions. So that is the rule when it comes to
redemption of property. Sec. 33. Deed of Possession After Expiration of
Redemption Period – Retroacts to the Time of Levy
Sec. 31-32. Manner of Using Premises and Right to
Fruits Pending Redemption SECTION 33. Deed and Possession to be Given at
Expiration of Redemption Period; by Whom Executed
SECTION 31. Manner of Using Premises Pending or Given. — If no redemption be made within one (1) year
Redemption; Waste Restrained. — Until the expiration from the date of the registration of the certificate of sale,
of the time allowed for redemption, the court may, as in the purchaser is entitled to a conveyance and possession
other proper cases, restrain the commission of waste on of the property; or, if so redeemed whenever sixty (60)
the property by injunction, on the application of the days have elapsed and no other redemption has been
purchaser or the judgment obligee, with or without notice; made, and notice thereof given, and the time for
but it is not waste for a person in possession of the redemption has expired, the last redemptioner is entitled
property at the time of the sale, or entitled to possession to the conveyance and possession; but in all cases the
afterwards, during the period allowed for redemption, to judgment obligor shall have the entire period of one (1)
continue to use it in the same manner in which it was year from the date of the registration of the sale to redeem
previously used; or to use it in the ordinary course of the property. The deed shall be executed by the officer
husbandry; or to make the necessary repairs to buildings making the sale or by his successor in office, and in the
thereon while he occupies the property. (33a) latter case shall have the same validity as though the

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officer making the sale had continued in office and time he bought it from the execution sale but from the
executed it. time the property was levied by the sheriff. That’s why,
as I have said, it’s very important to note when the
Upon the expiration of the right of redemption, the ownership will be conveyed because if there are transfers
purchaser or redemptioner shall be substituted to and made by the original debtor after the levy, that transfer or
acquire all the rights, title, interest and claim of the conveyance will not prevail against the right of the
judgment obligor to the property as of the time of the levy. purchaser because the ownership of the purchaser is
The possession of the property shall be given to the deemed to retroact to the time of the levy.
purchaser or last redemptioner by the same officer unless
a third party is actually holding the property adversely to UP BOC 2020 Remedial Law Reviewer:
the judgment obligor. (35a)
Two documents which the sheriff executes in case of real
Monte: Now, upon the lapse of the period to redeem and property
no redemption is made by the judgment debtor, the sheriff
will now execute to the purchaser a final deed of sale. a. Certificate of sale

So actually, there are two deeds of sale here that will be 1. Upon a sale of real property, the officer must give
executed by the sheriff: to the purchaser a certificate of sale containing:
1) The first is the one he issued during the public i. A particular description of the real
auction sale when it was bought by the purchaser property sold;
during the execution sale. He will issue a ii. The price paid for each distinct lot or
certificate of sale. And that certificate of sale is parcel;
just a memorandum of the purchase of the iii. The whole price paid by him; and
property. It does not transfer ownership yet. So iv. A statement that the right of redemption
temporary pa lang to ang sale nga gi-execute sa expires one year from the date of the
iya. registration of the certificate of sale
2) But after the lapse of the redemption period of 1
year, that’s the time that the sheriff will issue the 2. Must be registered in the registry of deeds of the
final deed of sale. That is now the one that will place where the property is situated. [Sec. 25,
transfer ownership to the purchaser. Rule 39] – From registration of said certificate, the
1-year redemption period starts [Sec. 28, Rule
So, the sheriff, after executing the final deed of sale, will 39]
place the purchaser in possession of the property. So, if
the debtor will still refuse to vacate the property, the 3. Certificate of sale after execution sale is merely a
purchaser can ask the court to issue a writ of memorial of the fact of sale and does not operate
possession to place him in possession of the property. as conveyance [1 Regalado 508, 2010 Ed.]

However, in one case, the SC said: if the property is no b. Deed of Conveyance

longer in the possession of the judgment debtor, at the
time when the final deed of sale was executed – meaning, 1. Executed upon the expiration of the period to
there is already another person occupying the land – the redeem.
court cannot remove that person summarily by issuing a
writ of possession. So the court will not issue a writ of Note: The purchaser or redemptioner shall be
possession right away. Because that person must be substituted to and acquire all the rights, title,
given an opportunity to be heard what reason he has why interest and claim of the judgment obligor to the
he occupied the land. For all you know, he might have a property as of the time of the levy.
better right to the land, as he might acquired it before the
levy. So, dili pwede writ of possession basta the property 2. Executed by the officer making the sale.
is in the hands of a third person. There should be a
hearing first before the court will place the purchaser in 3. Under the expiration of the right of redemption,
possession of the property. [Sec. 33, Rule 39]

Now, if there is no one occupying it, and the debtor Note: Hence, the certificate of sale of real
voluntarily surrenders possession of the land, then the property does not confer any right to the
purchaser now will become the absolute owner of the land possession or ownership, of the real property
from the moment the sheriff executed to him a final purchased. It is the deed of sale executed by the
deed of sale. In fact, the ownership of the purchaser will sheriff at the expiration of the period of
retroact to the time of the levy. In other words, it is as if, redemption which entitles the purchaser to
under the law, he is the owner of the property not from the

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 possession of the property sold. [1 Regalado 508, The purchaser may, on motion in the same action or in a
2010 Ed.] separate action:

Sec. 34. Recovery of Price if Sale is Not Effective a. Recover from the judgment obligee the price paid,
with interest, or so much thereof as has not been
SECTION 34. Recovery of Price if Sale not Effective; delivered to the judgment obligor; or
Revival of Judgment. — If the purchaser of real property
sold on execution, or his successor in interest, fails to b. Have the original judgment revived in his name for the
recover the possession thereof, or is evicted therefrom, in whole price with interest, or so much thereof as has
consequence of irregularities in the proceedings been delivered to the judgment obligor.
concerning the sale, or because the judgment has been
reversed or set aside, or because the property sold was Note: The judgment so revived shall have the same
exempt from execution, or because a third person has force and effect as an original judgment would have
vindicated his claim to the property, he may on motion in as of the date of the revival and no more. [Sec. 34,
the same action or in a separate action recover from the Rule 39]
judgment obligee the price paid, with interest, or so much
thereof as has not been delivered to the judgment obligor; Note: A purchaser’s right of possession is recognized
or he may, on motion, have the original judgment revived only as against the judgment debtor and his successor-in-
in his name for the whole price with interest, or so much interest. It is not so against persons whose right of
thereof as has been delivered to the judgment obligor. possession is adverse. When a third party is in
The judgment so revived shall have the same force and possession of the property purchased, the possession is
effect as an original judgment would have as of the date presumed to be based on just title – a presumption which
of the revival and no more. (36a) may be overcome by the purchaser in a judicial
proceeding for recovery of the property. [Villanueva v.
Revival of Judgment by Motion Cherdan Lending Investors Corp., G.R. No. 177881
(2010)]
Monte: Now, if the purchaser of the property cannot take
possession of the property – because as I have said, Sec. 35. Right to Contribution or Reimbursement for
when the pevieriod to redeem the property expires, and One of the Several Judgment Debtors
the sheriff would now like to put the possession with the
purchaser of the property – it turns out that somebody is SECTION 35. Right to Contribution or
already occupying the property. And that somebody Reimbursement. — When property liable to an execution
happens to prove that he has a better right than the against several persons is sold thereon, and more than a
purcahser. So, he cannot be ousted. due proportion of the judgment is satisfied out of the
proceeds of the sale of the property of one of them, or one
So, what will happen? The purchaser has the right to of them pays, without a sale, more than his proportion, he
recver the price that he paid if the sale is not effective. Or may compel a contribution from the others; and when a
if not, the purchaser can ask the court to revive the judgment is upon an obligation of one of them, as security
judgment and put the judgment in his favor. for another, and the surety pays the amount, or any part
thereof, either by sale of his property or before sale, he
UP BOC 2020 Remedial Law Reviewer may compel repayment from the principal. (37a)

Recovery of purchase price if sale not effective Monte: The judgment debtor, if there are several debtors,
and the judgment debtor exercise the right of redemption,
a. If the purchaser of real property sold on execution, or he may ask for reimbursement from the other debtors.
his successor in interest, (1) fails to recover the
possession thereof, or (2) is evicted therefrom, in Sec. 36-43. Remedies in Aid of Execution
consequence of irregularities in the proceedings
concerning the sale, or Now, what are the aids of a creditor in case the
judgment obligor appears to have no property that
b. Because the judgment has been reserved or set the sheriff can levy?
aside, or A: These are what we call remedies in aid of execution:
1) Examination of judgment obligor;
c. Because the property sold was exempt from 2) Examination of obligor of judgment obligor;
execution, or 3) Enforcement of attendance and conduct of
examination;
d. Because a third person has vindicated his claim, to 4) Obligor of judgment obligor may pay execution to
the property, oblige;

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 5) Garnishment of income more than enough for the UP BOC 2020 Remedial Law Reviewer
support of his family;
6) Appointment of receiver; Examination of Judgment Obligor When Judgment is
7) Sale of ascertainable interest of judgment obligor Unsatisfied
in real estate;
8) Proceedings when indebtedness is denied or When applicable
property claimed by other persons When the return of the writ issued against property of a
judgment obligor shows that judgment remains
Sec. 36. Examination of Judgement Obligor unsatisfied. [Sec. 36, Rule 39]

SECTION 36. Examination of Judgment Obligor When Procedure

Judgment Unsatisfied. — When the return of a writ of The judgment obligee, at any time after such return is
execution issued against property of a judgment obligor, made, shall be entitled to an order from the court which
or any one of several obligors in the same judgment, rendered the said judgment:
shows that the judgment remains unsatisfied, in whole or
in part, the judgment obligee, at any time after such return a. Requiring such judgment obligor to appear and
is made, shall be entitled to an order from the court which be examined concerning his property and income
rendered the said judgment, requiring such judgment before such court or before a commissioner
obligor to appear and be examined concerning his appointed by it, at a specified time and place; and
property and income before such court or before a
commissioner appointed by it, at a specified time and b. Proceedings may thereupon be had for the
place; and proceedings may thereupon be had for the application of the property and income of the
application of the property and income of the judgment judgment obligor towards the satisfactions of the
obligor towards the satisfaction of the judgment. judgment.

But no judgment obligor shall be so required to appear When judgment obligor not required to appear/ be
before a court or commissioner outside the province or examined
city in which such obligor resides or is found. (38a) a. When he is required to appear before a court or
commissioner outside the province or city in
Monte: So when the court issues a writ of execution, and which such obligor resides or is found. [Sec. 36,
the sheriff returned it unsatisfied; the sheriff said, “Your Rule 39]
Honor, wala gyud kuy nakit-an na property of the
judgment debtor. Purdoy gyud ang judgment debtor, way b. After the lapse of the five years within which a
mabira, way mahanggap.” judgment may be enforced by motion. [Umali v.
Coquia, G.R. No. L- 46303 (1988)]
Now, the plaintiff must have to help. Because he is now
the offended party here. Di siya mabayran. So, one of the Order for payment in fixed monthly installments
remedies available to the creditor is to put the judgment If upon investigation of his current income and expenses,
obligor on the witness stand for examination as to his it appears that the earnings of the judgment obligor for his
assets. personal services are more than necessary for the
support of his family, the court may order that:
Example: For example, somebody informed the plaintiff-
creditor that the debtor actually has some other a. He pay the judgment in fixed monthly
properties, iya rang gi-taguan. He has some properties na installments, and
iyang gitaguan in the name of other persons like his
friends. And, in the investigation conducted by the b. Upon his failure to pay any such installment when
plaintiff, he was able to uncover that indeed there are due without good excuse, may punish him for
properties of the judgment debtor na iyang gitaguan in the indirect contempt. [Sec. 40, Rule 39]
name of other persons. So, the plaintiff-creditor can ask
for the help of the court, put the judgment-obligor in the Sec. 37. Examination of the Obligor of the Judgment
witness stand and examine him about his regarding these Obligor
properties. Kay ug mudeny siya, but later on the plaintiff
was able to prove na iyaha gyud tung properties ug iyang SECTION 37. Examination of Obligor of Judgment
gipanaguan, then he is liable for perjury. And these Obligor. — When the return of a writ of execution against
properties can be taken, and aside from that, the debtor the property of a judgment obligor shows that the
can go to jail for telling a lie in court. judgment remains unsatisfied, in whole or in part, and
upon proof to the satisfaction of the court which issued the
writ, that a person, corporation, or other juridical entity has
property of such judgment obligor or is indebted to him,

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the court may, by an order, require such person, in such manner as it may deem proper. [Sec. 37,
corporation, or other juridical entity, or any officer or Rule 39]
member thereof, to appear before the court or a
commissioner appointed by it, at a time and place within Note: This is not applicable if there is no issue concerning
the province or city where such debtor resides or is found, the indebtedness of the bank and there is no denial by the
and be examined concerning the same. The service of the depositor of the existence of the deposit with the bank
order shall bind all credits due the judgment obligor and which is considered a credit in favor of the depositor
all money and property of the judgment obligor in the against the bank. [PCIB v. CA, G.R. No. 84526 (1991)]
possession or in the control of such person, corporation,
or juridical entity from the time of service; and the court When alleged obligor denies debt or claims property
may also require notice of such proceedings to be given The court may:
to any party to the action in such manner as it may deem a. Authorize the judgment obligee to institute an
proper. (39a) action against such person or corporation for the
recovery of such interest or debt,
Monte: Another remedy is the examination of the obligor b. Forbid a transfer or other disposition of such
of the judgment obligor. So, if somebody would tell the interest or debt within 120 days from notice of the
plaintiff-creditor, “You know, Mr. X is indebted to your order, and
debtor in the amount of P1Mn. Naghilom-hilom ra na c. May punish disobedience of such order as for
imong debtor nga naa siyay collectible from Mr. X nga contempt. [Sec. 43, Rule 39]
P1Mn.”
Impropriety of an action for damages as a remedy
Well, you can ask the court to summon Mr. X to come to Where the writ of execution is unsatisfied, the remedy to
court, and Mr. X will be asked whether or not he is enforce it is Secs. 38-39, and not a complaint for
indebted to your debtor for P1Mn. If he will admit that he damages. [Phil. Transmarine Carriers v. CA, G.R. No.
has a payable, then you can ask the court to order Mr. X 122346 (2000)]
to hold the payment and instead pay the money to you.
Sec. 38. Enforcement of Attendance and Conduct of
UP BOC 2020 Remedial Law Reviewer Examination

Examination of Obligor of Judgment Obligor SECTION 38. Enforcement of Attendance and

Conduct of Examination. — A party or other person may
When applicable be compelled, by an order or subpoena, to attend before
a. When the return of a writ of execution against the the court or commissioner to testify as provided in the two
property of a judgment obligor shows that the preceding sections, and upon failure to obey such order
judgment remains unsatisfied, in whole or in part, or subpoena or to be sworn, or to answer as a witness or
and to subscribe his deposition, may be punished for
b. Upon proof that a person, corporation, or other contempt as in other cases.
juridical entity has property of such judgment Examinations shall not be unduly prolonged, but the
obligor or is indebted to him. [Sec. 37, Rule 39] proceedings may be adjourned from time to time, until
they are completed. If the examination is before a
Procedure commissioner, he must take it in writing and certify it to
The court may, by an order: the court. All examinations and answers before a court or
a. Require such person, corporation, or other commissioner must be under oath, and when a
juridical entity, or any officer or member thereof, corporation or other juridical entity answers, it must be on
to appear before the court or a commissioner the oath of an authorized officer or agent thereof. (40a)
appointed by it, at a time and place within the
province or city where such debtor resides or is Monte: And he has the right – third one – enforcement of
found, and attendance and conduct of examination of these persons:
b. Be examined concerning the same. 1) The judgment obligor or
2) The obligor of the judgment obligor.
Effect of order
The service of the order shall: Sec. 39. Obligor of Judgment Obligor May Pay
a. Bind all credits due the judgment obligor and all Execution to Obligee
money and property of the judgment obligor in the
possession or in the control of such person, SECTION 39. Obligor May Pay Execution Against
corporation, or juridical entity from the time of Obligee. — After a writ of execution against property has
service, and been issued, a person indebted to the judgment obligor
b. b. The court may also require notice of such may pay to the sheriff holding the writ of execution the
proceedings to be given to any party to the action amount of his debt or so much thereof as may be

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necessary to satisfy the judgment, in the manner and he is on the verge of bankruptcy, he can be placed
prescribed in Section 9 of this Rule, and the sheriff's under receivership.
receipt shall be a sufficient discharge for the amount so
paid or directed to be credited by the judgment obligee on UP BOC 2020 Remedial Law Reviewer
the execution. (41a)
Appointment of receiver
Monte: And the obligor of the judgment obligor may pay The court may appoint a receiver of the property of the
directly to the judgment obligee through the writ of judgment obligor; and it may also forbid a transfer or other
execution. disposition of, or any interference with, the property of the
judgment obligor not exempt from execution. [Sec. 41,
UP BOC 2020 Remedial Law Reviewer Rule 39]

Order for application of property or income If it appears that the judgment obligor has an interest in
The court may order any property of the judgment obligor, real estate in the place in which proceedings are had, as
or money due him, not exempt from execution, in the mortgagor or mortgagee or otherwise, and his interest
hands of either himself or another person, or of a therein can be ascertained without controversy, the
corporation or other juridical entity, to be applied to the receiver may be ordered to sell and convey such real
satisfaction of the judgment, subject to any prior rights estate or the interest of the obligor therein; and such sale
over such property. [Sec. 40, Rule 39] shall be conducted in all respects in the same manner as
is provided for the sale of real estate upon execution, and
After a writ of execution against property has been issued, the proceedings thereon shall be approved by the court
a person indebted to the judgment obligor may pay to the before the execution of the deed. [Sec. 42, Rule 39]
sheriff holding the writ of execution the amount of his debt
or so much thereof as may be necessary to satisfy the Sec. 42. Sale of Ascertainable Interest of Judgment
judgment, in the manner prescribed in Sec. 9, Rule 39 and Obligor in Real Estate
the sheriffs receipt shall be a sufficient discharge for the
amount so paid or directed to be credited by the judgment SECTION 42. Sale of Ascertainable Interest of
obligee on the execution [Sec. 39, Rule 39] Judgment Obligor in Real Estate. — If it appears that the
judgment obligor has an interest in real estate in the place
Sec. 40. Garnishment of Income More than Enough in which proceedings are had, as mortgagor or mortgagee
for the Support of His Family or otherwise, and his interest therein can be ascertained
without controversy, the receiver may be ordered to sell
SECTION 40. Order for Application of Property and and convey such real estate or the interest of the obligor
Income to Satisfaction of Judgment. — The court may therein; and such sale shall be conducted in all respects
order any property of the judgment obligor, or money due in the same manner as is provided for the sale of real
him, not exempt from execution, in the hands of either estate upon execution, and the proceedings thereon shall
himself or another person, or of a corporation or other be approved by the court before the execution of the
juridical entity, to be applied to the satisfaction of the deed. (44a)
judgment, subject to any prior rights over such property.
If, upon investigation of his current income and expenses, Sec. 43. Proceedings When Indebtedness is Denied
it appears that the earnings of the judgment obligor for his or Property is Claimed by Other Persons
personal services are more than necessary for the
support of his family, the court may order that he pay the SECTION 43. Proceedings When Indebtedness
judgment in fixed monthly installments, and upon his Denied or Another Person Claims the Property. — If it
failure to pay any such installment when due without good appears that a person or corporation, alleged to have
excuse, may punish him for contempt. (42a) property of the judgment obligor or to be indebted to him,
claims an interest in the property adverse to him or denies
Sec. 41. Appointment of Receiver the debt, the court may authorize, by an order made to
that effect, the judgment obligee to institute an action
SECTION 41. Appointment of Receiver. — The court against such person or corporation for the recovery of
may appoint a receiver of the property of the judgment such interest or debt, forbid a transfer or other disposition
obligor; and it may also forbid a transfer or other of such interest or debt within one hundred twenty (120)
disposition of, or any interference with, the property of the days from notice of the order, and may punish
judgment obligor not exempt from execution. (43a) disobedience of such order as for contempt. Such order
may be modified or vacated at any time by the court which
Monte: Or, the judgment creditor can put the debtor under issued it, or by the court in which the action is brought,
receivership. If the debtor is a corporation for example, upon such terms as may be just. (45a)

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 Sec. 44-48 (c) In any other litigation between the same parties or
their successors in interest, that only is deemed to
SECTION 44. Entry of Satisfaction of Judgment by have been adjudged in a former judgment or final
Clerk of Court. — Satisfaction of a judgment shall be order which appears upon its face to have been so
entered by the clerk of court in the court docket, and in adjudged, or which was actually and necessarily
the execution book, upon the return of a writ of execution included therein or necessary thereto. (49a)
showing the full satisfaction of the judgment, or upon the
filing of an admission to the satisfaction of the judgment SECTION 48. Effect of Foreign Judgments or Final
executed and acknowledged in the same manner as a Orders. — The effect of a judgment or final order of a
conveyance of real property by the judgment obligee or tribunal of a foreign country, having jurisdiction to render
by his counsel unless a revocation of his authority is filed, the judgment or final order is as follows:
or upon the endorsement of such admission by the
judgment obligee or his counsel on the face of the record (a) In case of a judgment or final order upon a specific
of the judgment. (46a) thing, the judgment or final order is conclusive upon
the title to the thing; and
SECTION 45. Entry of Satisfaction With or Without
Admission. — Whenever a judgment is satisfied in fact, (b) In case of a judgment or final order against a person,
or otherwise than upon an execution, on demand of the the judgment or final order is presumptive evidence of
judgment obligor, the judgment obligee or his counsel a right as between the parties and their successors in
must execute and acknowledge, or indorse, an admission interest by a subsequent title.
of the satisfaction as provided in the last preceding
section, and after notice and upon motion the court may In either case, the judgment or final order may be repelled
order either the judgment obligee or his counsel to do so, by evidence of a want of jurisdiction, want of notice to the
or may order the entry of satisfaction to be made without party, collusion, fraud, or clear mistake of law or fact.
such admission. (47a) (50a)

SECTION 46. When Principal Bound by Judgment APPEALS

Against Surety. — When a judgment is rendered against
Rules 40-45 discuss the different modes of
a party who stands as surety for another, the latter is also
appeal:
bound from the time that he has notice of the action or
proceeding, and an opportunity at the surety's request to • Rule 40 – Appeal from Municipal Trial Courts to
join in the defense. (48a) the Regional Trial Courts
• Rule 41 - Appeal from the Regional Trial Courts
SECTION 47. Effect of Judgments or Final Orders. — • Rule 42 - Petition for Review from the Regional
The effect of a judgment or final order rendered by a court Trial Courts to the Court of Appeals
or of the Philippines, having jurisdiction to pronounce the • Rule 43 - Appeals from the Court of Tax Appeals
judgment or final order, may be as follows: and Quasi-Judicial Agencies to the Court of
Appeals
(a) In case of a judgment or final order against a specific • Rule 44 – Ordinary Appealed Cases (Procedure
thing, or in respect to the probate of a will, or the in the Court of Appeals)
administration of the estate of a deceased person, or • Rule 45 – Appeal by Certiorari to the Supreme
in respect to the personal, political, or legal condition Court
or status of a particular person or his relationship to
another, the judgment or final order is conclusive RULE 40
upon the title to the thing, the will or administration, or APPEAL FROM MUNICIPAL TRIAL COURTS TO THE
the condition, status or relationship of the person; REGIONAL TRIAL COURTS
however, the probate of a will or granting of letters of
administration shall only be prima facie evidence of WHERE TO APPEAL
the death of the testator or intestate;
SECTION 1. Where to Appeal.— An appeal
(b) In other cases, the judgment or final order is, with from a judgment or final order of a Municipal Trial
respect to the matter directly adjudged or as to any Court may be taken to the Regional Trial Court
other matter that could have been raised in relation exercising jurisdiction over the area to which the
thereto, conclusive between the parties and their former pertains. The title of the case shall remain as
successors in interest by title subsequent to the it was in the court of origin, but the party appealing
commencement of the action or special proceeding, the case shall be further referred to as the appellant
litigating for the same thing and under the same title and adverse party as the appellee. (n)
and in the same capacity; and

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Decisions of the MTC are appealable to the RTC which SECTION 4. Perfection of Appeal; Effect
has jurisdiction over the area where the MTC sits. As Thereof. — The perfection of the appeal and the
you all know, a regional trial court has specific effect thereof shall be governed by the provisions of
jurisdiction. For example, the RTC in Cebu City has Section 9, Rule 41. (n)
territorial jurisdiction only within Cebu City (before it
used to cover Talisay, Minglanilla, Naga, up to Carcar). NOTICE OF APPEAL

Examples: The notice of appeal applies to ordinary civil actions. It

1. If the decision was rendered by the municipal consists of one paragraph. The caption will remain the
trial court in Bantayan, the appeal will be taken same as the original caption (Before the 1997 rules, if
to the RTC in Bogo. It will be raffled in the four the court rules in favor of the plaintiff and the defendant
branches of RTC there. decides to appeal, the caption will be changed, mabali
2. If the decision was rendered in a municipal trial na).
court of Cebu City, the appeal will be taken to
the Regional Trial Court of Cebu City. MATERIAL DATA RULE

WHEN TO APPEAL These are the 2 important things you have to state in
the notice of appeal:
SECTION 2. When to Appeal.— An appeal 1. The date that you received the adverse
may be taken within fifteen (15) days after notice to decision;
the appellant of the judgment or final order appealed 2. The date you filed the appeal.
from. Where a record on appeal is required, the
appellant shall file a notice of appeal and a record on Example:
appeal within thirty (30) days after notice of the
judgment or final order. XXX
The period of appeal shall be interrupted by NOTICE OF APPEAL
a timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for “Notice is hereby given that the undersigned counsel for
extension of time to file a motion for new trial or the defendant received a copy of the decision of this
reconsideration shall be allowed. (n) Honorable Court on January 10, 2021. Not satisfied with
that said judgment, Defendant hereby manifests that he
1. The period remains to be 15 days for ordinary is appealing the said judgment to the Regional Trial
appeal. Court for appropriate action.
2. 30 days if records on appeal is required.
3. Period is interrupted by motion for Cebu City, Philippines, 21st of January 2021.”
reconsideration or new trial. XXX

In the case of special proceedings and multiple appeals, IN SPECIAL PROCEEDINGS

the period to appeal is 30 days. In these proceedings, a
mere notice of appeal is not sufficient. You have to You have to file a notice of appeal AND a records on
submit the records on appeal (to be discussed later). appeal within 30 days.
It is a tedious process to prepare a record on appeal. In
HOW TO APPEAL special proceedings, it is clear that the MTC now has
jurisdiction to entertain SPs such as probate of the will
SECTION 3. How to Appeal.— The appeal and settlement of the estate of a deceased person.
is taken by filing a notice of appeal with the court that
rendered the judgment or final order appealed from. MULTIPLE APPEALS
The notice of appeal shall indicate the parties to the
appeal, the judgment or final order or part thereof Refers to appeal of a decision that is decided by the
appealed from, and state the material dates showing court in separate stages. For example, in Expropriation
the timeliness of the appeal. cases, the court will decide if your property can be
A record on appeal shall be required only in subjected to expropriation. That order of the court itself
special proceedings and in other cases of multiple or is already appealable but it does not mean that the
separate appeals. entire case has already been decided because the court
The form and contents of the record on is still to decide how much is the just compensation.
appeal shall be as provided in Section 6, Rule 41.
Copies of the notice of appeal, and the record Within the reglementary period for appeal, you may file
on appeal where required, shall be served on the a Motion for New Trial or a Motion for Reconsideration.
adverse party. (n) You cannot ask for extension of time to file those two.

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You have to file it within the 15-day reglementary period PROCEDURE IN THE RTC
to appeal.
SECTION 7. Procedure in the Regional Trial
APPELLATE COURT DOCKET FEE Court.—
(a) Upon receipt of the complete record or the
SECTION 5. Appellate Court Docket and record on appeal, the clerk of court of the
Other Lawful Fees.— Within the period for taking an Regional Trial Court shall notify the parties of
appeal, the appellant shall pay to the clerk of the court such fact.
which rendered the judgment or final order appealed (b) Within fifteen (15) days from such notice, it shall
from the full amount of the appellate court docket and be the duty of the appellant to submit a
other lawful fees. Proof of payment thereof shall be memorandum which shall briefly discuss the
transmitted to the appellate court together with the errors imputed to the lower court, a copy of
original record or the record on appeal, as the case which shall be furnished by him to the adverse
may be. (n) party. Within fifteen (15) days from receipt of the
appellant's memorandum, the appellee may file
You have to pay it in the court of origin. Once you file his memorandum. Failure of the appellant to file
your notice of appeal, you also pay your docket fee. The a memorandum shall be a ground for dismissal
receipt of the payment of the docket fee will be attached of the appeal.
to the records of the case that will be forwarded to the (c) Upon the filing of the memorandum of the
RTC. appellee, or the expiration of the period to do so,
the case shall be considered submitted for
Effect of Non-Payment decision. The Regional Trial Court shall decide
The court should be liberal on this and call the attention the case on the basis of the entire record of the
of the appellant. For appeals from MTC to RTC, proceedings had in the court of origin and such
nonpayment is not a mandatory ground for the memoranda as are filed. (n)
dismissal of the appeal. However, in appeals from RTC
to CA, it is one of the mandatory grounds for the Effect if the Appellant fails to file Appellant’s
dismissal of the appeal (Rule 51). In other cases, the Memorandum
SC has said that the court actually has the discretion to
accept docket fees filed out of time. The appeal will be dismissed. In Section 7(b), the
submission of the Appellant’s Memorandum is a
DUTY OF THE CLERK OF COURT OF THE MTC compulsory rule and noncompliance therein authorizes
the dismissal of the appeal.
SECTION 6. Duty of the Clerk of Court.—
Within fifteen (15) days from the perfection of the When is the case on appeal deemed submitted for
appeal, the clerk of court or the branch clerk of court decision
of the lower court shall transmit the original record or
the record on appeal, together with the transcripts It is deemed submitted upon receipt of the appellee’s
and exhibits, which he shall certify as complete, to the memorandum or the lapse of time for the appellee to file
proper Regional Trial Court. A copy of his letter of such memorandum.
transmittal of the records to the appellate court shall
be furnished the parties. (n) Unlike the appellant’s memorandum, the appellee’s
memorandum is optional. The appellee is given 15
The Clerk of Court is given 15 days to complete the days from the receipt of the appellant’s memorandum
to file his memorandum. If the appellee does not file, the
records of the case, gather all the evidence and the
RTC will consider the case as submitted for decision.
pleadings, compile them, and forward all the records of
the case to the RTC. Upon receipt of the records, the
APPEAL FROM ORDERS DISMISSING CASE
RTC Clerk of Court will immediately inform the parties
that the records of the case are already in the RTC. The WITHOUT TRIAL; LACK OF JURISDICTION
appellant is then given 15 days to file his Memorandum.
Upon receipt of the Memorandum, the appellee is also SECTION 8. Appeal from Orders Dismissing Case
given the same period of 15 days to file his/her Without Trial; Lack of Jurisdiction.— If an appeal is
Memorandum. taken from an order of the lower court dismissing the
case without a trial on the merits, the Regional Trial
Court may affirm or reverse it, as the case may be. In
case of affirmance and the ground of dismissal is lack
of jurisdiction over the subject matter, the Regional
Trial Court, if it has jurisdiction thereover, shall try the
case on the merits as if the case was originally filed with

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 it. In case of reversal, the case shall be remanded for MTC has already conducted a trial, the parties will no
further proceedings. longer have to conduct a trial. Instead, the RTC may
require them to add additional pleadings and evidence
If the case was tried on the merits by the lower court to support their respective claims.
without jurisdiction over the subject matter, the
Regional Trial Court on appeal shall not dismiss the RULE 41
case if it has original jurisdiction thereof, but shall APPEAL FROM THE RTC TO CA
decide the case in accordance with the preceding
section, without prejudice to the admission of amended SUBJECT OF APPEAL
pleadings and additional evidence in the interest of SECTION 1. Subject of Appeal.— An
justice. (n) appeal may be taken from a judgment or final order
that completely disposes of the case, or of a particular
SECTION 9. Applicability of Rule 41.— The other matter therein when declared by these Rules to be
provisions of Rule 41 shall apply to appeals provided appealable.
for herein insofar as they are not inconsistent with or No appeal may be taken from:
may serve to supplement the provisions of this Rule. (a) An order denying a motion for new trial or
(n) reconsideration;
(b) An order denying a petition for relief or any similar
Rule when the MTC dismisses the case without motion seeking relief from judgment;
conducting a trial (c) An interlocutory order;
(d) An order disallowing or dismissing an appeal;
Two Scenarios: (e) An order denying a motion to set aside a judgment
by consent, confession or compromise on the
1. If an appeal is taken from an order of the lower ground of fraud, mistake or duress, or any other
court dismissing the case without a trial on the ground vitiating consent;
merits (f) An order of execution;
a. The Regional Trial Court may affirm or (g) A judgment or final order for or against one or more
reverse it, as the case may be. of several parties or in separate claims,
b. In case of affirmance and the ground of counterclaims, cross-claims and third-party
dismissal is lack of jurisdiction over the complaints, while the main case is pending, unless
subject matter, the Regional Trial the court allows an appeal therefrom; and
Court, if it has jurisdiction thereover, (h) An order dismissing an action without prejudice.
shall try the case on the merits as if In all the above instances where the
the case was originally filed with it. judgment or final order is not appealable, the
c. In case of reversal, the case shall be aggrieved party may file an appropriate
remanded for further proceedings. special civil action under Rule 65. (n)

2. If the case was tried on the merits by the An appeal may be taken from a judgment or final order
lower court without jurisdiction over the that completely disposes of the case. If that order does
subject matter, the Regional Trial Court on not dispose of the case with finality, it is called an
appeal shall not dismiss the case if it has interlocutory order which is not appealable.
original jurisdiction thereof, but shall
decide the case in accordance with the Final Order Interlocutory Order
preceding section, without prejudice to the One that finally One that determines
admission of amended pleadings and disposes of a case, incidental matters that
additional evidence in the interest of justice. leaving nothing more to does not touch on the
be done by the Court in merits of the case or put
If the MTC feels that it has no jurisdiction to try the case respect thereto. an end to the
and dismisses it, the plaintiff will naturally appeal it to proceedings.
the RTC. If the RTC finds out that the MTC is correct, it Subject to appeal. Proper remedy to
will assume jurisdiction and will be the one to decide question an improvident
the case. However, if the MTC erred in dismissing the interlocutory order is a
case, the RTC will remand the case back to the RTC. petition for certiorari
This is to save the appellant from paying another docket under Rule 65.
fee. Must express clearly Not considered
and distinctly the facts decisions or judgments
It is possible that the MTC wrongly assumes jurisdiction. and the law on which it within the constitutional
So, when an appeal is made on the decision of the is based. definition.
MTC, the RTC may assume jurisdiction. But since the

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No appeal may be taken from: when it is an ordinary civil action; or (2) an
(a) An order denying a motion for new trial or appeal by notice of appeal plus records on
reconsideration; appeal if it involves special proceedings or
(b) An order denying a petition for relief or any similar multiple appeals.
motion seeking relief from judgment;
(c) An interlocutory order; 2. Petition for Review under Rule 42
(d) An order disallowing or dismissing an appeal; This is a mode of appeal from the decision of
(e) An order denying a motion to set aside a judgment by the RTC done in the exercise of its appellate
consent, confession or compromise on the ground of jurisdiction. The case originated in the
fraud, mistake or duress, or any other ground vitiating Municipal Trial Court and it was appealed to the
consent; Regional Trial Court.
(f) An order of execution;
(g) A judgment or final order for or against one or more 3. Appeal by Certiorari under Rule 45
of several parties or in separate claims, This is different from Rule 65. Here, this is an
counterclaims, cross-claims and third-party appeal from the decision of the RTC directly
complaints, while the main case is pending, unless taken to the Supreme Court. The basis of the
the court allows an appeal therefrom; and appeal is pure question of law.
(h) An order dismissing an action without prejudice.
PERIOD OF ORDINARY APPEAL
REMEDY
SECTION 3. Period of Ordinary Appeal.—
Since you cannot appeal the orders mentioned above, the The appeal shall be taken within fifteen (15) days from
remedy is to file Certiorari under Rule 65. notice of the judgment or final order appealed from.
Where a record on appeal is required, the appellant
MODES OF APPEAL shall file a notice of appeal and a record on appeal
within thirty (30) days from notice of the judgment or
SECTION 2. Modes of Appeal.— final order.
The period of appeal shall be interrupted by
a timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for new trial
or reconsideration shall be allowed. (n)

PERIOD OF APPEAL

1. Ordinary Appeal – 15 or 30 days;

2. Habeas Corpus – 48 hours.

INTERRUPTION OF PERIOD TO APPEAL

Interruption of period to appeal by motion for new trial

or motion for reconsideration. No motion for extension
of time to file motion for new trial or reconsideration is
allowed. (See: NEYPES v. CA, Sept. 14, 2005).

In Neypes, the SC said that when your motion is denied

by the court, you shall have a fresh period of 15 days to
file your answer and not just the remaining period. The
reason behind this is to reconcile Rule 41 with Rules 42
and 43. In the latter rules, if your motion for recon or
new trial is denied, you are given a fresh period of 15
days and not just the balance. In those rules, the word
“interrupted” was not used. So the SC said that in order
to have a uniformity in the rules, we will use the fresh
MODES OF APPEAL period.

1. Ordinary Appeal The fresh period rule shall apply to:

Refers to an appeal from the decision of the 1. Rule 40 governing appeals from the MTCs to the
RTC in the exercise of its original jurisdiction. RTCs
You can appeal it by a mere (1) notice of appeal 2. Rule 41 governing appeals from the RTCs to CA

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 3. Rule 42 on petitions for review from the RTCs to NOTICE OF APPEAL
the CA Contents
4. Rule 43 on appeals from quasi-judicial agencies 1. Parties to the appeal
to the CA, and 2. Judgment or final order or part thereof appealed from
5. Rule 45 governing appeals by certiorari to the SC 3. Court to which the appeal is being taken, and
4. Material dates showing the timeliness of the appeal
A Motion for Reconsideration of an Interlocutory [Sec. 5, Rule 41]
Order is Not Subject to the 15-day Rule
Sec. 6 – Record on Appeal: Contents
If the order is interlocutory, you can file a motion for
reconsideration for it even beyond the 15-day rule SECTION 6. Record on Appeal; Form and Contents
because it is not the one governed by Rule 37 when it Thereof .— The full names of all the parties to the
speaks of a Motion for Reconsideration (See RUBIO V. proceedings shall be stated in the caption of the record on
MTCC OF CDO). appeal and it shall include the judgment or final order from
which the appeal is taken and, in chronological order,
DOCKET FEE AND OTHER LAWFUL FEES copies of only such pleadings, petitions, motions and all
interlocutory orders as are related to the appealed
SECTION 4. Appellate Court Docket and Other judgment or final order for the proper understanding of the
Lawful Fees.— Within the period for taking an appeal, issue involved, together with such data as will show that
the appellant shall pay to the clerk of the court which the appeal was perfected on time. If an issue of fact is to
rendered the judgment or final order appealed from, the be raised on appeal, the record on appeal shall include by
full amount of the appellate court docket and other reference all the evidence, testimonial and documentary,
lawful fees. Proof of payment of said fees shall be taken upon the issue involved. The reference shall specify
transmitted to the appellate court together with the the documentary evidence by the exhibit numbers or
original record or the record on appeal. (n) letters by which it was identified when admitted or offered
at the hearing, and the testimonial evidence by the names
Assuming that the Clerk of Court accepts your notice of of the corresponding witnesses. If the whole testimonial
appeal despite not having paid the docket fee, you still and documentary evidence in the case is to be included,
have to pay it provided it is still within the reglementary a statement to that effect will be sufficient without
period to file the docket fee. If beyond the reglementary mentioning the names of the witnesses or the numbers or
period, it is now the court’s discretion whether to accept letters of exhibits. Every record on appeal exceeding
it or not. twenty (20) pages must contain a subject index. (6a)

Sec. 5 – Notice of Appeal: Contents Record on Appeal

SECTION 5. Notice of Appeal.— The notice of appeal Monte: If the case is not an ordinary civil action but a
shall indicate the parties to the appeal, specify the special proceeding or a case that involves multiple
judgment or final order or part thereof appealed from, appeals, the mode of appeal is not just by mere Notice of
specify the court to which the appeal is being taken, and Appeal but has to be by Record on Appeal.
state the material dates showing the timeliness of the
appeal. (4a) When we say Appeal by Record on Appeal, you still have
to file a Notice of Appeal but at the same time file the
Monte: We were discussing the two modes of appeal Record on Appeal.
from the RTC to the CA. The appeal of the decision from
the RTC to the CA could be done either through Notice of The period is longer than an appeal by Notice of Appeal.
Appeal or Record of Appeal. An appeal by Notice of Appeal shall be done within 15
days whereas when it is an appeal by Records on Appeal,
Notice of Appeal – for ordinary civil actions. All you have the period is 30 days.
to do is to file a Notice of Appeal that consists only of one
paragraph where you state the date when you received What is a Record on Appeal and why is it required in
the adverse decision and you are not contented with the special civil cases?
decision. Hence, appeal to the higher court. Record on Appeal is a summary of all that transpired in
the RTC in relation to that particular case. You have to
Material Data Rule present in chronological form all of the copies of
pleadings, motions, interlocutory orders issued by the
There are only two (2) important dates to state in the court that are related to the appealed judgment or final
Notice of Appeal under the Material Data Rule: order for the proper understanding by the appellate court
1. The date when the decision was received of the issue involved in that particular case. You have to
2. The date when Notice of Appeal was filed reproduce the entire records of the case.

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You attach the Complaint, the Answer, the Reply, and all reglementary period. [Pimentel v. CA, G.R. No. L-39684
subsequent pleadings filed until the appealed decision is (1975)]
issued. You also incorporate the orders and interlocutory
orders relative to the case. They are to be presented in Sec. 7 – Approval of Record on Appeal
chronological order so that the appellate court will have
a better understanding of the case. SECTION 7. Approval of Record on Appeal.— Upon
the filing of the record on appeal for approval and if no
Multiple Appeals objection is filed by the appellee within five (5) days from
receipt of a copy thereof, the trial court may approve it as
Why do you have to reproduce the records of the presented or upon its own motion or at the instance of the
case? appellee, may direct its amendment by the inclusion of
Monte: In the example given a while ago, in a multiple any omitted matters which are deemed essential to the
appeal for example – it is a case where the court renders determination of the issue of law or fact involved in the
a final judgment on a particular issue of the case and that appeal. If the trial court orders the amendment of the
particular issue is already appealable. But since the other record, the appellant, within the time limited in the order,
issues have not yet been decided by the court, the entire or such extension thereof as may be granted, or if no time
records of the case cannot be forwarded to the CA yet, it is fixed by the order within ten (10) days from receipt
has to remain with the RTC because the trial court is still thereof, shall redraft the record by including therein, in
not yet finished with the case, it still has other issues to their proper chronological sequence, such additional
resolve. matters as the court may have directed him to
incorporate, and shall thereupon submit the redrafted
Since you are only appealing a portion of a case which is record for approval, upon notice to the appellee, in like
the judgment of the trial court on a particular issue, you manner as the original draft.
cannot bring the records of the case to the CA – you have
to make your own record and that is the Record on Monte: When you file an appeal by Record on Appeal,
Appeal. you submit a Record on Appeal with the RTC for approval.
You do not bring the record right away to the CA. You file
You are practically reproducing the records of the case in your appeal with the RTC, the court of origin. You will file
the court. The records of the case is what we call as the a Notice of Appeal and then a Record on Appeal, which
expediente. The expediente or the records of the case in is practically a sort of reproduction of records of the case
the possession of the court are arranged chronologically before the court. The appeal by Records of Appeal is
starting from the complaint down to the last pleading. The subject to the approval of the RTC.
manner by which the records of the court shall be
reproduced by appellant. IOW, he makes his own records If no objection within 5 days
if he appeals a certain portion of the decision to the
appellate court. The RTC will require the other party to make a
comment on your appeal. After the comment is made,
Contents of the record on appeal the RTC will decide whether the records are complete and
1. Full names of all the parties to the proceedings shall be accurate before it will grant the same.
stated in the caption of the record on appeal
2. The judgment or final order from which the appeal is If no objection is made within 5 days by the other party,
taken and, the RTC will approve the Record on Appeal.
3. In chronological order, copies of only such pleadings,
petitions, motions and all interlocutory orders as are Order Amendment to be complied within 10 days
related to the appealed judgment or final order for the
proper understanding of the issue involved, If there is an objection by the other party arguing that the
4. Together with such data as will show that the appeal Record of Appeal is not very accurate since there are
was perfected on time. [Sec. 6, Rule 41] some orders or pleadings that were not included in the
Records of Appeal submitted to the appellant because
Note: The requirement that the record on appeal must apparently it was not favorable to him. it is incumbent to
show on its face that the appeal was perfected on time the other party to call the attention of the court that it
is mandatory and jurisdictional that if not complied with, is not accurate.
the appeal must be dismissed. [1 Regalado 563, 2010
Ed.] The court will order the appellant to amend the Record on
Appeal. That order must be complied with within a
Exception: If the trial court issued an order to the effect period of 10 days.
that the appeal was seasonably perfected with the filing
of the notice of appeal and the record on appeal within the

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 Sec. 8. Joint Record on Appeal (b) Upon approval of Records on Appeal
• It is not upon the filing of Notice of Appeal
SECTION 8. Joint Record on Appeal.— Where both
parties are appellants, they may file a joint record on (b) As to the other party (appellee): Upon his filing also
appeal within the time fixed by Section 3 of this Rule, or of the Notice of Appeal or the lapse of the period to appeal
that fixed by the court. (8a)
Monte: When the court decides the case and rules in
Monte: It is possible that the two parties will appeal the favor of the plaintiff, the defendant filed an appeal. Since
decision of the court. If they both appeal, they may make it is an ordinary civil action, the defendant only filed a
a Joint Record on Appeal. Notice of Appeal. Once the defendant files a Notice of
Appeal, the appeal is deemed perfected as to him only but
Can you ask the court for an extension to file the not yet as to the other party because for all you know, the
Records on Appeal? plaintiff may also appeal.
Yes. The court may extend the period to file Records on
Appeal but not the Notice of Appeal. Remember that the receipt of the decision of the court will
not necessarily be on the same day. It is possible that the
Why? defendant received first the decision. For example,
Because it is very easy to make the Notice of Appeal. It is defendant received it on a Monday so he has 15 days
only one paragraph. It is just composed of 1-3 sentences. from the time of receipt to file a Notice of Appeal.

But the records of appeal needs time to prepare. 30 days The plaintiff received it several days after. He is also given
may not be enough to prepare the Records on Appeal. 15 days to appeal. So wala pa nidagan iya period to
That is why you may ask the court for an extension of time appeal on Monday when the defendant received it.
to file Records on Appeal. Normally, the RTC will grant an
extension of time to file Records on Appeal but not the The appeal is deemed perfected by the filing of Notice of
Records on Appeal. Appeal by the defendant but it is perfected only as to him
and not yet perfected as to the party-plaintiff. The plaintiff
Sec 9. Perfection of Appeal is also given 15 days to appeal if he wants to from the time
he received the decision.
SECTION 9. Perfection of Appeal; Effect Thereof .— A
party's appeal by notice of appeal is deemed perfected as If he did not appeal and allowed the 15 day period to
to him upon the filing of the notice of appeal in due time. expire, the appeal is already deemed perfected as to him.

A party's appeal by record on appeal is deemed perfected REVIEW

as to him with respect to the subject matter thereof upon
the approval of the record on appeal filed in due time. Appeal is deemed perfected as to the filing of Notice of
Appeal by the appellant and the lapse of period to appeal
In appeals by notice of appeal, the court loses jurisdiction by the appellee.
over the case upon the perfection of the appeals filed in
due time and the expiration of the time to appeal of the If it is an appeal by Records on Appeal, it is deemed
other parties. perfected upon the approval of the Records on Appeal
by the court that was submitted by the appellant and also
In appeals by record on appeal, the court loses jurisdiction the lapse of the period of the party to file a Record of
only over the subject matter thereof upon the approval of Appeal if he wants to.
the records on appeal filed in due time and the expiration
of the time to appeal of the other parties. Effect of Perfection of Appeal

In either case, prior to the transmittal of the original record What is the effect of the perfection of an appeal?
or the record on appeal, the court may issue orders for the The court loses jurisdiction over the case.
protection and preservation of the rights of the parties
which do not involve any matter litigated by the appeal, Monte: Once the appeal is perfected, the RTC loses
approve compromises, permit appeals of indigent jurisdiction over the case, and the jurisdiction is now
litigants, order execution pending appeal in accordance transferred to the CA.
with Section 2 of Rule 39, and allow withdrawal of the
appeal. Therefore, as a rule, the RTC could no longer act on
anything regarding the case.
(a) As to him (appellant):
Exception: Residual Jurisdiction
(a) Upon filing of Notice of Appeal
• This is in case of ordinary civil actions.

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Residual Jurisdiction Sec 10. Duty of the Clerk of Court upon Perfection of
Appeal
Means that even if the court has already lost jurisdiction
by the perfection of appeal, it may still do the following: SECTION 10. Duty of Clerk of Court of the Lower
1. Issue protective order; Court Upon Perfection of Appeal.— Within thirty (30)
2. Approve compromises; days after perfection of all the appeals in accordance with
3. Permit appeals of indigent litigants; the preceding section, it shall be the duty of the clerk of
4. Order discretionary execution court of the lower court:

N.B. This can be done only if the records of the case are (a) To verify the correctness of the original record or the
still with the trial court. record on appeal, as the case may be, and to make a
certification of its correctness;
Monte: IOW, although the appeal is perfected already
and jurisdiction is transferred from the lower court to the (b) To verify the completeness of the records that will be
appellate court, for as long as the records of the case has transmitted to the appellate court;
not yet been forwarded by the trial court to the court of
appeals, it may still entertain some matters pertaining to (c) If found to be incomplete, to take such measures as
the case. may be required to complete the records, availing of the
authority that he or the court may exercise for his purpose;
Note: An appellant who fails to perfect his appeal on time and
due to FAME may file for a petition for relief under Sec. 2,
Rule 38. If his petition for relief is denied, he can file a (d) To transmit the records to the appellate court.
petition under Rule 65, since the denial of a petition for
relief is no longer appealable under Sec. 1 of Rule 41 [De If the efforts to complete the records fail, he shall indicate
Luna v. Palacio, G.R. No. L-26927 (1969)] in his letter of transmittal the exhibits or transcripts not
included in the records being transmitted to the appellate
Effect of perfected appeal court, the reasons for their non-transmittal, and the steps
1. In appeals by notice of appeal, the court loses taken or that could be taken to have them available.
jurisdiction over the case upon the perfection of the
appeals filed in due time and the expiration of the time to The clerk of court shall furnish the parties with copies of
appeal of the other parties. his letter of transmittal of the records to the appellate
court.
2. In appeals by record on appeal, the court loses
jurisdiction only over the subject matter thereof upon the Once the appeal is already perfected, it is the duty of the
approval of the records on appeal filed in due time and COC of the RTC:
the expiration of the time to appeal of the other parties. 1. To verify the correctness of original records and
[Sec. 9, Rule 41] certify its correctness;
2. To verify completeness of records;
Residual powers/jurisdiction of the RTC 3. If incomplete, to complete it;
In either case, prior to the transmittal of the original record 4. To transmit records to appellate court within 30 days
or the record on appeal, the court may
1. Issue orders for the protection and preservation of the N.B. If efforts to complete records fail to state in its
rights of the parties which do not involve any matter transmittal letter the reason for failure and steps taken to
litigated by the appeal remedy it
2. Approve compromises
3. Permit appeals of indigent litigants Monte: The COC of the RTC, upon the perfection of
4. Order execution pending appeal in accordance with appeal, is given 30 days to gather all the records of the
Sec. 2 of Rule 39, and case, compile them, and send them to the Court of
5. Allow withdrawal of the appeal [Sec. 9, Rule 41] Appeals for review.

Note: There is no residual jurisdiction to speak If the efforts to complete the records fail, the COC must
of where no appeal or petition has even been filed. still forward the records of the case to the CA and give an
(Fernandez vs CA GR No 131094) explanation why the record could not be completed and
what are the steps taken to remedy it.

Example: TSN could no longer be produced

There is one stenographic notes of one hearing that is no

longer available because when the hearing was

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conducted, the stenographer is already dead. She was payment of the appellate court docket and other lawful
not able to transcribe the transcript of stenographic notes fees, a certified true copy of the minutes of the
in that particular hearing. The stenographic notes is proceedings, the order of approval, the certificate of
personal to him/her. Other stenographers cannot correctness, the original documentary evidence referred
transcribe, di sila kasabot. Dili na ma transcribe since the to therein, and the original and three (3) copies of the
stenographer already died. So the stenographic notes transcripts. Copies of the transcripts and certified true
cannot be completed. There is one stenographic note copies of the documentary evidence shall remain in the
that is missing which is very important for a complete lower court for the examination of the parties. (11a)
understanding of the case.
It should be transmitted 30 days from perfection of the
If that’s the case, the COC has to explain that in his appeal.
transmittal letter to the CA. The CA may ask the parties to
agree on what transpired on that particular hearing. They Sec. 13 – Dismissal of Appeal
will have some sort of stipulation of facts of what
transcribed from the hearing, what where the questions SECTION 13. Dismissal of Appeal.— Prior to the
and answers, what was the testimony all about. That transmittal of the original record or the record on appeal
could be resorted to in case the record is incomplete. to the appellate court, the trial court may motu proprio or
on motion dismiss the appeal for having been taken out
Note: Even if the appeal has already been perfected but of time.
the records have not yet been transmitted to the appellate
court, the trial court still has jurisdiction to set aside its The trial court may motu proprio or on motion dismiss the
order approving the record on appeal. [Cabungcal v. appeal on the following grounds:
Fernandez, G.R. No. L-16520 (1964)] 1. Appeal taken out of time
2. Non-payment of docket fee
Sec. 11 – Transcript
Monte: The dismissal of the appeal by non-payment of
SECTION 11. Transcript.— Upon the perfection of the docket fee is one of the grounds for the dismissal of
appeal, the clerk shall immediately direct the appeal under Rule 15 but the court is given the discretion
stenographers concerned to attach to the record of the not to dismiss the case and instead allow the parties to
case five (5) copies of the transcripts of the testimonial file the correct amount of docket fee.
evidence referred to in the record on appeal. The
stenographers concerned shall transcribe such But when the appeal is taken out of time, normally the
testimonial evidence and shall prepare and affix to their court is very strict on this. It will dismiss the case because
transcripts an index containing the names of the compliance with the reglementary period to perfect
witnesses and the pages wherein their testimonies are an appeal is mandatory and jurisdictional.
found, and a list of the exhibits and the pages wherein
each of them appears to have been offered and admitted RULE 42
or rejected by the trial court. The transcripts shall be PETITION FOR REVIEW FROM RTC TO CA
transmitted to the clerk of the trial court who shall
thereupon arrange the same in the order in which the Sec. 1 – How Appeal Taken
witnesses testified at the trial, and shall cause the pages
to be numbered consecutively. SECTION 1. How Appeal Taken; Time for Filing.— A
party desiring to appeal from a decision of the Regional
When the records are transmitted to the Court of Appeals, Trial Court rendered in the exercise of its appellate
five (5) copies of the transcript of stenographic notes jurisdiction may file a verified petition for review with the
(TSN) should be submitted. Court of Appeals, paying at the same time to the clerk of
said court the corresponding docket and other lawful fees,
Transfer of Stenographic Notes (TSN) – these are the depositing the amount of P500.00 for costs, and
records of the questions and answers of the witness furnishing the Regional Trial Court and the adverse party
during a particular hearing which should be in 5 copies to with a copy of the petition. The petition shall be filed and
be submitted to the Court of Appeals served within fifteen (15) days from notice of the decision
sought to be reviewed or of the denial of petitioner's
Sec. 12 – Transmittal motion for new trial or reconsideration filed in due time
after judgment. Upon proper motion and the payment of
SECTION 12. Transmittal.— The clerk of the trial court the full amount of the docket and other lawful fees and the
shall transmit to the appellate court the original record or deposit for costs before the expiration of the reglementary
the approved record on appeal within thirty (30) days from period, the Court of Appeals may grant an additional
the perfection of the appeal, together with the proof of period of fifteen (15) days only within which to file the
petition for review. No further extension shall be granted

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except for the most compelling reason and in no case to In addition to the docket fees, you are also required to pay
exceed fifteen (15) days. other lawful fees plus a deposit of P500 pesos for cost.
You pay that with the CA and not with the RTC.
Monte: This Rule 42 also refers to the appeal from the
decision of the RTC to the Court of Appeals but Rule 42 You will also need to furnish the RTC and the adverse
refers to the appeal of the decision of the RTC to the CA party a copy of the petition.
on cases that were decided by the RTC in its exercise of
appellate jurisdiction. Meaning, the case did not really SUMMARY
originate from the RTC. The case originated in the MTC,
it was appealed to the RTC, and when the RTC decided
the case against the losing party, the latter may appeal Appeal from the decision appeal from the decision
the decision of the RTC to the CA. The mode of appeal is of the RTC in the exercise of the RTC in the exercise
no longer by Notice of Appeal or by Record of Appeal. It of its original jurisdiction. of its appellate
shall be called Petition for Review under Rule 42. jurisdiction

Rule 41 vs Rule 42 Mode of appeal is either: Verified Petition for

1. Notice of Appeal Review
What is the difference between Rule 41 and Rule 42? 2. Record on Appeal
Rule 41 refers to the appeal from the decision of the RTC
in the exercise of its original jurisdiction. Appeal is filed with the Appeal is filed with the
RTC Court of Appeals
Rule 42 refers to the appeal from the decision of the RTC
in the exercise of its appellate jurisdiction over the MTC. The docket fees and other The docket fees, other
lawful fees is paid with the lawful fees, and deposit of
The method of appeal is also quite different. RTC the amount of P500 for
In Rule 42, when the case is decided by the RTC in the costs is directly paid with
exercise of its appellate jurisdiction and you are not the CA
contented with the decision and appeal it to the CA, what
you will file is a Petition for Review under Rule 42.
How many copies of the petition?
In Rule 41, you file your Notice of Appeal with the RTC, You have to prepare at least 7 copies. Unlike in the SC
the court which rendered the decision you are where you have to prepare 18 copies.
questioning. When you file a Record on Appeal, you also
file it with the RTC because it is subject to the approval of When to File
the RTC. Once approved by the RTC, the approved
Records on Appeal will then be submitted to the CA. Within 15 days from notice of the decision or denial of
motion for reconsideration or new trial
In Rule 42, you file the appeal with the Court of Appeals • This is what I said a while ago when I discussed with
already. you Rule 41 where the Supreme Court in the case of
Neypes vs the Court of Appeals said that although
How Appeal Taken Rule 41 says that the filing of an MR/MNT shall
interrupt the running of the 15 day period to appeal –
How are you going to file the appeal with the CA? the word “interrupt” means that if it was denied, you
1. By verified petition; only have the balance of the 15 day period to file your
(a) Within 15 days from notice of judgment or appea – the SC said that the provisions of Rule 42
final order, or should be followed in order to synchronize Rule 41
(b) Within 15 days from notice of denial of with Rules 42 and 43 because both Rules (42 and
petitioner’s MNT or MR 43) provides that if there is a Motion for New Trial or
2. Paying at the same time the docket fees and Motion for Reconsideration filed within the
other lawful fees with the CA reglementary period to perfect an appeal and the
3. Deposit P500 for cost motion was denied, you have 15 days still to file your
4. Furnish the RTC and adverse party a copy of the appeal.
petition
The CA may grant extension of time to file petition for 15
How does it differ from Rule 41? days only after complying with the prior conditions of
In Rule 41, you file the docket fee in the RTC. In Rule 42, payment of docket fees and cost.
you file the docket fee directly with the CA, and not
anymore to the RTC. • Within the 15 day period, you have to file your
Petition for Review.

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 • The CA may however grant an extension of time for Monte: You implead the lower judge as respondent
you to file your PFR under Rule 42. But the CA can only in petition for certiorari under Rule 65 for
only grant you one extension of 15 days. questioning the actuations of the judge constituting
• The original period of 15 days can be extended to grave abuse of discretion. In an ordinary appeal, you
another 15 days but the court will grant your Motion do not include the judge as respondent.
for Extension of Time to file a PFR under Rule 42
only after complying with the prior conditions of 3. Indicate specific material dates;
payment of docket fees and cost. The date you received the decision and the date you
filed your appeal.
Can you ask for extension?
No further extension except for most compelling reason. 4. Set forth concisely a statement of the matters involved,
issues raised, specification of errors of facts or law or
Monte: The general rule is that you are only allowed one both
extension. But if you read Rule 42 it says there that no This is one of the distinctive feature of Rule 42. You
further extension except for most compelling reason. can raise as an issue before the CA not only
questions of fact but also questions of law or both.
Sec. 2 – Form and Contents IOW, even if the issue that you raised is pure question
of law, you can file your appeal with the CA under Rule
SECTION 2. Form and Contents.— The petition shall be 42.
filed in seven (7) legible copies, with the original copy
intended for the court being indicated as such by the In Rule 41 which involves an appeal of a decision of
petitioner, and shall (a) state the full names of the parties the RTC in its exercise of original jurisdiction, if the
to the case, without impleading the lower courts or judges issue you raised is pure question of law, you do not go
thereof either as petitioners or respondents; (b) indicate to the CA. You go directly to the Supreme Court by
the specific material dates showing that it was filed on way of Certiorari under Rule 45.
time; (c) set forth concisely a statement of the matters
involved, the issues raised, the specification of errors of Please take note of the difference between Rule 41
fact or law, or both, allegedly committed by the Regional and Rule 42.
Trial Court, and the reasons or arguments relied upon for
the allowance of the appeal; (d) be accompanied by 5. Reasons or arguments relied upon for the allowance
clearly legible duplicate originals or true copies of the of the appeal;
judgments or final orders of both lower courts, certified
correct by the clerk of court of the Regional Trial Court, 6. Accompanied by clearly legible duplicate originals or
the requisite number of plain copies thereof and of the true copies of the judgment or final orders appealed;
pleadings and other material portions of the record as
would support the allegations of the petition. 7. Submit a certification of non-forum shopping
In the Petition for Review under Rule 42, Certification
The petitioner shall also submit together with the petition of Non-Forum Shopping is a requirement. You have to
a certification under oath that he has not theretofore attach and state in your petition the CNFS.
commenced any other action involving the same issues in
the Supreme Court, the Court of Appeals or different Certification of Non-Forum Shopping – A
divisions thereof, or any other tribunal or agency; if there certification from the petitioner that he did not file any
is such other action or proceeding, he must state the action or there are no other actions similar to the one
status of the same; and if he should thereafter learn that that he is appealing. There are no other actions
a similar action or proceeding has been filed or is pending pending anywhere involving the same parties and the
before the Supreme Court, the Court of Appeals, or same issues which is the subject matter of the appeal.
different divisions thereof, or any other tribunal or agency, Failure to comply with CNFS is a ground for
he undertakes to promptly inform the aforesaid courts and dismissal of the case.
other tribunal or agency thereof within five (5) days
therefrom. N.B. Appeal here may be on question of fact, question
of law or both facts and law
What are the forms and contents of a Petition for
Review?

1. Petition shall be in 7 copies;

2. State the full names of the parties without impleading

the lower court judge as respondent;

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 Sec. 3 – Effect of Failure to Comply with Monte: If you are the respondent in the PFR under Rule
Requirements 42, once you receive the petition filed by the petitioner-
appellant, do not answer right away. For all you know, it
SECTION 3. Effect of Failure to Comply with might dismiss the case outright because the CA can
Requirements.— The failure of the petitioner to comply dismiss the petition outright.
with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit Remember, the PFR which is a mode of appeal is not a
for costs, proof of service of the petition, and the contents matter of right but a matter of judicial discretion or a
of and the documents which should accompany the privilege given to you only after you have complied with
petition shall be sufficient ground for the dismissal thereof. the requirements under the law.
(n)
Grounds for Outright Dismissal
Monte: Failure to comply with the requirements results to
a dismissal of the appeal. 1. Petition is patently without merit;
2. Prosecuted manifestly for delay;
What are these requirements? 3. Questions raised therein are too unsubstantial to
1. Payment of docket fee and other lawful fees or require consideration
payment of deposit for costs
2. Filing your petition within the reglementary days Monte: If the CA finds that your petition is very
of 15 days unmeritorious or that it is only intended to delay the final
3. Prepared in 7 copies resolution of the case or the questions raised therein are
4. Compliance with the forms and contents as too unsubstantial to require consideration, it may
required by the rules like stating the full names of outrightly dismiss the case.
the parties, indicating the specific material dates,
setting fort concisely a statement of the matters Sec. 5 – Contents of the Comment
involved, the issues raised, and the specification
of errors of facts or law or both SECTION 5. Contents of Comment.— The comment of
5. Reasons or arguments relied upon for the the respondent shall be filed in seven (7) legible copies,
allowance of appeal accompanied by certified true copies of such material
6. Attachment of the clearly legible duplicate original portions of the record referred to therein together with
or true copies of the judgment or final orders other supporting papers and shall (a) state whether or not
appealed he accepts the statement of matters involved in the
7. CNFS petition; (b) point out such insufficiencies or inaccuracies
as he believes exist in petitioner's statement of matters
Note: Failure to append the pleadings and material involved but without repetition; and (c) state the reasons
portions of the record does not justify the outright why the petition should not be given due course. A copy
dismissal of the petition. There is substantial compliance thereof shall be served on the petitioner.
when the pleadings were attached to the MR. [Mendoza
v. David, G.R. No. 147575 (2004)] If the court finds that the petition has complied with all the
requirements under the law and therefor it is sufficient in
Sec. 4 – Action on the Petition form and substance, the CA may require the respondent
to file his comment to the petition.
SECTION 4. Action on the Petition.— The Court of
Appeals may require the respondent to file a comment on The comment:
the petition, not a motion to dismiss, within ten (10) days 1. Must be in 7 copies
from notice, or dismiss the petition if it finds the same to 2. Statement whether he accepts the statement of
be patently without merit, prosecuted manifestly for delay, matters involved
or that the questions raised therein are too unsubstantial 3. Point out insufficiencies or inaccuracies in the
to require consideration. statement of matters involved;
4. Statement of reasons why the petition should not
be given due course
Require Comment within 10 days; Outright
Dismissal
Monte: This is what the comment of the respondent
contains.
Once your petition for review is already filed with the
Court of Appeals, what will the CA do?
If he does not accept the statement of the matters
(a) It may require the respondent to comment within
involved because for him it is inaccurate or incomplete, he
10 days; or
will tell the court what are the inaccuracies in the
(b) It may dismiss the case outright.
presentation of the matters involved.

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Most importantly, he must argue in his Comment why the Sec. 8 – When Appeal is Deemed Perfected
petition should not be given due course.
SECTION 8. Perfection of Appeal; Effect Thereof .—
Sec. 6 – Due Course (a) Upon the timely filing of a petition for review and the
payment of the corresponding docket and other lawful
SECTION 6. Due Course.— If upon the filing of the fees, the appeal is deemed perfected as to the petitioner.
comment or such other pleadings as the court may allow
or require, or after the expiration of the period for the filing The Regional Trial Court loses jurisdiction over the case
thereof without such comment or pleading having been upon the perfection of the appeals filed in due time and
submitted, the Court of Appeals finds prima facie that the the expiration of the time to appeal of the other parties.
lower court has committed an error of fact or law that will
warrant a reversal or modification of the appealed However, before the Court of Appeals gives due course
decision, it may accordingly give due course to the to the petition, the Regional Trial Court may issue orders
petition. (n) for the protection and preservation of the rights of the
parties which do not involve any matter litigated by the
After the Comment is filed by the respondent, the CA will appeal, approve compromises, permit appeals of indigent
now decide whether it will give due course to the petition litigants, order execution pending appeal in accordance
or not. with Section 2 of Rule 39, and allow withdrawal of the
appeal. (9a, R41)
If the Court of Appeals find prima facie that the lower court
has committed an error of fact or law that will warrant a (b) Except in civil cases decided under the Rule on
reversal or modification of its decision, then it will give due Summary Procedure, the appeal shall stay the judgment
course to the petition. or final order unless the Court of Appeals, the law, or
these Rules shall provide otherwise.
Monte: When the CA gives due course to the petition it
does not mean that the appellant or the petitioner already When is appeal deemed perfected?
wins the case, not necessarily. Giving due course means In the case of a Petition for Review, the appeal is deemed
that the court will give more time in scrutinizing the perfected as to the appellant-petitioner the moment he:
records of the case to see whether the RTC has really 1. Files the PFR to the Court of Appeals and
committed an error. Giving due course means that the 2. At the same time pay the docket fees, other lawful
court has found prima facie evidence that the lower court fees plus deposit for costs
has committed an error of fact or law that will warrant a
reversal or modification of its decision. Effect of Perfection
1. Trial court loses jurisdiction
Sec. 7 –Elevation of Record Exception: Residual jurisdiction

SECTION 7. Elevation of Record.— Whenever the 2. Appeal stays judgment or final order
Court of Appeals deems it necessary, it may order the Exception: Rule on summary procedure
clerk of court of the Regional Trial Court to elevate the
original record of the case including the oral and Illustrations:
documentary evidence within fifteen (15) days from (1) Ordinary case which emanated from the
notice. Municipal Trial Court (MTC) and does not fall
under the Rules of Summary Procedure
Monte: When the CA says “petition is given due course”,
the next step is that the CA will now require the RTC to If that case is appealed to the RTC and the RTC affirmed
elevate the entire records of the case within 15 days from the decision of the of the MTC, but you are still not
notice for review. That is now the time where the Court of contented and appealed the decision of the RTC by filing
Appeals will closely scrutinize the records of the case. a Petition for Review under Rule 42. The decision of the
There is prima facie evidence that the lower court has RTC affirming the decision of the MTC cannot be
committed an error of fact or law. implemented yet. It will stay the judgment or final
order of the RTC.
If your petition is give due course by the Appellate Court,
it means that you have a big chance of winning. If (2) Judgment of the RTC was on a case that falls
otherwise the CA finds that your petition is unmeritorious, under Summary Procedure decided by the MTC
it can outrightly dismiss your petition without really
requiring the respondent to file a Comment. Diretso na ka The decision of the RTC even if appealed to the Court of
knock out first round pa. :( Appeals under Rule 42 shall not stay the execution.

Example: Ejectment case

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Forcible entry or unlawful detainer belongs to the
exclusive jurisdiction of the MTC and it is under the Rules
of Summary Procedure.

Suppose the MTC ruled in favor of the plaintiff ordering

the defendant to vacate the land. The defendant appealed
the case to the RTC. The RTC affirmed the decision of the
MTC. The defendant appealed the case to the CA by way
of Petition for Review under Rule 42.

Will the ejectment of the defendant be stayed by his

appeal to the Court of Appeals?
No because it is under the Rules of Summary Procedure
not unless the defendant puts up a supersedeas bond,
then the Court of Appeals may allow it.

Jurisdiction of the RTC

1. The RTC loses jurisdiction over the case upon the
perfection of the appeals filed in due time and the
expiration of the time to appeal of the other parties.
2. However, before the CA gives due course to the
petition, the RTC may:
a. Issue orders for the protection and preservation of the
rights of the parties which do not involve any matter
litigated by the appeal, approve compromises
b. Permit appeals of indigent litigants c. Order execution
pending appeal in accordance with Sec, 2 of Rule 39, and
d. Allow withdrawal of the appeal. [Sec. 8(a), Rule 42]

Note: The Doctrine of Residual Jurisdiction of the RTC,

at item (2) above, applies as in cases under Rule 42,
except that the RTC must exercise this jurisdiction
before the CA gives due course to the petition. [Sec.
8(a), Rule 42]

In contrast, the RTC must exercise residual jurisdiction in

Rule 41 prior to transmittal of the original record or
the record on appeal. [Sec. 9, Rule 41]

Sec. 9 – Submission for Decision

SECTION 9. 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 itself.

The court may set the case for:

1. Oral argument or
2. Ask parties to submit a memoranda.

Monte: Oral argument in the Court of Appeals would

seldom happen. Most of the time what the CA will do is to
require their respective memoranda in support of their
respective contention.

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 Recap on Appeals right away. You can go to the CA on pure questions of
law.
Monte: Okay, we have already discussed the different
modes of appeal, from the MTC as well as the decision of Summary
the RTC to the CA.
Rule 42
To recapitulate what I have already discussed with you Rule 41 Petition for Review
from Rules 41 to 42, decisions of the RTC can be Appeal from the from the Regional Trial
appealed to the CA either by an ordinary appeal, or by Regional Trial Courts Courts to the Court of
way of a petition for review. Appeals
Governs appeals from the Governs appeals from the
If the case is an ordinary civil action, the mode of appeal decision of the RTC in the RTC in the exercise of its
is by mere notice of appeal. If it is under a special exercise of its original appellate jurisdiction
proceeding, the mode of appeal is notice of appeal PLUS jurisdiction
a record on appeal. Appeal and payment of Appeal and payment of
docket & other lawful fees docket & other lawful fees
Kind of Action Mode of Appeal is done with the court of is done directly with the
Ordinary civil action Notice of appeal origin, which is the RTC appellate court, or the CA
Special civil action Notice of appeal + record Appeal may involve The CA can entertain
on appeal questions of fact and appeals involving pure
mixed questions of fact & questions of law
Rule 41 vs. Rule 42 law; pure questions of law
must be appealed directly
Monte: Now, Rule 41 governs appeals from the decision with the SC (Rule 45)
of the RTC done in the exercise of its original jurisdiction.
Meaning, the case was originally filed in the RTC, and you RULE 43
appeal the decision of the RTC in that case to the CA. So, APPEAL FROM THE COURT OF TAX APPEALS AND
you are governed there by Rule 41. QUASI-JUDICIAL AGENCTIES TO THE COURT OF
APPEALS
Now, if the case originated in the MTC, and the decision
of the MTC is appealed to the RTC, the decision of the Monte: Okay, now let’s move on to another mode of
RTC can still be appealed to the CA but this time, the appeal which is governed by Rule 43. In Rue 43, we are
mode of appeal is done by petition for review under Rule also talking of a petition for review.
42.
Sec. 1. Scope
There is a big difference as to the method of making an
appeal in Rule 41 and Rule 42. Because in Rule 41, you SECTION 1. Scope. — This Rule shall apply to appeals
file your appeal with the court of origin, which is the RTC; from judgments or final orders of the Court of Tax Appeals
and what you file in the RTC is only your notice of appeal, and from awards, judgments, final orders or resolutions of
and a record on appeal in case it is a special proceeding or authorized by any quasi-judicial agency in the exercise
or a case that involves multiple appeals. of its quasi- judicial functions. Among these agencies are
the Civil Service Commission, Central Board of
Now, in the case of Rule 42, the appeal is not filed in the Assessment Appeals, Securities and Exchange
RTC. It is filed directly with the appellate court, which is Commission, Office of the President, Land Registration
the CA, and you have to pay the docket fees and other Authority, Social Security Commission, Civil Aeronautics
lawful fees also in the CA unlike in Rule 41 where you pay Board, Bureau of Patents, Trademarks and Technology
the docket fee and other lawful fees in the RTC. Transfer, National Electrification Administration, Energy
Regulatory Board, National Telecommunications
Okay, and also, another distinction is that in Rule 41, you Commission, Department of Agrarian Reform under
appeal the decision of the RTC to the CA on questions of Republic Act No. 6657, Government Service Insurance
fact, or on mixed questions of fact or law. If it is a pure System, Employees Compensation Commission,
question of law, you cannot appeal to the CA; you go Agricultural Inventions Board, Insurance Commission,
directly to the SC by way of a petition for certiorari under Philippine Atomic Energy Commission, Board of
Rule 45. Investments, Construction Industry Arbitration
Commission, and voluntary arbitrators authorized by law.
But in Rule 42, which is a petition for review – which is (n)
also an appeal from the RTC to the CA – you can raise to
the CA pure questions of law. You need not go to the SC

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What is the petition for review under Rule 43? Sec. 2. Cases Not Covered
A: This Rule applies to the appeal from decisions of the
following quasi-judicial bodies, in the exercise of its quasi- SECTION 2. Cases Not Covered. — This Rule shall not
judicial power: apply to judgments or final orders issued under the Labor
1) Civil Service Commission; Code of the Philippines. (n)
2) Central Board of Assessment Appeals;
3) Securities and Exchange Commission; Cases not covered:
− Monte: But now, the SEC has already been
divested of its quasi-judicial powers; they can 1) NLRC and DOLE decisions are not covered, but this
no longer hear, entertain or decide intra- has already been abandoned in the case of St. Martin
corporate disputes; the quasi-judicial power Funeral Homes vs. NLRC (A/N: Discussed under the
of the SEC was already transferred to the topic of jurisdiction);
RTC.
4) Office of the President; 2) Appeals from the decisions of the Office of the
5) Land Registration Authority; Ombudsman is now appealable to the CA (Fabian
6) Social Security Commission; vs. Desierto);
7) Civil Aeronautics Board;
8) Bureau of Patents and Trademarks; 3) RTC decisions when it is acting as a corporate court
9) National Electrification Administration; is appealable to the CA under Rule 43 and not Rule
10) Energy Regulatory Board; 41. (See: R.A. 87992 & A.M. No 04-9-07-SC3).
11) National Telecommunication Commission;
12) Department of Agrarian Reform (DARAB); Monte: The following are not covered under Rule 43:
13) Government Service Insurance System;
14) Employees Compensation Commission; (1) NLRC and DOLE decisions
15) Philippine Atomic Energy Commission;
16) Board of Investments; Why do I say this (Rule 43) does not include NLRC
17) Construction Industry Arbitration Commission; and DOLE decisions? Before, in the Labor Code,
18) Voluntary Arbitrators. decisions of the NLRC and DOLE is appealable
directly to the SC. But not anymore now because the
Monte: The petition for review under Rule 43 refers to SC, in the case of St. Martin Funeral Homes, said:
the appeal from the decision of the CTA and from the “We have to observe the hierarchy of courts. You
different quasi-judicial agencies. And the decision of the should not directly go to the SC from the decision of
quasi-judicial agencies shall be appealed to the CA by a quasi-judicial body. You should pass through the
way of a petition for review. CA before you can reach the SC.”

It’s different from a petition for review under Rule 42. So, in the St. Martin Funeral Homes, the decision of
Duna sa’y petition for review under Rule 43 except that in the NLRC is appealable to the CA by way of a
Rule 43, the decision is not that of the RTC; it is the petition for certiorari under Rule 65, which is
decision of the quasi-judicial bodies. actually not a mode of appeal. It’s by way of an
original special civil action under Rule 65.
This Rule 43 applies only to appeal from the decisions of
the following quasi-judicial bodies in the exercise of its Now, if the CA decides on that case and still you are
quasi-judicial powers. (See list above). not contented, then that is the time you can now go to
the SC. But this time, you have to use another
Note: Decisions of the Court of Tax Appeals (CTA) are certiorari. This time, it will be way of a certiorari under
now appealable directly to the SC pursuant to R.A. 92821 Rule 45.
amending R.A. 1125.
(2) Appeals from the Ombudsman
Monte: Now, the decisions of the CTA are appealable
directly to the SC. The CTA now is treated as equal to the
CA. That’s why the composition of the CTA, their judges
there are also called justices, just like in the CA.

1
AN ACT EXPANDING THE JURISDICTION OF THE COURT OF TAX OTHERWISE KNOWN AS THE LAW CREATING THE COURT OF TAX
APPEALS (CTA), ELEVATING ITS RANK TO THE LEVEL OF A APPEALS, AND FOR OTHER PURPOSES
COLLEGIATE COURT WITH SPECIAL JURISDICTION AND 2 The Securities Regulation Code
ENLARGING ITS MEMBERSHIP, AMENDING FOR THE PURPOSE 3 Re: Mode of Appeal in Cases Formerly Cognizable by
CERTAIN SECTIONS OR REPUBLIC ACT NO. 1125, AS AMENDED,
the Securities and Exchange Commission

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(3) Decisions of the RTC acting as a corporate court Monte: In other words, even if there is no question of fact
involved -- you are questioning the decision of the quasi-
RA 8799, SEC. 5.2: judicial body on the basis of a pure question of law – you
5.2. The Commission’s jurisdiction over all cases can elevate that to the CA. You need not go to the SC
enumerated under section 5 of Presidential Decree directly.
No. 902-A is hereby transferred to the Courts of
general jurisdiction or the appropriate Regional Trial Sec. 4. Period to Appeal
Court: Provided, That the Supreme Court in the
exercise of its authority may designate the Regional SECTION 4. Period of Appeal. — The appeal shall be
Trial Court branches that shall exercise jurisdiction taken within fifteen (15) days from notice of the award,
over the cases. The Commission shall retain judgment, final order or resolution, or from the date of its
jurisdiction over pending cases involving intra- last publication, if publication is required by law for its
corporate disputes submitted for final resolution effectivity, or of the denial of petitioner's motion for new
which should be resolved within one (1) year from the trial or reconsideration duly filed in accordance with the
enactment of this Code. The Commission shall retain governing law of the court or agency a quo. Only one (1)
jurisdiction over pending suspension of motion for reconsideration shall be allowed. Upon proper
payment/rehabilitation cases filed as of 30 June 2000 motion and the payment of the full amount of the docket
until finally disposed. fee before the expiration of the reglementary period, the
Court of Appeals may grant an additional period of fifteen
The decisions of the RTC now, acting as a corporate (15) days only within which to file the petition for review.
court, is appealable to the CA under Rule 43 and not No further extension shall be granted except for the most
under Rule 41. compelling reason and in no case to exceed fifteen (15)
days. (n)
Remember, that under RA 8799 and AM No. 04-9-07-
SC, the RTC is vested with the jurisdiction now to Period to Appeal
hear and decide intra-corporate disputes4. These are
cases that originally belonged to the jurisdiction of the 1) 15 days from receipt of judgment OR order denying
SEC. But since the SEC has already been divested, the motion for reconsideration or new trial;
by RA 8799, of its quasi-judicial power, these intra- 2) Only one motion for reconsideration is allowed;
corporate disputes will now be tried in the RTC. 3) Motion for extension of time to file petition can be
granted only for 15 days after payment of required
And when the RTC acting as a corporate court fees.
decides the case involving intra-corporate disputes,
the RTC here is treated like a quasi-judicial body. And Monte: Now, the period to appeal is more or less the
therefore, the mode of appeal is Rule 43 and not Rule same as that of Rule 42. It says, “Fifteen days from receipt
41. Because, Rule 41 applies only to decisions of the of the judgment of the quasi-judicial body, OR within 15
RTC done in the exercise of its original jurisdiction. days from the order denying the motion for
reconsideration or motion for new trial.”
Now here, the RTC, when it decides a corporate case
or intra-corporate dispute, is acting as a special You are allowed only one motion for reconsideration
court; a corporate court and so, the mode of appeal under Rule 43. But you are allowed to file a motion for
is Rule 43. extension of time to file your petition, but you will be only
given 15 days’ extension after you have paid the required
Sec. 3. Where to Appeal docket fees and other lawful fees, plus deposit for costs.

SECTION 3. Where to Appeal. — An appeal under this Of course, you may be granted further extension for as
Rule may be taken to the Court of Appeals within the long as there are compelling reasons; valid and justifiable
period and in the manner herein provided, whether the reasons why you are not able to file your petition during
appeal involves questions of fact, of law, or mixed the extended period.
questions of fact and law. (n)

Where do you file your petition for review under Rule

43?
A: You file it with the CA, even on pure questions of law.

4
An intra-corporate dispute has been defined as a dispute which arises
between the stockholder and the corporation. (Philex Mining Corp. vs.
Reyes, 118 SCRA 602)

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 Sec. 5. How Appeal is Taken Monte: So the procedure is practically the same as that
of Rule 42.
SECTION 5. How Appeal Taken. — Appeal shall be
taken by filing a verified petition for review in seven (7) Sec. 7. Effect of Failure to Comply with
legible copies with the Court of Appeals, with proof of Requirements
service of a copy thereof on the adverse party and on the
court or agency a quo. The original copy of the petition SECTION 7. Effect of Failure to Comply with
intended for the Court of Appeals shall be indicated as Requirements. — The failure of the petitioner to comply
such by the petitioner. with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit
Upon the filing of the petition, the petitioner shall pay to for costs, proof of service of the petition, and the contents
the clerk of court of the Court of Appeals the docketing of and the documents which should accompany the
and other lawful fees and deposit the sum of P500.00 for petition shall be sufficient ground for the dismissal thereof.
costs. Exemption from payment of docketing and other (n)
lawful fees and the deposit for costs may be granted by
the Court of Appeals upon a verified motion setting forth What is the effect of the failure to comply with the
valid grounds therefor. If the Court of Appeals denies the requirements?
motion, the petitioner shall pay the docketing and other A: Dismissal of your petition.
lawful fees and deposit for costs within fifteen (15) days
from notice of the denial. (n) Sec. 8. Action on the Petition

How Appeal Taken SECTION 8. Action on the Petition. — The Court of

Appeals may require the respondent to file a comment on
1) Verified petition in 7 copies; the petition, not a motion to dismiss, within ten (10) days
2) Proof of service to adverse party and the court, or from notice, or dismiss the petition if it finds the same to
agency a quo5; and be patently without merit, prosecuted manifestly for delay,
3) Payment of docket fees, etc. or that the questions raised therein are too unsubstantial
to require consideration. (6a)
Sec. 6. Contents of the Petition
Now, what will be the action of the CA on the petition
SECTION 6. Contents of the Petition. — The petition for for review under Rule 43?
review shall (a) state the full names of the parties to the A: The same as that under Rule 42. Either the CA will:
case, without impleading the court or agencies either as a. Entertain your petition and require the respondent
petitioners or respondents; (b) contain a concise to file their comment; or
statement of the facts and issues involved and the b. If not, the CA may outrightly dismiss your petition
grounds relied upon for the review; (c) be accompanied if:
by a clearly legible duplicate original or a certified true 1) It is patently without merit;
copy of the award, judgment, final order or resolution 2) It is executed manifestly for delay; or
appealed from, together with certified true copies of such 3) The arguments raised therein are too
material portions of the record referred to therein and unsubstantial to warrant consideration.
other supporting papers; and (d) contain a sworn
certification against forum shopping as provided in the last Monte: So, these are three grounds to merit an outright
paragraph of Section 2, Rule 42. The petition shall state dismissal of your petition. So, just like Rule 42, your
the specific material dates showing that it was filed within petition is not a matter of right. Meaning, it’s not a matter
the period fixed herein. (2a) of right that your petition will be entertained by the CA.
The CA may throw out of the window your petition right
Contents of the Petition away without even requiring the other party to comment if
the CA feels that your petition is really, very
1) Full name of the parties; unmeritorious.
2) Concise statement of the facts, etc.;
3) Copy of the original judgment; and
4) Certificate of non-forum shopping.

5
The Latin phrase a quo means “from which”. Accordingly, the court a
quo is the court in which the matter was first heard, or the court from
which an appeal or review is being heard.

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 Sec. 9. Contents of Comment Like, for example, when you talk of DAR or DARAB. They
are experts in agricultural matters, mga agricultural
SECTION 9. Contents of Comment. — The comment disputes, dili ba? So, since they are specialized – like for
shall be filed within ten (10) days from notice in seven (7) example, the Construction Industry Adjudication
legible copies and accompanied by clearly legible certified Commission, or CIAC – they are supposed to be experts
true copies of such material portions of the record referred in the construction industry.
to therein together with other supporting papers. The
comment shall (a) point out insufficiencies or inaccuracies Usually, when the dispute is between the owner of the
in petitioner's statement of facts and issues; and (b) state building and the contractor, the contract between them
the reasons why the petition should be denied or would usually contain a provision that any dispute arising
dismissed. A copy thereof shall be served on the out of said construction contract, it shall be referred to the
petitioner, and proof of such service shall be filed with the arbitrator. And the findings of the arbitrator – which is the
Court of Appeals. (9a) CIAC – is appealable to the CA.

Contents of Comment (7 Copies) And when the CIAC decides the case – since they are
supposed to be experts on construction matters since the
Monte: Now, if the CA will require the respondent to file persons who comprise the CIAC, normally there are three
his comment, the comment of the respondent must: of them called commissioners, they are usually
engineers; civil engineers and lawyers. And so, since they
1) Point out the inaccuracies in the petition; are civil engineers, they know much about how a building
2) State the reasons why the petition be denied; and is constructed and who violated the terms. Like unsa,
3) Must be filed within 10 days. sakto ba na ang gigamit na papilit sa tiles, okay?

Sec. 10. Due Course So, if there is a controversy there, this CIAC will be the
one to decide. And the factual findings of the CIAC will be
SECTION 10. Due Course. — If upon the filing of the respected by the CA. It will not anymore be disturbed. In
comment or such other pleadings or documents as may other words, the CA will adapt the factual findings. So the
be required or allowed by the Court of Appeals or upon CA will only examine the legal issues raised, not the
the expiration of the period for the filing thereof, and on factual issues because the decision of the quasi-judicial
the basis of the petition or the records the Court of body, who is considered to be an expert, is binding on the
Appeals finds prima facie that the court or agency CA.
concerned has committed errors of fact or law that would
warrant reversal or modification of the award, judgment, Sec. 11. Transmittal of Records
final order or resolution sought to be reviewed, it may give
due course to the petition; otherwise, it shall dismiss the SECTION 11. Transmittal of Record. — Within fifteen
same. The findings of fact of the court or agency (15) days from notice that the petition has been given due
concerned, when supported by substantial evidence, course, the Court of Appeals may require the court or
shall be binding on the Court of Appeals. (n) agency concerned to transmit the original or a legible
certified true copy of the entire record of the proceeding
Due Course under review. The record to be transmitted may be
abridged by agreement of all parties to the proceeding.
Findings of fact of the court or agency concerned, when The Court of Appeals may require or permit subsequent
supported by substantial evidence, shall be binding on the correction of or addition to the record. (8a)
CA.
Monte: When the CA gives due course to a petition, it will
Doctrine of Primary Jurisdiction order the quasi-judicial bodies to immediately elevate the
records of the case to the CA for review.
Monte: Just like Rule 42, if the court finds that there is
prima facie evidence of error committed by the quasi- Sec. 12. Effect of Appeal
judicial body, it may give due course to the petition.
SECTION 12. Effect of Appeal. — The appeal shall not
However, in Rule 43, the factual findings of a quasi- stay the award, judgment, final order or resolution sought
judicial body, when supported by substantial evidence, to be reviewed unless the Court of Appeals shall direct
shall be binding on the CA. What is means is that factual otherwise upon such terms as it may deem just. (10a)
findings of a quasi-judicial body should have great weight
on the CA under the doctrine of primary jurisdiction
because this quasi-judicial body are supposed to be
experts in their respective fields.

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 Effect of Appeal RULE 44
PROCEUDRE IN THE CA FOR ORDINARY
It will not stay the award, judgment or final order sought APPEALED CASES (RULE 41)
to be reviewed unless the CA provides otherwise.
Monte: Now, let’s go to Rule 44. Rule 44 refers to the
Monte: Now, when you appeal the decision of a quasi- procedure in the CA for ordinary appeals governed by
judicial body to the CA, what will be the effect of that Rule 41. So, Rule 44 is actually related to Rule 41.
appeal? Will it prevent the execution of the judgment?
Rule 41 refers to appeal from the decision of the RTC to
Normally, when you appeal, it means that the decision is the CA on ordinary actions or special proceedings; or
not yet final so it will stay the execution of the judgment. actions that were filed in the RTC as an original action.
But in the case of petition for review under Rule 43, the
appeal under Rule 43 on the decision of a quasi-judicial Sec. 1 Title of Cases
body will not stay the award, judgment or final order
sought to be reviewed unless the CA provides otherwise. SECTION 1. Title of Cases. — In all cases appealed to
the Court of Appeals under Rule 41, the title of the case
In other words, when the quasi-judicial body decides the shall remain as it was in the court of origin, but the party
case, that decision is immediately executory. Even if the appealing the case shall be further referred to as the
losing party will appeal it to the CA, the prevailing party appellant and the adverse party as the appellee. (1a, R46)
can have it executed immediately, not unless the CA
provides otherwise. So, what are the procedures?
A: Now, when you appeal the ruling of the RTC to the CA,
And how is it done? and it involves an ordinary civil action or a case that was
A: When you appeal the ruling of a quasi-judicial body to originally filed in the RTC, the title of the case shall
the CA, you must also pray to the CA the issuance of a remain.
writ of preliminary injunction or a TRO to prevent the
immediate execution or enforcement of the decision of the Monte: Just like the appeal from the MTC to the RTC
quasi-judicial body. diba? You don’t change the caption of the case, and the
title of the case. It will remain. You just add the words
Monte: Without a TRO or preliminary injunction issued by “appellant” and “appellee”.
the CA, the decision can now be executed despite the
pendency of the appeal. Sec. 2. Counsel and Guardians

Sec. 13. Submission for Decision SECTION 2. Counsel and Guardians. — The counsel
and guardians ad litem of the parties in the court of origin
SECTION 13. Submission for Decision. — If the petition shall be respectively considered as their counsel and
is given due course, the Court of Appeals may set the guardians ad litem in the Court of Appeals. When others
case for oral argument or require the parties to submit appear or are appointed, notice thereof shall be served
memoranda within a period of fifteen (15) days from immediately on the adverse party and filed with the court.
notice. The case shall be deemed submitted for decision (2a, R46)
upon the filing of the last pleading or memorandum
required by these Rules or by the Court of Appeals. (n) GEN: Whoever appeals as counsel of a party of the
appellant or appellee, shall remain to be counsel on
Now, when does the CA decide an appeal under Rule appeal.
43?
A: The case shall be deemed submitted after both parties XPN: Unless that lawyer notified the CA immediately that
have already presented their respective memorandum, or he already ceased to become the counsel.
after the lapse of the period for them to file their
memorandum. Monte: So, if there is no notice of a change of the lawyer,
the CA has the right to presume that whoever appeared
for that party in the RTC is also the lawyer of the case on
appeal. So, all notices will be sent to that lawyer.

Sec. 3. Order of Transmittal of Record

Sec. 3. Order of Transmittal of Record. — If the original

record or the record on appeal is not transmitted to the

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Court of Appeals within thirty (30) days after the perfection mimeographed or printed brief, with proof of service of two
of the appeal, either party may file a motion with the trial (2) copies thereof upon the appellee. (10a, R46)
court, with notice to the other, for the transmittal of such
record or record on appeal. (3a, R46) Sec. 8. Appellee’s Brief

Secs. 4-13 Steps in Filing an Appeal under Rule 41 SECTION 8. Appellee's Brief. — Within forty-five (45)
days from receipt of appellant's brief, the appellee shall
Sec. 4. Docketing of the Case file with the court seven (7) copies of his legibly
typewritten, mimeographed or printed brief, with proof of
SECTION 4. Docketing of Case. — Upon receiving the service of two (2) copies thereof upon the appellant. (11a,
original record or the record on appeal and the R46)
accompanying documents and exhibits transmitted by the
lower court, as well as the proof of payment of the docket Sec. 9. Appellant’s Reply Brief
and other lawful fees, the clerk of court of the Court of
Appeals shall docket the case and notify the parties SECTION 9. Appellant's Reply Brief. — Within twenty
thereof. (4a, R46) (20) days from receipt of appellee's brief, the appellant
may file a reply brief answering points in the appellee's
Within ten (10) days from receipt of said notice, the brief not covered in his main brief. (12, R46)
appellant, in appeals by record on appeal, shall file with
the clerk of court seven (7) clearly legible copies of the Sec. 10. Time for Filing Memoranda in Special Cases
approved record on appeal, together with the proof of
service of two (2) copies thereof upon the appellee.
SECTION 10. Time for Filing Memoranda in Special
Cases. — In certiorari, prohibition, mandamus, quo
Any unauthorized alteration, omission or addition in the
warranto and habeas corpus cases, the parties shall file,
approved record on appeal shall be a ground for dismissal
in lieu of briefs, their respective memoranda within a non-
of the appeal. (n)
extendible period of thirty (30) days from receipt of the
notice issued by the clerk that all the evidence, oral and
Sec. 5. Completion of Record documentary, is already attached to the record. (13a,
R46)
SECTION 5. Completion of Record. — Where the
record of the docketed case is incomplete, the clerk of The failure of the appellant to file his memorandum within
court of the Court of Appeals shall so inform said court the period therefor may be a ground for dismissal of the
and recommend to it measures necessary to complete the appeal. (n)
record. It shall be the duty of said court to take appropriate
action towards the completion of the record within the Sec. 11. Several Appellants or Appellees or Several
shortest possible time. (n) Counsel for Each Party

Sec. 6. Dispensing with Complete Record SECTION 11. Several Appellants or Appellees or
Several Counsel for Each Party. — Where there are
SECTION 6. Dispensing with Complete Record. — several appellants or appellees, each counsel
Where the completion of the record could not be representing one or more but not all of them shall be
accomplished within a sufficient period allotted for said served with only one copy of the briefs. When several
purpose due to insuperable or extremely difficult causes, counsel represent one appellant or appellee, copies of the
the court, on its own motion or on motion of any of the brief may be served upon any of them. (14a, R46)
parties, may declare that the record and its accompanying
transcripts and exhibits so far available are sufficient to Sec. 12. Extension of Time to File Briefs
decide the issues raised in the appeal, and shall issue an
order explaining the reasons for such declaration. (n)
SECTION 12. Extension of Time for Filing Briefs. —
Extension of time for the filing of briefs will not be allowed,
Sec. 7. Appellant’s Brief except for good and sufficient cause, and only if the
motion for extension is filed before the expiration of the
SECTION 7. Appellant's Brief . — It shall be the duty of time sought to be extended. (15, R46)
the appellant to file with the court, within forty-five (45)
days from receipt of the notice of the clerk that all the
evidence, oral and documentary, are attached to the
record, seven (7) copies of his legibly typewritten,

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 Ordinary Civil Actions: Notice of Appeal must notify the RTC to forward now the records on appeal
to the CA.
Monte: Now, upon receipt of the records, the clerk of
court of the CA must immediately notify the parties, or So, the records on appeal that were already approved by
approved records on appeal must be filed within 10 days. the RTC will be forwarded to the CA for proper review.

Now, what are the steps here when the RTC decides Summary
the case and it is an ordinary civil action?
You are not happy? Just file a notice of appeal. One
paragraph. You file it with the RTC, and you pay the
docket fees. You don’t present your arguments yet why
the RTC is wrong, and why the ruling of the RTC must be
reversed by the CA. Nothing yet. Nothing. Just a notice of
appeal.

But if it’s a special proceeding, you file now a notice of

appeal AND a record on appeal. Now, a record on
appeal, as I’ve already explained to you, will present in
chronological order all the pleadings, orders (interlocutory
orders or judgments of the court which are not yet final),
AND you also discuss there the errors committed by the
court. So, it’s just like a petition for review. (Cont’d. in Sec.
Monte: So, we have the procedure: the decision or notice
5.)
of appeal shall be sent to the CA; once the CA receives
Now, when you file a notice of appeal, the clerk of court
the records, it shall immediately docket it in the records of
of the RTC will immediately complete the records and
the CA. So, it will be assigned a docket number. And then,
submit the records with the CA.
the CA will issue an order directing the appellant to file his
appellant’s brief within 45 days. The appellee may file his
So, the CA will direct the RTC to immediately forward the
brief also within 45 days from receipt of the appellant’s
records, and the clerk of court of the CA will examine if
brief. After receipt of the appellee’s brief, the appellant
the records are already complete.
may file a reply brief.
Once it is already complete, then the CA will notify both
Sec. 13. Contents of the Appellant’s Brief
parties – the appellant and the appellee – that:
1. The records are already with the CA, and
2. The appellant will now be ordered to file his SECTION 13. Contents of Appellant's Brief. — The
appellant’s brief within 45 days from receipt of appellant's brief shall contain, in the order herein
the order of the CA. indicated, the following:
And when the appellant will file the appellant’s brief with
the CA, he must furnish a copy of it to the appellee. And (a) A subject index of the matter in the brief with a digest
the appellee is also given the same period of 45 days to of the arguments and page references, and a table of
file his appellee’s brief. cases alphabetically arranged, textbooks and
statutes cited with references to the pages where they
So, in an ordinary appeal under Rule 41, if you are the are cited;
appellant, you have so much time to prepare your
arguments before the CA why the RTC has committed an (b) An assignment of errors intended to be urged, which
error, and why the decision of the RTC must be changed. errors shall be separately, distinctly and concisely
You have enough time because (1) you still have to wait stated without repetition and numbered
for the CA to order you to file your appellant’s brief, and consecutively;
(2) you still have 45 days after the order. You can even
ask for an extension to file your appellant’s brief, and you (c) Under the heading "Statement of the Case," a clear
will be given another 45 days. So maabot nakag 90 days and concise statement of the nature of the action, a
preparing your appellant’s brief. summary of the proceedings, the appealed rulings
and orders of the court, the nature of the judgment
Special Proceedings: Notice of Appeal + Record on and any other matters necessary to an understanding
Appeal of the nature of the controversy, with page references
to the record;
Monte: Now, if the appeal is not by mere notice of appeal
but also by record on appeal, the clerk of court of the CA

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(d) Under the heading "Statement of Facts," a clear and a thesis. Now you have a subject index, and then
concise statement in a narrative form of the facts assignment of errors.
admitted by both parties and of those in controversy,
together with the substance of the proof relating Subject Index
thereto in sufficient detail to make it clearly intelligible,
with page references to the record; Monte: Subject index will contain where you will find the
sub-topics, in what page you can find it in the appellant’s
(e) A clear and concise statement of the issues of fact or brief.
law to be submitted to the court for its judgment;
Assignment of Errors
(f) Under the heading "Argument," the appellant's
arguments on each assignment of error with page Monte: The first part of the appellant’s brief after the
references to the record. The authorities relied upon subject index is the assignment of errors, where you
shall be cited by the page of the report at which the enumerate what are the errors committed by the RTC
case begins and the page of the report on which the which you want the CA to look into and examine.
citation is found;
Statement of the Case
(g) Under the heading "Relief," a specification of the
order or judgment which the appellant seeks; and Monte: Then you make a statement of the case. Very
brief. In just one paragraph, what is the case all about?
(h) In cases not brought up by record on appeal, the So that the justices of the CA who will review it will
appellant's brief shall contain, as an appendix, a copy immediately know what is the case all about.
of the judgment or final order appealed from. (16a,
R46) Statement of Facts

Contents of Appellant’s Brief Monte: This is where you start telling the story. How this
controversy started, until you filed a case, until the court
Monte: Your appellant’s brief must contain the following: conducted a hearing, until the court rendered judgment.

1) Subject Index; Statement of Issues

2) Assignment of Errors;
3) Statement of the Case; Monte: So, you narrate the facts of the case and after you
4) Statement of the Facts; have narrated the facts of the case from your own point of
5) Statement of the Issues; view, you state what are the issues that you want the
6) Arguments; and appellate court to resolve.
7) Relief
Arguments
Nota Bene: A copy of the judgment appealed from must
be part of the appendix. Monte: And then, you start your discussion and
arguments. You start to discuss these issues and you
Monte: And what you will attach must be the original copy arguments in support of your contention that the trial court
that is sent to you or a certified true copy of the decision. has committed an error in trying the case.
If you will attach only a xerox copy, it will be accepted.
Relief
So, how are you going to do it? There’s only one original
copy that is given to you. Okay, you attach the original Monte: And at the end, what is the relief you are asking
copy or the CTC of the decision in the first copy that you for. What are you asking the appellate court.
mailed to the CA. Remember, there are 7 copies:
Rules
The first copy, imo nang tatakan ug “Original Copy”. The
first copy will contain the original copy of the decision. The GEN: Only error specifically assigned and properly
subsequent copies, pwede ra na xerox copies of the argued in the brief shall be considered by the court.
original copy.
XPNs:
Now, in your appellant’s brief, when you prepare it, it’s just a) Errors affecting jurisdiction;
like preparing your thesis for those who are taking b) Plain and clerical errors;
jurisprudence, taking masteral, you are required to submit

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 c) Unassigned errors closely related to or the RTC, that there’s nothing wrong with the decision of
dependent upon an assigned error, and which is the RTC.
properly argued in the brief.
Now, if the appellee should like to answer the appellant’s
Sec. 14. Contents of the Appellee’s Brief brief, then he may file his appellee’s brief.

SECTION 14. Contents of Appellee's Brief. — The The appellee’s brief shall also contain a subject index, a
appellee's brief shall contain, in the order herein counter-statement of facts – meaning, if the appellee does
indicated, the following: not agree with the way that the appellant presented the
facts of the case, because naturally, when the appellant
(a) A subject index of the matter in the brief with a digest presents the facts of the case, he will see to it that the
of the arguments and page references, and a table of narration of the facts will be to his advantage – so the
cases alphabetically arranged, textbooks, and appellee can say, “No, the presentation of facts is not
statutes cited with references to the pages where they accurate. This is the true facts of the case.” So, he will
are cited; make a counter-statement of facts.

(b) Under the heading "Statement of Facts," the appellee Then, he will make his arguments. And the arguments of
shall state that he accepts the statement of facts in the appellee are of course in support of the decision of the
the appellant's brief, or under the heading "Counter- RTC. So, the appellee – the job of the appellee’s brief is
Statement of Facts," he shall point out such to support the decisions of the RTC. The appellee cannot
insufficiencies or inaccuracies as he believes exist in make assignments of errors in his appellee’s brief. He
the appellant's statement of facts with references to cannot attack at the same time some portions of the
the pages of the record in support thereof, but without decision because his job is to support the decision.
repetition of matters in the appellant's statement of
facts; and If the appellee feels that the decision of the RTC is not
good, then he must also appeal, just like the appellant.
(c) Under the heading "Argument," the appellee shall set So, duha sila kabuok mi-apelar. Because the appellee
forth his arguments in the case on each assignment who has not appealed cannot make an assignment of
of error with page references to the record. The errors in his brief.
authorities relied on shall be cited by the page of the
report at which the case begins and the page of the Sec. 15. Questions that May Be Raised on Appeal
report on which the citation is found. (17a, R46)
SECTION 15. Questions that May Be Raised on
Contents of Appellee’s Brief Appeal. — Whether or not the appellant has filed a
motion for new trial in the court below, he may include in
1) Subject Index his assignment of errors any question of law or fact that
2) Counter-statement of Facts has been raised in the court below and which is within the
3) Arguments issues framed by the parties. (18, R46)

Note: An appellee who has not appealed cannot make Questions That May be Raised on Appeal
assignment of errors in his brief.
You may raise any question of law or fact that has been
Monte: After the appellant has filed his brief and copy- raised in the court below.
furnish the appellee, the appellee will now file his
appellee’s brief, also within the same period of 45 days.

What is the effect of the failure of the appellant to file

his appellant’s brief?
A: It will lead to the dismissal of the appeal.

Now, what about if it is the appellee who did not file

the appellee’s brief?
A: Well, it will not affect the appellee because the filing of
the appellee’s brief is not mandatory. It is optional for the
appellee. But for the appellant, that is mandatory for him.

Monte: Now, if the appellee did not file his appellee’s

brief, it simply means that he concurs with the decision of

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 RULE 45 Questions of Law Questions of Fact
Appeal by Certiorari to the Supreme Court Doubt as to what the Doubt as to the truth or
law is on certain facts falsehood of facts, or as
SECTION 1. Filing of Petition with Supreme
to probative value of the
Court.— A party desiring to appeal by certiorari from
evidence presented
a judgment or final order or resolution of the Court of
Appeals, the Sandiganbayan, the Regional Trial If the appellate court The determination
can determine the issue involves evaluation or
Court or other courts whenever authorized by law,
without reviewing or review of evidence
may file with the Supreme Court a verified petition for
evaluation the evidence
review on certiorari.The petition shall raise only
questions of law which must be distinctly set forth. Can involve questions Query involves the
(1a, 2a) of interpretation of law calibration of the whole
with respect to a certain evidence considering
set of facts mainly the credibility of
This is the only mode of appeal from the decision of the
witnesses, existence,
CA, SB, RTC, or other courts to the SC.
and relevancy of
If the RTC is in exercise of its appellate jurisdiction, specific surrounding
proper remedy is to appeal to the CA via Rule 42 even circumstances and
if only questions of law are raised. relation to each other
and the whole
SCOPE probabilities of the
1. Decisions of the CA, CTA, Sandiganbayan, and situation.
RTC;
GENERAL RULE:
QUESTION OF LAW Only question of law may be raised to the Supreme
Only question of law may be raised to the Supreme Court. The SC is not a trier or facts.
Court. Except in Writs of:
a) Amparo EXCEPTIONS:
b) Habeas Corpus, and
c) Kalikasan. 1) When conclusion is a finding grounded entirely
on speculations, surmises or conjectures.
A question of law exists when there is a 2) When inference made is manifestly mistaken,
doubt/controversy as to what the law is on a certain absurd, or impossible.
state of facts. If the test is whether the appellate court 3) When there is grave abuse of discretion in the
can determine the issue raised without reviewing or appreciation of facts.
evaluation the evidence, it is a question of law. 4) When the judgment is based on
misapprehension of facts.
What is a question of law as distinguished from a 5) When the findings of fact of the Court of
question of fact? Appeals are conflicting.
6) When the Court of Appeals went beyond the
1. Question of Fact - When the issue involves a issues of the case and the same is contrary to
determination of whether or not the facts as alleged
the admissions of both parties.
by a particular party is true or not. It involves the
7) When the CA manifestly overlooked certain
calibration of the evidence presented by the parties
relevant facts not disputed by the parties, which
to the case. Normally, the parties will differ in their
if considered would justify a different
interpretation of what are the true facts in the case. conclusion.
So the court will determine what really are the facts. 8) When the findings of fact of CA are contrary to
The court will require the parties to present
the trial court’s findings.
evidence in support of their respective claims.
The certiorari under Rule 45 is different from Rule 65:
2. Question of Law – When the fact is already
determined by the court and the court will now RULE 45 RULE 65
decide what law to apply, or after knowing what law Question of law. Grave abuse of
to apply the court gives its interpretation. If you discretion
question the decision of the court based on a fact, Mode of appeal. Review Original action and is
that is already a matter of question of law because judgments on the merit. directed on interlocutory
you are questioning whether the law applicable to orders.
the case was correctly applied by the court. Must be made within Must be filed not later
reglementary period to than 60 days from
appeal (15 days) notice of judgment

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 Appeal stays judgment, Does not stay judgment CONTENTS OF THE PETITION
award or order unless a TRO is issued
appealed from by the court SECTION 4. Contents of Petition.— The
petition shall be filed in eighteen (18) copies, with the
Petition and respondent Aggrieved party against
original copy intended for the court being indicated as
are the original parties. the lower court or quasi-
Lower court judge not to judicial agency and the such by the petitioner, and shall (a) state the full name
of the appealing party as the petitioner and the
be impleaded prevailing party
adverse party as respondent, without impleading the
Prior filing of a motion Filing of a motion for
lower courts or judges thereof either as petitioners or
for reconsideration not reconsideration is a
respondents; (b) indicate the material dates showing
required condition precedent
when notice of the judgment or final order or
Appellate court is in the Higher court exercises
resolution subject thereof was received, when a
exercise of its appellate its original jurisdiction
motion for new trial or reconsideration, if any, was
jurisdiction and power and power of control
filed and when notice of the denial thereof was
of review and supervision over
received; (c) set forth concisely a statement of the
lower court
matters involved, and the reasons or arguments
relied on for the allowance of the petition; (d) be
TIME OF FILING
accompanied by a clearly legible duplicate original, or
a certified true copy of the judgment or final order or
SECTION 2. Time for Filing; Extension.— The resolution certified by the clerk of court of the court a
petition shall be filed within fifteen (15) days from quo and the requisite number of plain copies thereof,
notice of the judgment or final order or resolution and such material portions of the record as would
appealed from, or of the denial of the petitioner's support the petition; and (e) contain a sworn
motion for new trial or reconsideration filed in due certification against forum shopping as provided in
time after notice of the judgment. On motion duly filed the last paragraph of Section 2, Rule 42. (2a)
and served, with full payment of the docket and other
CONTENTS OF THE PETITION
lawful fees and the deposit for costs before the
expiration of the reglementary period, the Supreme 1. Full name of the parties;
Court may for justifiable reasons grant an extension 2. Indicate material dates;
of thirty (30) days only within which to file the petition. 3. Set forth concisely a statement of the matters
(1a, 5a) involved, and the arguments in support of the
petition;
TIME TO FILE PETITION 4. Accompanied by original or certified true
copy (CTC) of the judgment;
1. Within 15 days from receipt of the judgment 5. Certification of non-forum shopping.
appealed from or from denial of motion for
reconsideration or new trial;
DISMISSAL OR DENIAL OF PETITION
2. Motion for extension may be granted only for 30
days. SECTION 5. Dismissal or Denial of
Petition.— The failure of the petitioner to comply with
The Neypes doctrine is also applicable to Rule 45
any of the foregoing requirements regarding the
petitions.
payment of the docket and other lawful fees, deposit
for costs, proof of service of the petition, and the
PAYMENT OF DOCKET FEE AND COST
contents of and the documents which should
SECTION 3. Docket and Other Lawful accompany the petition shall be sufficient ground for
Fees; Proof of Service of Petition.— Unless he has the dismissal thereof.
theretofore done so, the petitioner shall pay the The Supreme Court may on its own initiative
corresponding docket and other lawful fees to the deny the petition on the ground that the appeal is
clerk of court of the Supreme Court and deposit the without merit, or is prosecuted manifestly for delay, or
amount of P500.00 for costs at the time of the filing of that the questions raised therein are too unsubstantial
the petition. Proof of service of a copy thereof on the to require consideration. (3a)
lower court concerned and on the adverse party shall
be submitted together with the petition. (1a) GROUNDS FOR DISMISSAL
1. Failure to comply with the requirement
Pay with docket fee with the Supreme Court and with regarding payment of docket and other lawful
proof of service on the other party and the court. fees, and deposit for cost;
2. Failure to show proof of service;

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 3. Failure to observe contents of petition and the means that the SC affirms the decision of the lower
documents (at least the certified true copies or court.
the duplicate copies) that must accompany it.
ADDITIONAL GROUNDS
PLEADINGS AND OTHER DOCUMENTS; SANCTION
1. Appeal is without merit.
2. Prosecuted manifestly for delay. SECTION 7. Pleadings and Documents
3. Question is too unsubstantial. that May Be Required; Sanctions.— For purposes
of determining whether the petition should be
REVIEW IS DISCRETIONARY dismissed or denied pursuant to Section 5 of this
Rule, or where the petition is given due course under
SECTION 6. Review Discretionary.— A Section 8 hereof, the Supreme Court may require or
review is not a matter of right, but of sound judicial allow the filing of such pleadings, briefs, memoranda
discretion, and will be granted only when there are or documents as it may deem necessary within such
special and important reasons therefor. The periods and under such conditions as it may consider
following, while neither controlling nor fully appropriate, and impose the corresponding sanctions
measuring the court's discretion, indicate the in case of non-filing or unauthorized filing of such
character of the reasons which will be considered: pleadings and documents or non-compliance with the
conditions therefor. (n)
(a) When the court a quo has decided a
question of substance, not theretofore SANCTION
determined by the Supreme Court, or has A REPLY is not mandatory but the Supreme Court may
decided it in a way probably not in accord require or allow the petitioner to file a reply. For
with law or with the applicable decisions of example, you file a petition or appeal by certiorari to the
the Supreme Court; or SC questioning the ruling of the CA. The SC gave due
course to your petition and required the respondent to
(b) When the court a quo has so far departed give his comment or answer. After that, the SC may
from the accepted and usual course of require petitioner to file a reply to the comment. If you
judicial proceedings, or so far sanctioned don’t file a reply, it would not result to the dismissal of
such departure by a lower court, as to call the petition because a reply is not mandatory BUT if it
for an exercise of the power of supervision. is the SC who ordered you to file a reply and you
(4a) did not obey, it would lead to the dismissal of your
A review is not a matter of right, but of sound judicial appeal by certiorari. This is the sanction.
discretion, and will be granted only when there are
special and important reasons therefore.
DUE COURSE; ELEVATION OF RECORDS.
REASONS FOR THE COURT TO GRANT THE
PETITION SECTION 8. Due Course; Elevation of
Records.— If the petition is given due course, the
1. When the court a quo has decided a question Supreme Court may require the elevation of the
of substance, not theretofore determined by the complete record of the case or specified parts thereof
Supreme Court, or has decided it in a way not within fifteen (15) days from notice. (2a)
in accord with law;
2. When the court a quo has so far departed from If the court finds that indeed there are prima facie
the accepted and usual course of judicial evidence of error committed by the court a quo, the SC
proceeding as to call for an exercise of the will give due course to your petition. It will issue an order
power of supervision. giving due course to your petition and thereafter order
the CA to elevate all your records to the SC for
The court can outrightly dismiss your petition for
appropriate review.
certiorari under Rule 45 in one sentence. We call that
minute resolution. Like Rule 42, the giving of due course to your petition
does not mean that it is granted. It simply means that
General Rule - A decision of a court must contain a
the appellate court finds sufficient basis for them to
discussion on how the court arrived on the conclusion.
exercise the power of judicial review.
There should be findings of fact and a conclusion of law.
In real life, it is really difficult to have your petition
Exception: The Supreme Court, being the highest
entertained by the SC. In the COC’s office alone, there
court of the land, can outright dismiss a petition by way
is already a screening committee who will examine the
of a minute resolution. When the Court does this, it
petitions for certiorari. If a petition does not comply with

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the requirements under the law, dismiss dayun. Di na kaabot sa justices. Ma-igo ka sa technicalities.

RULE APPLICABLE TO BOTH CIVIL AND CRIMINAL CASES

SECTION 9. Rule Applicable to Both Civil and Criminal Cases.— The mode of appeal prescribed in this
Rule shall be applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment. (n)
This is the only mode of appeal to the SC EXCEPT in criminal cases where the penalty imposed by the lower court is
death, reclusion perpetua, or life imprisonment. If it is RP or life imprisonment, the decision of the trial court can be
appealed to the SC by an ordinary appeal, mere notice of appeal.
When we had death penalty before, it was an automatic review. (UP BOC 2020, pg. 141)

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 RULES 46 – 55 of the petition shall be accompanied by clearly legible
PROCEDURES IN THE COURT OF APPEALS plain copies of all documents attached to the
original. cdasia
RULE 46
The petitioner shall also submit together with
ORIGINAL CASES
the petition a sworn certification that he has not
theretofore commenced any other action involving the
PROCEDURES FILED IN THE CA AS ORIGINAL
same issues in the Supreme Court, the Court of
ACTIONS
Appeals or different divisions thereof, or any other
SECTION 1. Title of Cases.— In all cases tribunal or agency; if there is such other action or
originally filed in the Court of Appeals, the party proceeding, he must state the status of the same; and
instituting the action shall be called the petitioner and if he should thereafter learn that a similar action or
the opposing party the respondent. (1a) proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different
SECTION 2. To What Actions divisions thereof, or any other tribunal or agency, he
Applicable.— This Rule shall apply to original undertakes to promptly inform the aforesaid courts
actions for certiorari,prohibition, mandamus and quo and other tribunal or agency thereof within five (5)
warranto. days therefrom.
Except as otherwise provided, the actions for The petitioner shall pay the corresponding
annulment of judgment shall be governed by Rule 47, docket and other lawful fees to the clerk of court and
for certiorari,prohibition and mandamus by Rule 65, deposit the amount of P500.00 for costs at the time of
and for quo warranto by Rule 66. (n) the filing of the petition.
ORIGINAL ACTIONS The failure of the petitioner to comply with
1. Certiorari under Rule 65 any of the foregoing requirements shall be sufficient
2. Prohibition ground for the dismissal of the petition. (n)
3. Mandamus When the lawyers prepare a petition, they usually
4. Quo Warranto (Rule 66) prepare around 9-10 copies. Give one to your client and
5. Annulment of Judgment of the RTC (Rule 47) a copy or two for you.
When you file an original action in the CA, the parties JURISDICTION OVER PERSON OF RESPONDENT
are not called plaintiffs and defendants, they are called
petitioners and respondents. Cases that you file in the SECTION 4. Jurisdiction Over Person of
CA as an original action are always commenced by a Respondent, How Acquired. — The court shall
petition. acquire jurisdiction over the person of the respondent
by the service on him of its order or resolution
CONTENTS OF THE PETITION (7 COPIES) indicating its initial action on the petition or by his
voluntary submission to such jurisdiction. (n)
SECTION 3. Contents and Filing of
Petition; Effect of Non-Compliance with Unlike an ordinary civil action where the court issues
Requirements.— The petition shall contain the full summons, there is no summons here in Rule 46. The
names and actual addresses of all the petitioners and court acquires jurisdiction over the person of the
respondents, a concise statement of the matters respondent only from the moment the respondent
involved, the factual background of the case, and the receives the initial action of the Court of Appeals.
grounds relied upon for the relief prayed for.
What is the initial action of the CA?
It shall be filed in seven (7) clearly legible Either dismissing the case or requiring the respondent
copies together with proof of service thereof on the to answer. The CA can outright dismiss the petition
respondent with the original copy intended for the without requiring the defendant to answer.
court indicated as such by the petitioner, and shall be
accompanied by a clearly legible duplicate original or So, when you file an original action for petition for
certified true copy of the judgment, order, resolution, certiorari under Rule 65 or Petition for Mandamus or
or ruling subject thereof, such material portions of the Quo Warranto with the CA, you do not have to furnish
record as are referred to therein, and other the other party a copy of the petition. He must wait for
documents relevant or pertinent thereto. The the CA to order him to answer your petition which will
certification shall be accomplished by the proper clerk only happen if the CA finds your petition meritorious.
of court or by his duly authorized representative, or by
the proper officer of the court, tribunal, agency or
office involved or by his duly authorized
representative. The other requisite number of copies

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 ACTION BY THE COURT; COMMENT RULE 47
ANNULMENT OF JUDGMENT OR FINAL ORDERS
SECTION 5. Action by the Court.— The AND RESOLUTIONS
court may dismiss the petition outright with specific
reasons for such dismissal or require the respondent Sec 1 – Coverage
to file a comment on the same within ten (10) days
from notice. Only pleadings required by the court shall
SECTION 1. Coverage.— This Rule shall govern the
be allowed. All other pleadings and papers may be
annulment by the Court of Appeals of judgments or final
filed only with leave of court. (n)
orders and resolutions in civil actions of Regional Trial
ACTIONS: Courts for which the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies
1. Dismiss the case outright; are no longer available through no fault of the petitioner.
2. Require the respondent to comment within 10 (n)
days from receipt of notice.
The Court of Appeals may annul the judgment of the RTC
DETERMINATION OF FACTUAL ISSUES. if the remedies of new trial, appeal, petition for relief from
judgment or other remedies are no longer available
SECTION 6. Determination of Factual through no fault of the petitioner.
Issues.— Whenever necessary to resolve factual
issues, the court itself may conduct hearings thereon Monte: This is the last remedy available to a party who
or delegate the reception of the evidence on such lost the case because he was not able to present his
issues to any of its members or to an appropriate evidence – he was denied in court. This remedy is the
court, agency or office. (n) Annulment of Judgment of the RTC by the Court of
The CA may delegate the reception of evidence to the Appeals.
Regional Trial Court. This is true before when there was
only one CA in the entire country (Manila). This petition falls under the exclusive and original
jurisdiction of the Court of Appeals. It is exclusive
If the parties of the case are based in Davao City, it because you cannot file it in any other court. It is original
would be very inconvenient to go to Manila. The CA because you can commence it only in the Court of
may delegate the reception of evidence to a regional Appeals.
trial court judge in Davao. But now, since there is a CA
in Cebu, they normally do it there. CA has a courtroom It is a continuation of the remedies that were already
for times when they have to hold a hearing. provided in the Rules under Rule 9 (Declaration of
Default), Rule 37 (New Trial or Reconsideration), and
Rule 38 (Petition for Relief).
EFFECT OF FAILURE TO FILE COMMENT
Rule 9 – Declaration of Default
SECTION 7. Effect of Failure to File Comment.—
When no comment is filed by any of the respondents, If you were not able to file your Answer and thus declared
the case may be decided on the basis of the record, in default by the court – if the case is still pending, your
without prejudice to any disciplinary action which the remedy is to file a motion to lift the order of the court
court may take against the disobedient party. (n) or a motion to set aside the order of default. So that
1. Court may decide on the basis of the records; you will be given the opportunity to present your evidence.
2. Without prejudice to the imposition of disciplinary
action on the disobeying party. Rule 37 – New Trial or Reconsideration

When you learn about the case AFTER the trial court has
rendered a judgment by default, your next remedy is a
motion for new trial which you can bring within the
reglementary period of 15 days to appeal that judgment
by default.

Rule 38 – Relief from Judgments, Orders, other

Proceedings

If the 15 day period has already expired, and the judgment

of default has become final and executory, your next
remedy is a petition for relief from judgment which you

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can avail of within 60 days from knowledge of the presented a professional liar or a paid witness, or
decision but not more than 6 months from the entry presented a falsified document.
of judgment.
These are examples of intrinsic fraud. Intrinsic because
Rule 47 – Annulment of Judgment of the RTC the fraud was committed inside the proceedings where
the parties where given the opportunity to discover the
What happens if you learn about the case after 6 fraud.
months from the time the judgment has become final
and executory? What is your remedy? Extrinsic fraud is really one where a party has been
Your last remedy is Rule 47 – Annulment of Judgment prevented to know about the case.
of the RTC.
Lack of Jurisdiction
When you file an annulment of Judgment, it is necessary
to state in your petition that you were not able to avail of Lack of jurisdiction means that you did not know about the
the Petition for New Trial, or you were not able to appeal, case because the Summons was not served on you –
or avail of Petition for Relief, or other remedies through there was no valid service of Summons, so you did not
no fault of your own. know about the case.

IOW, you knew only of the case for the first time only If you were not served with Summons, the court has not
AFTER the lapse of 6 months from the time the judgment yet acquired jurisdiction over your person. The entire
becomes final and executory. proceeding will be null and void for lack of jurisdiction over
the person of the defendant.
Sec 2 – Grounds for Annulment
But if the Summons was validly served, but fraud was
SECTION 2. Grounds for Annulment.— The annulment employed, for example – the Summons was validly
may be based only on the grounds of extrinsic fraud and served by the sheriff to the secretary of the defendant.
lack of jurisdiction. The secretary connived with the plaintiff to not give the
Summons to the defendant. Thus, the defendant did not
Extrinsic fraud shall not be a valid ground if it was availed know that there was a case filed against him.
of, or could have been availed of, in a motion for new trial
or petition for relief. This is an example of extrinsic fraud – committing a
connivance with the secretary of the defendant. If there
Two (2) Grounds for Annulment: is that kind of fraud, an annulment of judgment can
1. Extrinsic Fraud still be resorted to.
2. Lack of Jurisdiction
The rules is quite specific that in annulment of judgment,
N.B. If the ground is extrinsic fraud, the petitioner must it is important for the defendant who files the petition for
allege that he failed to avail of new trial, appeal, or petition annulment of the judgment of the RTC to state that he
for relieg through no fault of his own. However, if the was not able to answer or he was not able to avail of
ground of lack of jurisdiction is also included, then there the remedy of trial, to appeal, to file a petition for relief
is no need to allege said condition precedent. (Ancheta from judgment through no fault of his own.
vs Ancheta, G.R. No. 145370 March 4 2004)
IOW, if he knew about the judgment after it was rendered
Extrinsic Fraud but before it became final – he could have availed of New
Trial. Or if he knew about the judgment after it became
Refers to the kind of fraud that was employed to prevent final but the six month period to file a petition for relief from
the party from knowing about the case, because of that judgment has already expired and he failed to file a
he was not able to file an Answer and a decision was petition for relief from judgment – he is not allowed
brought against him. anymore to file an annulment of judgment. It was his fault
because he did not avail of the available remedies, he
Intrinsic Fraud cannot say through no fault of his own.

If the fraud was committed during the trial – meaning, the Monte: If the ground is extrinsic fraud, the petitioner
defendant was informed about the case and was able to must allege that he failed to avail of new trial, appeal,
Answer, participate in the trial, present his evidence, etc. petititon for relief through no fault of his own.
But during the presentation of evidence by the plaintiff, the HOWEVER, if the ground is lack of jurisdiction, there
latter employed fraud or deceit. For example, plaintiff is no need for you to state that you were not able to
avail of new trial, appeal, or petition for relief from

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judgment through no fault of his own. This is ruled in Rule 46 Rule 47
the case of Ancheta vs Ancheta. No issuance of Summons The Court of Appeals
issues Summons
ANCHETA VS ANCHETA, G.R. NO. 145370 MARCH 4
2004 The court acquires The Court of Appeals
Monte: If the ground is lack of jurisdiction, the entire jurisdiction the moment acquires jurisdiction by
proceeding is really null and void. Since it is null and void, the respondent receives the service of Summons
it is as if there was no decision rendered by the court. It is the initial action of the
not anymore necessary to state that you were not able to court, either:
avail of the available remedies through no fault of your 1. Court dismisses
own. the case
2. Court requires the
COOMBS VS CASTANEDA respondent to file
GR NO 192353 MARCH 15 2017 his Comment
A judgment ordering a reconstitution of title is null and
void if the title is not really lost but in the possession of the Sec 6 – Procedure
rightful owner. If the title was not lost, the RTC does not
have jurisdiction to grant the reconstitution of title. Thus, SECTION 6. Procedure.— The procedure in ordinary
the judgment of the court ordering reconstitution can be civil cases shall be observed. Should a trial be necessary,
assailed by Annulment of Judgment under Rule 47 on the the reception of the evidence may be referred to a
ground of lack of jurisdiction and there is no need any member of the court or a judge of a Regional Trial Court.
more to state in the petition that petitioner failed to avail
of appeal, petition for relief, etc., through no fault of his Monte: The procedure after that will be the same as an
own. ordinary civil action.

Sec 5 – Action by the Court Effect of Judgment

SECTION 5. Action by the Court.— Should the court SECTION 7. Effect of Judgment.— A judgment of
find no substantial merit in the petition, the same may be annulment shall set aside the questioned judgment or
dismissed o c ccutright with specific reasons for such final order or resolution and render the same null and
dismissal. void, without prejudice to the original action being refiled
in the proper court. However, where the judgment or final
Should prima facie merit be found in the petition, the same order or resolution is set aside on the ground of extrinsic
shall be given due course and summons shall be served fraud, the court may on motion order the trial court to try
on the respondent. the case as if a timely motion for new trial had been
granted therein. (n)
Monte: The court can outrightly dismiss your petition if it
finds your petition to be patently without merit or What will be the effect if the court grants the
prosecuted manifestly for delay. If the court finds that your annulment of the judgment?
petition to annul the judgment of the RTC is really It depends on the ground:
unmeritorious, it can dismiss the case right away. If it finds
that there is merit to your petition, it will issue summons (a) Lack of jurisdiction – judgment is set aside
and it will be served on the respondent for the respondent without prejudice to refiling of the case
to file his Answer. That is when the court acquires If the defendant is able to prove that he was really
jurisdiction over the respondent. not served with Summons, the entire
proceeding will be null and void but it will not
Take note that this is different from Rule 46. In Rule 46, prevent the plaintiff from refiling the case.
there is no Summons. In Rule 47, there is an issuance This time, he must see to it that the sheriff will
of Summons. serve the Summons properly on the defendant.

In Rule 46, the court acquires jurisdiction the moment the (b) Extrinsic fraud – trial de novo, as if a timely
respondent receives the initial action of the court and the motion for new trial is filed
initial action of the court is either to dismiss or to require The judgment will be vacated and it is as if a new
him to comment. In Rule 47, the Court of Appeals will trial is granted by the court. There will be a trial
issue Summons and it will be served on the defendant. de novo as if a timely motion for new trial is filed.
The defendant will now be required to file his Answer to The defendant will be allowed to file his Answer
the petition for annulment. and present his evidence.

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 Sec 3 – Period for Filing Action Section 8 – Suspension of Prescriptive Period

SECTION 3. Period for Filing Action.— If based on SECTION 8. Suspension of Prescriptive Period. — The
extrinsic fraud, the action must be filed within four (4) prescriptive period for the refiling of the aforesaid original
years from its discovery; and if based on lack of action shall be deemed suspended from the filing of such
jurisdiction, before it is barred by laches or estoppel. original action until the finality of the judgment of
annulment. However, the prescriptive period shall not be
Monte: HOWEVER, there is a prescriptive period of filing suspended where the extrinsic fraud is attributable to the
the action for annulment of judgment: plaintiff in the original action.
(a) Extrinsic fraud – 4 years from discovery of fraud
(b) Lack of jurisdiction – before it is barred by laches The prescriptive period is suspended when you file a
or estoppel petition for annulment of judgment. If the court grants the
petition and the basis is lack of jurisdiction, the plaintiff
Monte: In the case of Tijam vs Sibonghanoy, the court can still refile the cases. However, if the basis of the
applied the principle of laches in the issue of lack of annulment is due to intrinsic fraud, the court will allow trial
jurisdiction. de novo.

Sec 4 – Filing and Contents of Petition Except: If the extrinsic fraud is attributable to the plaintiff
in the original action – If the extrinsic fraud was committed
SECTION 4. Filing and Contents of Petition.— The by the plaintiff, the suspension of the prescriptive period
action shall be commenced by filing a verified petition will not apply.
alleging therein with particularity the facts and the law
relied upon for annulment, as well as those supporting the Sec 9 – Relief
petitioner's good and substantial cause of action or
defense, as the case may be. SECTION 9. Relief Available.— The judgment of
annulment may include the award of damages, attorney's
The petition shall be filed in seven (7) clearly legible fees and other relief.
copies, together with sufficient copies corresponding to
the number of respondents. A certified true copy of the If the questioned judgment or final order or resolution had
judgment or final order or resolution shall be attached to already been executed, the court may issue such orders
the original copy of the petition intended for the court and of restitution or other relief as justice and equity may
indicated as such by the petitioner. warrant under the circumstances. (n)

The petitioner shall also submit together with the petition Judgment may include awards of damages, attorney’s
affidavits of witnesses or documents supporting the cause fees and other reliefs and order of restitution.
of action or defense and a sworn certification that he has
not theretofore commenced any other action involving the Sec 10 – Annulment of Judgment of MTC
same issues in the Supreme Court, the Court of Appeals
or different divisions thereof, or any other tribunal or SECTION 10. Annulment of Judgments or Final
agency; if there is such other action or proceeding, he Orders of Municipal Trial Courts.— An action to annul
must state the status of the same, and if he should a judgment or final order of a Municipal Trial Court shall
thereafter learn that a similar action or proceeding has be filed in the Regional Trial Court having jurisdiction over
been filed or is pending before the Supreme Court, the the former. It shall be treated as an ordinary civil action
Court of Appeals, or different divisions thereof, or any and Sections 2, 3, 4, 7, 8 and 9 of this Rule shall be
other tribunal or agency, he undertakes to promptly inform applicable thereto.
the aforesaid courts and other tribunal or agency thereof
within five (5) days therefrom. Annulment of judgment under Rule 47 refers to annulment
of judgment of the RTC and you file it with the Court of
Contents of a Petition for Annulment of Judgment Appeals. This rule will likewise apply to judgments of
1. Verified petition in 7 copies the Municipal Trial Courts (MTC). So you will file it to
2. Affidavits of witnesses or documents the next higher court which is the RTC.
3. Certification of non-forum shopping
If the judgment of the MTC is already final and the period
to file a petition for relief of judgment has already expired,
you can still have the judgment of the MTC vacated by
filing a petition for annulment of judgment before the RTC.
You apply the same procedure in Rule 47.

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 RULE 48 RULE 49
PRELIMINARY CONFERENCE ORAL ARGUMENT

Sec 1 – Preliminary Conference: Purpose Sec 1 – When Allowed

SECTION 1. Preliminary Conference.— At any time SECTION 1. When Allowed.— At its own instance or
during the pendency of a case, the court may call the upon motion of a party, the court may hear the parties in
parties and their counsel to a preliminary conference: oral argument on the merits of a case, or on any material
(a) To consider the possibility of an amicable settlement, incident in connection therewith.
except when the case is not allowed by law to be
compromised; The oral argument shall be limited to such matters as the
(b) To define, simplify and clarify the issues for court may specify in its order or resolution.
determination;
(c) To formulate stipulations of facts and admissions of Oral arguments before the CA seldom happen. But it is
documentary exhibits, limit the number of witnesses to be allowed. A case pending in the CA can have oral
presented in cases falling within the original jurisdiction of argument:
the court, or those within its appellate jurisdiction where a 1. Upon motion of a party for oral argument
motion for new trial is granted on the ground of newly 2. Upon court’s own volition
discovered evidence; and
(d) To take up such other matters which may aid the court Monte: But as I have said this seldom happens. Usually,
in the prompt disposition of the case. (Rule 7, CA Internal the CA will just require the parties there Memorandum.
Rules) But if the case is celebrated, the justices may like to listen
to the oral arguments – especially if the appearing
Monte: Rule 48 refers to original actions and even counsels of both parties are what we call as “de
appealed actions that is filed in the Court of Appeals. campanilla”. The justices may like to hear them argue
Cases that are tried in the CA (especially original actions) orally. They will schedule an oral argument.
will undergo preliminary conference. This is similar to Pre-
Trial in the RTC or MTC. Sec 2 – Conduct of Oral Argument

Purpose: SECTION 2. Conduct of Oral Argument.— Unless

1. Consider possibility of settlement authorized by the court, only one counsel may argue for
2. Define and simplify issues a party. The duration allowed for each party, the
3. Stipulation of facts sequence of the argumentation, and all other related
4. Such other matter for prompt disposition of case matters shall be as directed by the court. (n)

Monte: The proceedings in a preliminary conference If the party is represented by many counsel, only one of
conducted before the CA shall be confidential and should the counsel can orally argue the speak. That person is
be on record. It has a binding effect on the parties. called the lead counsel.

Sec 2 – Record of Conference (Resolution) Sec 3 – No Hearing or Oral Argument for Motions

SECTION 2. Record of the Conference.— The SECTION 3. No Hearing or Oral Argument for
proceedings at such conference shall be recorded and, Motions.— Motions shall not be set for hearing and,
upon the conclusion thereof, a resolution shall be issued unless the court otherwise directs, no hearing or oral
embodying all the actions taken therein, the stipulations argument shall be allowed in support thereof. The
and admissions made, and the issues defined. adverse party may file objections to the motion within five
(5) days from service, upon the expiration of which such
Sec 3 – Binding Effect of the Result of Conference motion shall be deemed submitted for resolution.

SECTION 3. Binding Effect of the Results of the There is no hearing of a motion or oral argument. Under
Conference.— Subject to such modifications which may the 2019 Amendments, motions are no longer set for
be made to prevent manifest injustice, the resolution in hearings unlike before where a motion must be set for
the preceding section shall control the subsequent hearing, but that is only true for trial courts. In the
proceedings in the case unless, within five (5) days from appellate court (in the CA and SC), you do not set it for
notice thereof, any party shall satisfactorily show valid hearing because the court will not hear a motion.
cause why the same should not be followed. (n)

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 RULE 50
Dismissal of Appeal 3. Failure to pay docket and other lawful fees;

Sec 1 – Grounds for Dismissal 4. Unauthorized alterations, omissions, or

additions in the approved record on appeal;
SECTION 1. Grounds for Dismissal of Appeal.— An
appeal may be dismissed by the Court of Appeals, on its 5. Failure of the appellant to serve and file the
own motion or on that of the appellee, on the following required number of copies of his brief;
grounds: You need to present 7 copies.
6. Absence of specific assignment of errors in the
(a) Failure of the record on appeal to show on its face appellant’s brief;
that the appeal was taken within the period fixed by
these Rules; 7. Failure of the appellant to take the necessary
steps for the correction or completion of the
(b) Failure to file the notice of appeal or the record on record within time;
appeal within the period prescribed by these Rules;
8. Failure of appellant to appear at the preliminary
(c) Failure of the appellant to pay the docket and other conference or to comply with the orders of the
lawful fees as provided in Section 4 of Rule 41; court

(d) Unauthorized alterations, omissions or additions in 9. The fact that the order is not appealable
the approved record on appeal as provided in Section
4 of Rule 44; Monte: Please take note however that these grounds for
the dismissal of the appeal are not all mandatory. Most of
(e) Failure of the appellant to serve and file the required them are directory. It is not a ministerial job of the CA to
number of copies of his brief or memorandum within dismiss the appeal if these grounds exist. The only one
the time provided by these Rules; that is mandatory is the failure to file a notice of appeal
on time or failure to file the records on appeal on time.
(f) Absence of specific assignment of errors in the The appellate court is very strict in your compliance of the
appellant's brief, or of page references to the record reglementary period to perfect your appeal.
as required in Section 13, paragraphs (a),(c),(d) and
(f) of Rule 44; The other grounds can be excused, like unauthorized
alterations, omissions, or additions in the approved record
(g) Failure of the appellant to take the necessary steps on appeal.
for the correction or completion of the record within
the time limited by the court in its order; If it is an appeal by records on appeal, you file that with
the RTC because it is subject to the approval of the RTC.
(h) Failure of the appellant to appear at the preliminary Once the RTC approves the records on appeal, the latter
conference under Rule 48 or to comply with orders, will be forwarded to the CA for you. If the CA discovers
circulars, or directives of the court without justifiable that there are unauthorized alterations in the records on
cause; and appeal after it has been approved by the RTC, that would
be a sign of cheating on the part of the appellant or
(i) The fact that the order or judgment appealed from is petitioner. That can be a ground for dismissal of your
not appealable. (1a) appeal, but that is not mandatory. The court can excuse if
you can give explanation. If it is an honest alteration, the
Grounds for dismissal: court may not dismiss your appeal.

1. Failure of the record on appeal to show on its Another one is the specific assignment of errors in the
face that it was taken on time; appellant’s brief or a failure of the appellant to take the
If it is a special proceeding or a case which involves necessary steps for the correction or completion of the
multiple appeals, the appeal should by Records of record within time. IOW, not all of these grounds are
Appeal. The Records on Appeal must show on its mandatory – most of them are directory.
face that it was filed on time. Failure to state that is
fatal to your appeal.

2. Failure to file notice of appeal or the record on

appeal on time;
This is mandatory.

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 Sec 2 – Dismissal of Improper Appeal RULE 51
JUDGMENT
SECTION 2. Dismissal of Improper Appeal to the
Court of Appeals.— An appeal under Rule 41 taken from Sec 1 – When Submitted for Judgment
the Regional Trial Court to the Court of Appeals raising
only questions of law shall be dismissed, issues purely of SECTION 1. When Case Deemed Submitted for
law not being reviewable by said court. Similarly, an Judgment.— A case shall be deemed submitted for
appeal by notice of appeal instead of by petition for review judgment:
from the appellate judgment of a Regional Trial Court
shall be dismissed. (n) A. In ordinary appeals. —
1) Where no hearing on the merits of the main case is
An appeal erroneously taken to the Court of Appeals shall held, upon the filing of the last pleading, brief, or
not be transferred to the appropriate court but shall be memorandum required by the Rules or by the court itself,
dismissed outright. or the expiration of the period for its filing.
2) Where such a hearing is held, upon its termination or
1. Appeal from RTC to CA on pure question of law upon the filing of the last pleading or memorandum as
2. Appeal by notice of appeal instead of petition for may be required or permitted to be filed by the court, or
review under Rule 42 from RTC to CA the expiration of the period for its filing.

Monte: If the appeal is considered an improper appeal, B. In original actions and petitions for review. —
the appellate court will have to dismiss it. 1) Where no comment is filed, upon the expiration of the
period to comment.
Example: If you file an Ordinary Appeal from the decision 2) Where no hearing is held, upon the filing of the last
of the RTC, you will appeal that to the CA. However, if you pleading required or permitted to be filed by the court, or
only raise pure questions of law, you cannot appeal to the the expiration of the period for its filing.
Court of Appeals for pure questions of law. You go directly 3) Where a hearing on the merits of the main case is held,
to the Supreme Court by way of a petition for certiorari upon its termination or upon the filing of the last pleading
under Rule 45. or memorandum as may be required or permitted to be
filed by the court, or the expiration of the period for its
If it is a Petition for Review under Rule 42 or Rule 43, you filing.
can raise pure questions of law. In an Ordinary Appeal
governed by Rule 41, you have to go to the Supreme Monte: This refers to judgments rendered by the Court of
Court. If you appeal it to the CA, the CA will dismiss it. Appeals.

Or, you appeal the case to the SC but it is not on pure When is a case deemed submitted for judgment in the
questions of law. You mixed it with questions of fact. The Court of Appeals?
SC will surely dismiss it. (a) Ordinary Appeal – upon the submission of the last
pleading.
Unlike before, in the 1964 Rules – the appellate court will What is the last pleading? Normally you file your
not dismiss it. The appellate court to whom you filed that appellant’s brief. The appellee will also file his
wrong mode of appeal will just refer it to the proper court. appellee’s brief. Normally, the appellee’s brief is
Now, the rule is different. If it is an improper appeal, the the last pleading. If the appellant desires to file a
court will dismiss it. Reply Brief, the latter is the last pleading.

Sec 3 – Withdrawal of Appeal If the court, in addition to their brief, require them
to submit memoranda, then the last pleading is
SECTION 3. Withdrawal of Appeal.— An appeal may be the Memoranda. Or upon the lapse of the period
withdrawn as of right at any time before the filing of the to submit the Memoranda and no Memoranda
appellee's brief. Thereafter, the withdrawal may be was filed.
allowed in the discretion of the court.
(b) Original Actions – The same rule applies in
Can you withdraw the appeal that you have already original actions.
filed?
(a) Matter of Right – before appellee’s brief is filed
(b) Discretionary – after filing of appellee’s brief

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 Sec 2 – By whom Rendered Division but only majority. That is the quorum and
voting in the Division.
SECTION 2. By Whom Rendered. — The judgment shall
be rendered by the members of the court who participated Sec 4 – Disposition of a case: Affirm, reverse
in the deliberation on the merits of the case before its modidfy
assignment to a member for the writing of the decision.
(n) SECTION 4. Disposition of a Case.— The Court of
Appeals, in the exercise of its appellate jurisdiction, may
Monte: In the Court of Appeals, the case that you affirm, reverse, or modify the judgment or final order
appealed to the CA or even an original case you filed with appealed from, and may direct a new trial or further
the CA shall be decided by only three justices. It will be proceedings to be had.
raffled to a Division.
Monte: If it is an appealed case, the CA will review the
Sec 3 – Quorum and Voting: Unanimous decision of the RTC. The decision of the CA will be either
to affirm, reverse or modify.
SECTION 3. Quorum and Voting in the Court. — The
participation of all three Justices of a division shall be Sec 5 – Form and Contents of Decision
necessary at the deliberation and the unanimous vote of
the three Justices shall be required for the SECTION 5. Form of Decision. — Every decision or final
pronouncement of a judgment or final resolution. If the resolution of the court in appealed cases shall clearly and
three Justices do not reach a unanimous vote, the clerk distinctly state the findings of fact and the conclusions of
shall enter the votes of the dissenting Justices in the law on which it is based, which may be contained in the
record. Thereafter, the Chairman of the division shall refer decision or final resolution itself, or adopted from those
the case, together with the minutes of the deliberation, to set forth in the decision, order, or resolution appealed
the Presiding Justice who shall designate two Justices from. (Sec. 40, BP Blg. 129) (n)
chosen by raffle from among all the other members of the
court to sit temporarily with them, forming a special What is the form and contents of the decision of the
division of five Justices. The participation of all the five Court of Appeals?
members of the special division shall be necessary for the The decision of the CA must have to comply with the
deliberation required in Section 2 of this Rule and the requirements that it must state the facts, and the
concurrence of a majority of such division shall be conclusions of law. There must be a discussion as to what
required for the pronouncement of a judgment or final are the findings of fact of the CA and what is the
resolution. (2a) conclusion of law.

Monte: If the case is assigned to a Division, it will be The CA, unlike the SC, cannot make a minute
decided by the three justices of that Division. Their resolution of dismissing the appeal.
decision must be unanimous. All of them must agree.
Exception: Petition for Review under Rule 42 and 43
If they have agreed already, they will assign it to any of The CA can outrightly dismiss the petition. But if it is an
them to write down the decision – the ponente. The two ordinary appealed case in accordance with Rule 41, the
others will just concur. CA will have to discuss the merits of the case.

Special Division Sec 6 – Harmless Error

If they cannot have a unanimous decision, if one of the SECTION 6. Harmless Error.— No error in either the
three will dissent, then the matter will be referred to the admission or the exclusion of evidence and no error or
executive justice – the head of the Court of Appeals. He defect in any ruling or order or in anything done or omitted
will pick out two other justices from other Divisions to join by the trial court or by any of the parties is ground for
the three justices of that Division. granting a new trial or for setting aside, modifying, or
otherwise disturbing a judgment or order, unless refusal
Example: The 18th Division did not attain a uninamous to take such action appears to the court inconsistent with
decision. The Executive Justice will pick out two justices substantial justice. The court at every stage of the
from the 19th and 20th Division to join the three justices of proceeding must disregard any error or defect which does
the 18th Division. They will form a special division of five. not affect the substantial rights of the parties. (5a)
They will again deliberate on the case and the decision
will come out if a majority of the 5 will agree. Three out of Harmless errors – those that does not affect the
five is okay. Unanimity is not required in Special substantial rights of the parties

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Monte: Harmless errors will be disregarded. Sec 9 – Promulgation and Notice of Judgment

Sec 7 – Judgment if Several Parties SECTION 9. Promulgation and Notice of Judgment.—

(Partial Judgment) After the judgment or final resolution and dissenting or
separate opinions, if any, are signed by the Justices
SECTION 7. Judgment Where There are Several taking part, they shall be delivered for filing to the clerk
Parties.— In all actions or proceedings, an appealed who shall indicate thereon the date of promulgation and
judgment may be affirmed as to some of the appellants, cause true copies thereof to be served upon the parties
and reversed as to others, and the case shall thereafter or their counsel.
be proceeded with, so far as necessary, as if separate
actions had been begun and prosecuted; and execution Monte: The promulgation refers to the time that the three
of the judgment of affirmance may be had accordingly, justices of the CA will sign the decision. Thereafter, it will
and costs may be adjudged in such cases, as the court be given to the COC. The COC upon receipt of the
shall deem proper. (6) decision on that same day is considered to be the
promulgation of judgment. The COC will enter it in the
Monte: The CA can make a partial judgment if there are face of its decision – naa na sa upper right hand corner of
several parties. It may rule in favor of some. It may rule the decision. The date of promulgation is indicated – that
against the others. is the day that the decision was delivered to the COC.

Sec 8 – Questions that may be decided The COC upon receipt of the decision will immediately
notify the parties. She will send copies of the decision to
SECTION 8. Questions that May Be Decided. — No the parties.
error which does not affect the jurisdiction over the subject
matter or the validity of the judgment appealed from or the Sec 10 – Entry of Judgments and Final Resolutions
proceedings therein will be considered unless stated in
the assignment of errors, or closely related to or SECTION 10. Entry of Judgments and Final
dependent on an assigned error and properly argued in Resolutions.— If no appeal or motion for new trial or
the brief, save as the court may pass upon plain errors reconsideration is filed within the time provided in these
and clerical errors. (7a) Rules, the judgment or final resolution shall forthwith be
entered by the clerk in the book of entries of judgments.
What are the questions that may be decided by the The date when the judgment or final resolution becomes
Court of Appeals? executory shall be deemed as the date of its entry. The
Only those errors stated in the assignment of errors; record shall contain the dispositive part of the judgment
or final resolution and shall be signed by the clerk, with a
General Rule: No issues or errors can be discussed by certificate that such judgment or final resolution has
the CA if they were not mentioned in the assignment of become final and executory. (2a, R36)
errors.
Sec 11 – Execution of Judgment
Exceptions:
(a) Those closely related to or dependent on an SECTION 11. Execution of Judgment.— Except where
assigned error; the judgment or final order or resolution, or a portion
(b) Plain errors and clerical errors; thereof, is ordered to be immediately executory, the
(c) Error affecting jurisdiction over the matter or the motion for its execution may only be filed in the proper
validity of judgment court after its entry.

SUMMARY In original actions in the Court of Appeals, its writ of

1. Only those errors stated in the assignment of errors; execution shall be accompanied by a certified true copy
2. Those closely related to or dependent on an of the entry of judgment or final resolution and addressed
assigned error; to any appropriate officer for its enforcement.
3. Plain errors and clerical errors;
4. Error affecting jurisdiction over the matter or the In appealed cases, where the motion for execution
validity of judgment 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

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such court of origin to issue the proper writ for its The pendency of motion for reconsideration shall stay the
enforcement. execution of the judgment unless the court, for good
reasons, shall otherwise direct.
How is the judgment of the Court of Appeals
executed? Monte: The filing of an MR shall stay the execution of the
1. Appealed cases – it shall be executed by the decision of the CA.
court a quo
2. Original action – the CA will issue the writ with RULE 53
the entry of judgment NEW TRIAL
3. Execution pending appeal – the same rule
applies in an original action Sec 1 – Period for Filing

RULE 52 SECTION 1. Period for Filing; Ground. — At any time

MOTION FOR RECONSIDERATION after the appeal from the lower court has been perfected
and before the Court of Appeals loses jurisdiction over the
Sec 1 – Period of Filing case, a party may file a motion for a new trial on the
ground of newly discovered evidence which could not
SECTION 1. Period for Filing.— A party may file a have been discovered prior to the trial in the court below
motion for reconsideration of a judgment or final by the exercise of due diligence and which is of such a
resolution within fifteen (15) days from notice thereof, with character as would probably change the result. The
proof of service on the adverse party. (n) motion shall be accompanied by affidavits showing the
facts constituting the grounds therefor and the newly
When to File – 15 days discovered evidence. (1a)

Monte: After the Court of Appeals renders its decision, Can you file a motion for new trial before the Court of
that decision can still be subject to a Motion for Appeals?
Reconsideration. The losing party may still file an MR. He YES.
can do that within 15 days.
When to File
Sec 2 – Second Motion for Reconsideration
At any time after the appeal from the lower court has been
SECTION 2. Second Motion for Reconsideration.— No perfected and before the Court of Appeals loses
second motion for reconsideration of a judgment or final jurisdiction over the case.
resolution by the same party shall be entertained. (n)
Grounds
Monte: No second motion for reconsideration.
Newly discovered evidence
Sec 3 – Resolution of Motion
Monte: For Motion for New Trial under Rule 53, there is
only one ground – newly discovered evidence. The
SECTION 3. Resolution of Motion.— In the Court of
ground of FAME is not available in the CA.
Appeals, a motion for reconsideration shall be resolved
within ninety (90) days from the date when the court
Sections 2-4
declares it submitted for resolution. (n)
SECTION 2. Hearing and Order.— The Court of Appeals
Monte: When an MR is filed, it must be resolved by the
shall consider the new evidence together with that
CA within a period of 90 days
adduced at the trial below, and may grant or refuse a new
trial, or may make such order, with notice to both parties,
Sec 4 – Stay of Execution
as to the taking of further testimony, either orally in court,
or by depositions, or render such other judgment as ought
SECTION 4. Stay of Execution.— The pendency of a to be rendered upon such terms as it may deem just. (2a)
motion for reconsideration filed on time and by the proper
party shall stay the execution of the judgment or final SECTION 3. Resolution of Motion.— In the Court of
resolution sought to be reconsidered unless the court, for Appeals, a motion for new trial shall be resolved within
good reasons, shall otherwise direct. (n) ninety (90) days from the date when the court declares it
submitted for resolution. (n)

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SECTION 4. Procedure in New Trial.— Unless the court RULE 55
otherwise directs, the procedure in the new trial shall be PUBLICATION OF JUDGMENTS AND FINAL
the same as that granted by a Regional Trial Court. (3a) RESOLUTIONS

Sec 1 - Publication

Monte: If you file a Motion for New Trial in the CA, there SECTION 1. Publication.— The judgments and final
will be a hearing conducted and the procedure will be resolutions of the court shall be published in the Official
the same as that of a Motion for New Trial before the Gazette and in the Reports officially authorized by the
RTC. The Court of Appeals shall have to decide the MNT court in the language in which they have been originally
within 90 days. written, together with the syllabi therefor prepared by the
reporter in consultation with the writers thereof.
RULE 54 Memoranda of all other judgments and final resolutions
INTERNAL BUSINESS not so published shall be made by the reporter and
published in the Official Gazette and the authorized
Sec 1 – Distribution of Cases among Divisions reports. (1a)

SECTION 1. Distribution of Cases Among Divisions.— Monte: Decision of the CA shall be published.
All the cases of the Court of Appeals shall be allotted
among the different divisions thereof for hearing and Where published:
decision. The Court of Appeals, sitting en banc, shall (a) Official Gazette
make proper orders or rules to govern the allotment of (b) Court of Appeals Report
cases among the different divisions, the constitution of
such divisions, the regular rotation of Justices among Sec 2 – Preparation of Opinions for Publication
them, the filling of vacancies occurring therein, and other
matters relating to the business of the court; and such SECTION 2. Preparation of Opinions for Publication.
rules shall continue in force until repealed or altered by it — The reporter shall prepare and publish with each
or by the Supreme Court. (1a) reported judgment and final resolution a concise synopsis
of the facts necessary for a clear understanding of the
How cases are distributed: case, the names of counsel, the material and controverted
(a) By raffle to the different divisions points involved, the authorities cited therein, and a
(b) Decide en banc or in division syllabus which shall be confined to points of law. (Sec.
22a, R.A. No. 296) (n)
Monte: But actually, the CA will not decide En Banc when
it comes to judicial matters. The CA will only decide En Preparation of syllabus by reporter
Banc regarding administrative matters. It shall be presented in a Court of Appeals Report in
syllabus form by a reporter. The decision will be
Sec2 – Quorum of the Court summarized and the gist of the decision is the one that
will appear there.
SECTION 2. Quorum of the Court.— A majority of the
actual members of the court shall constitute a quorum for Sec 3 – General Make-Up of Volumes
its sessions en banc.Three members shall constitute a
quorum for the sessions of a division. The affirmative SECTION 3. General Make-Up of Volumes. — The
votes of the majority of the members present shall be published decisions and final resolutions of the Supreme
necessary to pass a resolution of the court en banc. The Court shall be called "Philippine Reports," while those of
affirmative votes of three members of a division shall be the Court of Appeals shall be known as the "Court of
necessary for the pronouncement of a judgment or final Appeals Reports." Each volume thereof shall contain a
resolution, which shall be reached in consultation before table of the cases reported and the cases cited in the
the writing of the opinion by any member of the division. opinions, with a complete alphabetical index of the subject
(Sec. 11, first par. of BP Blg. 129, as amended by Sec. 6 maters of the volume. It shall consist of not less than
of EO 33). (3a) seven hundred pages printed upon good paper, well
bound and numbered consecutively in the order of the
Quorum of the Court volumes published. (Sec. 23a, R.A. No. 296) (n)
(a) Majority – if En Banc
(b) Unaninmous – if in Division

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 PROCEDURE IN THE SUPREME COURT 3. 18 copies of the petition shall be filed in the
RULE 56 Supreme Court
4. Proceedings for disciplinary action against judges
A. Original Cases and lawyers shall be governed by the Code of
Judicial Conduct and Rule 139-B.
Sec 1 – Original Cases Cognizable
Monte: If you want to file a case against the judge, you
SECTION 1. Original Cases Cognizable.— Only file it to the CA. If you want to file a case against a lawyer
petitions for certiorari,prohibition, mandamus,quo for disbarment, you can file it to the SC or the IBP.
warranto,habeas corpus,disciplinary proceedings against
members of the judiciary and attorneys, and cases Normally, if you file it with the SC, the SC will refer it to
affecting ambassadors, other public ministers and the IBP. In the IBP, we have the Committee on Bar
consuls may be filed originally in the Supreme Court. (n) Discipline (IBP-CBD). The IBP is the one who wil conduct
the hearing. The hearing officer of the IBP will make a
Monte: There ae two kinds of cases that the Supreme recommendation. It will be approved by the Board of
Court can entertain: Governors of the IBP.
(1) Those cases that belong to its original jurisdiction
and Once the BOG decides the disbarment case, whether the
(2) Appealed cases. lawyer be disbarred, suspended, or acquitted of the
charges, it will be reviewed by the SC.
Original Cases Cognizable:
1. Certiorari, Prohibition, Mandamus, Quo Warranto B. Appealed Cases
and Habeas Corpus;
2. Disciplinary proceedings against judges and Sec 3 – Mode of Appeal
lawyers
3. Cases affecting ambassadors, other public SECTION 3. Mode of Appeal.— An appeal to the
ministers and consuls Supreme Court may be taken only by a petition for review
on certiorari,except in criminal cases where the penalty
Sec 2 – Rules Applicable imposed is death, reclusion perpetua or life imprisonment.

SECTION 2. Rules Applicable.— The procedure in A case can be appealed to the SC only by a Petition for
original cases for certiorari,prohibition, mandamus,quo Review on Certiorari under Rule 45.
warranto and habeas corpus shall be in accordance with
the applicable provisions of the Constitution, laws, and Exception: Criminal cases where the penalty imposed
Rules 46, 48, 49, 51, 52 and this Rule, subject to the is death or reclusion perpetua and life imprisonment.
following provisions: In which case, an ordinary appeal shall be made or in
a) All references in said Rules to the Court of Appeals case of death, automatic review or appeal.
shall be understood to also apply to the Supreme Court;
b) The portions of said Rules dealing strictly with and Sec 4 - Procedure
specifically intended for appealed cases in the Court of
Appeals shall not be applicable; and SECTION 4. Procedure. — The appeal shall be
c) Eighteen (18) clearly legible copies of the petition shall governed by and disposed of in accordance with the
be filed, together with proof of service on all adverse applicable provisions of the Constitution, laws, Rules 45,
parties. 48, Sections 1, 2, and 5 to 11 of Rule 51, 52 and this Rule.
(n)
The proceedings for disciplinary action against members
of the judiciary shall be governed by the laws and Rules The procedure in the Supreme Court is the same as the
prescribed therefor, and those against attorneys by Rule Court of Appeals with some exceptions
139-B, as amended. (n)
Sec 5 – Grounds for Dismissal of Appeal
B. Appealed Cases
SECTION 5. Grounds for Dismissal of Appeal.— The
Original Actions appeal may be dismissed motu proprio or on motion of the
respondent on the following grounds:
1. Original actions for certiorari, prohibition,
mandamus, shall be governed by Rule 65; (a) Failure to take the appeal within the reglementary
2. Rules 46, 48, 49, 50, 51 and 52 (appealed cases) period;
on the CA shall also apply in the Supreme Court;

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(b) Lack of merit in the petition; refer it to the CA. But that prerogative is only given to the
SC and not to the CA.
(c) Failure to pay the requisite docket fee and other lawful
fees or to make a deposit for costs; Sec 7 – Procedure if Opinion is Equally Divided

(d) Failure to comply with the requirements regarding SECTION 7. Procedure if Opinion is Equally
proof of service and contents of and the documents Divided.— Where the court en banc is equally divided in
which should accompany the petition; opinion, or the necessary majority cannot be had, the
case shall again be deliberated on, and if after such
(e) Failure to comply with any circular, directive or order deliberation no decision is reached, the original action
of the Supreme Court without justifiable cause; commenced in the court shall be dismissed; in appealed
cases, the judgment or order appealed from shall stand
(f) Error in the choice or mode of appeal; and affirmed; and on all incidental matters, the petition or
motion shall be denied. (11a)
(g) The fact that the case is not appealable to the
Supreme Court. (n) Example: The case is to be decided by the Court of
Appeals En Banc (I think he meant Supreme Court En
Grounds: Banc), there are 15 justices but only 14 participated
1. Failure to take appeal within the reglementary because one is in medical leave. In the votation, it was
period; split equally.
2. Lack of merit in the petition;
3. Failure to pay docket fees, etc. What will happen?
4. Failure to comply with requirements on proof of There will be a re-deliberation.
service, contents, and documents to accompany the
petition If there is no decision reached, the following rules apply:
5. Failure to comply with circular, directives or order of (a) Original action filed – is deemed dismissed
the court without justifiable reason; (b) Appealed case – the appealed decision is
6. Error in the choice or mode of appeal; deemed affirmed
7. The fact that the case is not appealable to the SC (c) All incidental matters – the petition or motion is
deemed denied
Sec 6 – Disposition of Improper Appeal

SECTION 6. Disposition of Improper Appeal.— Except

as provided in Section 3, Rule 122 regarding appeals in
criminal cases where the penalty imposed is death,
reclusion perpetua or life imprisonment, an appeal taken
to the Supreme Court by notice of appeal shall be
dismissed.

An appeal by certiorari taken to the Supreme Court from

the Regional Trial Court submitting issues of fact may be
referred to the Court of Appeals for decisions or
appropriate action. The determination of the Supreme
Court on whether or not issues of fact are involved shall
be final. (n)

How will the Supreme Court dispose of an improper

appeal?
Appeal by Notice of Appeal from RTC to SC shall be
dismissed.

Appeal by certiorari to the SC from the decision of the

RTC raising issues of fact MAY be referred by the SC to
the CA for decision or appropriate action.

Monte: Take not it says “may”. It is up to the SC. The SC

can dismiss it outright. Or if maluoy siya nimo, the SC may

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 PROVISIONAL REMEDIES Before, a MTC can only grant preliminary injunction in a
case for forcible entry, not in unlawful detainer. But now,
Monte: Okay class, let’s now discuss the different in the new Rules, MTC can now grant preliminary
provisional remedies available to the litigant in a civil injunction, even in unlawful detainer cases. It can also
action. grant receivership and also replevin for as long as the
main action is within the jurisdiction of the MTC.
Provisional Remedies
UP 2020
Also known as ancillary or auxiliary remedies, are writs
and processes available during the pendency of the Nature of provisional remedies
action which may be resorted to by a litigant in order to They are temporary, auxiliary, and ancillary remedies
preserve and protect certain rights and interests therein, available to a litigant for the protection and preservation
pending rendition of judgment. They are ancillary because of his rights while the main action is pending. They are
they are mere incident and dependent on the results of writs and processes which are not main actions and are
the main action. dependent for their application on the existence of a
principal action. [1 Regalado 684, 2010 Ed.]
Kinds of Provisional Remedies
Orders granting or denying provisional remedies are
1) Preliminary Attachment (Rule 57); merely interlocutory and cannot be the subject of an
2) Preliminary Injunction (Rule 58); appeal. They may however be challenged before a
3) Receivership (Rule 59); superior court through a petition for certiorari under Rule
4) Replevin (Rule 60); 65. [Pahila- Garrido v. Tortogo, et. al., G.R. No. 156358
5) Support Pendente Lite (Rule 61) (2002)]

Monte: There are five kinds of provisional remedies. Now, When Available
there are some common provisions to the different
provisional remedies: Provisional
When Available
Remedy
Under the present Rules, Municipal Courts can now grant At any stage of the action, but
any of the provisional remedies provided that the main before final judgment
action is within their jurisdiction. Except for support
pendente lite, where the main action is within the Monte: So, you can ask for
jurisdiction of the RTC, all other provisional remedies can Preliminary
preliminary injunction or
be granted by the inferior courts and there is no need attachment &
preliminary attachment at the
anymore for the approval of the RTC if it will be enforced preliminary
time of the commencement of
outside the RTC’s territorial jurisdiction. injunction
the action and during the
pendency of the case, until the
Monte: Before the 1997 Rules were enacted and before court shall have decided the
the BP 129 was enacted, the power of the municipal trial case.
court to grant provisional remedies was very limited. Like, At any time or stage of the
it could grant preliminary attachment or replevin, but the Receivership action, or even after final
same could only apply in its territorial jurisdiction. The writ judgment
of preliminary attachment or replevin cannot go outside Must be applied before the
the MTC’s territorial jurisdiction except if there is a grant defendant files his answer
or permission from the CFI, or now, the RTC of that place.
Monte: This can be a
Under the new Rules, there is no more need of the Replevin provisional remedy or it can also
permission of the RTC for the writ of preliminary be the main action. But as a
attachment or replevin issued by the MTC to be enforced. provisional remedy, you can
Now, of the five provisional remedies, the MTC can only avail of this before the
already grant these provisional remedies except for one, defendant files his answer.
and that is support pendente lite. Support pendente At any stage of the action, or
lite even for the first time on appeal
Why? Because the main action for support is not within
the jurisdiction of the MTC. It is within the jurisdiction of Bond
the RTC. So, the municipal court cannot grant support
pendente lite. It can grant, however, preliminary The amount of bond to be posted by the applicant is
attachment, preliminary injunction. addressed to the sound discretion of the court. In replevin,
the bond to be posted is double the value of the personal

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property. In support pendente lite, no bond is generally party. Mawad-an siyag bond. So, the court said, “Once
required. you put up a bond, whether you are an insurance
company or a surety company, that will answer for the
Monte: Now, when you file or avail of any of these liability of the applicant until the court shall have decided
provisional remedies, you normally have to put up a bond. the main action or main case.” So, di naka mag-renew2x
So, there is a bond for preliminary attachment, a bond for every year thereafter.
preliminary injunction, a bond for receivership, and there
is even a bond for replevin, but there is no need for a bond RULE 57
in support pendente lite. PRELIMINARY ATTACHMENT

What is this bond for? Attachment is defined as a provisional remedy by which

A: It is an amount of money that will be deposited by the the property of an adverse party is taken into legal
applicant – the person who applied for provisional custody, either at the commencement of an action or at
remedies – with the court because that bond will answer any time thereafter, as a security for the satisfaction of
for whatever damage the defendant or the other party any judgment that can be recovered by the plaintiff or any
may have suffered by reason of the provisional remedy. proper party. [Northern Islands v. Garcia, GR No. 203240
(2015)]
So that will assure the person against whom a writ of
attachment/injunction is enforced will be able to recover When is it issued?
from the one who requested the writ in the event that the A: At any time after the commencement of an action, and
defendant will be able to prove that the writ of attachment before entry of judgment.
is pure harassment or has no basis in law.
Who will issue?
Lifetime of the Bond A: The court where the main case is pending.

Now what is the lifetime of the bond? What is the purpose?

A: From approval until the main action is decided, A: As security for the satisfaction of any judgment that the
UNLESS the court directs otherwise. court may render in favor of the applicant.

Monte: You know what, this is new. Because normally Monte: So, if I am the plaintiff for example, and I filed a
when you apply for a bond – when you ask the court for case against the defendant, and the defendant has
attachment, the court will ask you for a bond. If you do not already let us say he is absconding or he is hiding his
have the money, you normally go to an insurance property – I can ask the court to attach the properties of
company or a surety company, and they will be the one the defendant in order to assure that when I win the case,
who will put up the money or the bond for you. But you after the court has decided on the main action, at least, I
have to pay the insurance company a premium for that. have something to hold on to to assure that the judgment
of the court rendered in my favor will be satisfied.
Like for example, the court asked you to put up an
injunction bond in the amount of P1Mn, the P1Mn of the So, the purpose of the writ of attachment is actually to
insurance company will be used as a bond, but you have serve as a security for the satisfaction of any judgment
to pay the insurance company for the use of their money. that may be recovered in the following cases:
Maybe, you will have to pay a premium of P50k or P40k
– I don’t know what’s the rate. Sec. 1. Grounds Upon Which Attachment May Issue

But insurance companies or surety companies, before, Section 1. Grounds upon which attachment may
would always put in their contract with the applicant who issue. — At the commencement of the action or at any
applied for the attachment – the contract will state that the time before entry of judgment, a plaintiff or any proper
bond is valid only for 1 year not unless the applicant will party may have the property of the adverse party attached
renew it. And if the applicant will renew it after 1 year, he as security for the satisfaction of any judgment that may
will have to pay again the premium. be recovered in the following cases:
Then, the SC later on said, “No, that’s very unfair. If you (a) In an action for the recovery of a specified amount of
put up a bond, that bond should be valid until the main money or damages, other than moral and exemplary,
action is decided.” on a cause of action arising from law, contract, quasi-
contract, delict or quasi-delict against a party who is
Kay if mu follow ta sa argument sa mga insurance about to depart from the Philippines with intent to
company, suppose you cannot pay an additional premium defraud his creditors;
after 1 year, the insurance company will remove the
attachment bond. Well, that will also be unfair to the other

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(b) In an action for money or property embezzled or – you can ask at the same time for the issuance
fraudulently misapplied or converted to his own use of a writ of preliminary attachment so that you will
by a public officer, or an officer of a corporation, or an be able to attach the properties of the defendant
attorney, factor, broker, agent, or clerk, in the course who is guilty of embezzlement.
of his employment as such, or by any other person in
a fiduciary capacity, or for a willful violation of duty; 3) In an action to recover possession of property
unjustly or fraudulently taken, when said property has
(c) In an action to recover the possession of property been concealed, removed, or disposed to prevent its
unjustly or fraudulently taken, detained or converted, being found;
when the property, or any part thereof, has been
concealed, removed, or disposed of to prevent its − Monte: So, in an action to recover possession of
being found or taken by the applicant or an authorized a property – like, for example, replevin. A property
person; of yours that was unjustly or fraudulently taken,
and that property of yours is already concealed or
(d) In an action against a party who has been guilty of a removed or disposed of by the defendant in order
fraud in contracting the debt or incurring the obligation to prevent its being found, you can ask, at the
upon which the action is brought, or in the same, for the issuance of a writ of preliminary
performance thereof; attachment.

(e) In an action against a party who has removed or 4) In an action against a party guilty of fraud in
disposed of his property, or is about to do so, with contracting the debt or incurring the obligation upon
intent to defraud his creditors; or which the action is brought, or in the performance
thereof;
(f) In an action against a party who does not reside and
is not found in the Philippines, or on whom summons − Monte: Now, here, the defendant is guilty of fraud
may be served by publication. (1a) not only in contracting the obligation but also in
incurring the obligation upon which the action is
Grounds brought, or in the performance thereof. Like when
a friend of yours borrowed money and he issued
So, what are those cases or instances where the court to you a post-dated check to assure that you will
may grant the prayer for a writ of preliminary be paid, but he knew very well that that post-
attachment? dated check does not have a sufficient deposit –
A: The following are the grounds: that it is not funded – so he knew very well that it
will bounce, but he just issued a check in order to
1) In action for recovery of money or damages, other entice you to release your money to him or let him
than moral and exemplary, against a party who is borrow. Then, when you file a case against him,
about to depart from the Philippines with intent to you can ask at the same time for the issuance of
defraud his creditors; a writ of preliminary attachment.

− Monte: So, if you file a case against your debtor, 5) In an action against a party who has removed or
and the debtor is already planning to abscond – disposed his property, or is about to do so, with
he will go to the US and he will no longer come intent to defraud his creditors; and
back to the Philippines in order to avoid his
obligation to you – you can ask the court for the − Monte: When you file a case against him, he
issuance of a writ of preliminary attachment on immediately disposed of his property, he
the properties of the debtor/defendant in that immediately tried to hide some of his property so
case. that you would not able to recover anything from
him. Then, you can ask for attachment.
2) In an action for money or property embezzled or
fraudulently misapplied or converted to his use by 6) In an action against a party who does not reside in
a public officer, etc., or by any person in a fiduciary the Philippines, or on whom summons may be
capacity; served by publication.

− Monte: Like, for example, you entrusted a sum of − Monte: So here, attachment can be had so once
money to a friend, and your friend embezzled that the property of that defendant who does not
sum of money that was entrusted to him, and that reside in the Philippines anymore – once his
money was entrusted for a particular purpose but properties are attached, the court will have
he misapplied it, he misappropriated it, so you acquired jurisdiction over the res – so even if the
decided to file a case against that friend of yours court does not acquire jurisdiction over his

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 person, the court can proceed because it has the order, which may be the amount sufficient to satisfy
acquired jurisdiction over the res. the applicant's demand or the value of the property to be
− But now, under the new Rules, even if the attached as stated by the applicant, exclusive of costs.
defendant could not be served with summons and Several writs may be issued at the same time to the
therefore the court could not acquire jurisdiction sheriffs of the courts of different judicial regions. (2a)
over his person, the court can still acquire
jurisdiction over him by serving summons through Three Stages of Preliminary Attachment
publication.
1) Issuance of the Order granting the application;
Kinds of Attachment 2) Issuance of the Writ;
3) Implementation of the Writ.
Monte: Now, there are two kinds of attachment:
Note: The first two stages do not require that jurisdiction
1) Preliminary over the defendant must be obtained, unlike in the third
2) Final – actually refers to the levy upon execution stage.
– that is, when the court has already rendered a
decision, and that decision has already become Monte: Now, when you file a complaint, and there is a
final and executory, so the sheriff will now start ground for the issuance of the attachment, you can
looking for property of the defendant to be incorporate in your complaint already the prayer for
attached for the satisfaction of the judgment of preliminary attachment. Then, if the court will grant your
the court, that is what we call levy. prayer for a preliminary attachment, then the court will
issue an Order granting your prayer. After that, the court
Purposes will issue the writ of preliminary attachment. And after the
writ of preliminary attachment is issued, it will be given to
1) To hold the property of the debtor in advance for the the sheriff, and it is for the sheriff to enforce, and now that
purpose of satisfying final judgment; and is a matter for the implementation of the writ.

2) To enable the court to acquire jurisdiction over the The first one and the second one, (1) and (2) can be done
person or the property of the defendant who cannot by the court ex parte. The court can grant it even without
be personally served with summons (Monte: Or, to a hearing. And there is no need for notice or hearing. But
acquire jurisdiction over the res.) in the implementation of the writ, it cannot be done without
the court acquiring jurisdiction over the person of the
UP 2020 defendant first. In other words, summons must first be
served on the defendant for the court to acquire
Grant of Preliminary Attachment is Discretionary jurisdiction over him. So, this is why I said the first two
The grant of the remedy of preliminary attachment is stages do not require that jurisdiction over the defendant
addressed to judicial discretion. There is nothing in Rule must be obtained, unlike in the third stage, where
57 which indicates that the grant of such writ is a matter jurisdiction must first be obtained.
of right on the part of the applicant. [2 Riano 13, 2016
Bantam Ed.] So, how will the sheriff implement a writ of
attachment?
Strict Construction A: He will go to the defendant, he will now serve the
Since preliminary attachment opens up the debtor to summons together with the complaint, and then, together
humiliation and annoyance, it may only be granted when with the summons and the complaint also is the writ of
necessary and as a last resort on concrete and specific attachment.
grounds. [2 Riano 14, 2016 Bantam Ed.]
The affidavit that is submitted by the applicant in support
Sec. 2. Issuance and Contents of Order for his prayer for the writ of attachment must also be
attached to the summons and the complaint.
Section 2. Issuance and contents of order. — An order
of attachment may be issued either ex parte or upon Monte: So, idungan na ang pagserve sa summons, and
motion with notice and hearing by the court in which the the complaint and kuyog na ang copy of the writ of
action is pending, or by the Court of Appeals or the preliminary attachment. And after that, the court can
Supreme Court, and must require the sheriff of the court already start attaching the property of the defendant.
to attach so much of the property in the Philippines of the
party against whom it is issued, not exempt from
execution, as may be sufficient to satisfy the applicant's
demand, unless such party makes deposit or gives a bond
as hereinafter provided in an amount equal to that fixed in

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 Issuance sufficient security for the loan. There is a mortgage
executed by the defendant in your favor.
The order of attachment may be issued:
a) Ex parte; or So, in other words, your claim, or the claim you seek to
b) Upon motion with notice and hearing. enforce by the action is covered by a sufficient security,
which is the mortgage. So, that will not be granted by the
Contents court.

It requires the sheriff to attach so much of the properties Sec. 4. Condition of Applicant’s Bond
of the debtor in the Philippines not exempt from execution
as may be sufficient to satisfy the applicant’s demand. Section 4. Condition of applicant's bond. — The party
applying for the order must thereafter give a bond
Sec. 3. Affidavit and Bond Required executed to the adverse party in the amount fixed by the
court in its order granting the issuance of the writ,
Section 3. Affidavit and bond required. — An order of conditioned that the latter will pay all the costs which may
attachment shall be granted only when it appears by the be adjudged to the adverse party and all damages which
affidavit of the applicant, or of some other person who he may sustain by reason of the attachment, if the court
personally knows the facts, that a sufficient cause of shall finally adjudge that the applicant was not entitled
action exists, that the case is one of those mentioned in thereto. (4a)
section 1 hereof, that there is no other sufficient security
for the claim sought to be enforced by the action, and that Condition of the Applicant’s Bond:
the amount due to the applicant, or the value of the
property the possession of which he is entitled to recover, The applicant must put up a bond in an amount to be fixed
is as much as the sum for which the order is granted by the court, on the condition that the latter will pay all
above all legal counterclaims. The affidavit, and the bond the costs which may be adjudged to the adverse party
required by the next succeeding section, must be duly and all damages which he may sustain by reason of
filed with the court before the order issues. (3a) the attachment, if the court shall finally adjudge that the
applicant was not entitled thereto.
The applicant must attach to his application or complaint
executed by him or some other person who personally Note: There is no rule allowing substitution of attached
knows the facts that a sufficient cause of action exists, property. The debtor may put-up a counter-bond.
and that there is no other sufficient security for the
claim sought to be enforced by the action. Now, what are the conditions of the applicant’s bond?
A:
The affidavit and the bon required must be duly filed with 1. The applicant must put up a bond in an amount
the clerk of court before the order issues. to be fixed by the court;
2. The bond must be on the condition that the
Monte: Now, the affidavit and the bond that must be set- applicant will pay:
up by the applicant in order for the court to grant the a. All the costs which may be adjudged to
prayer for a writ of preliminary attachment must be the adverse party, and
attached to the complaint. b. All the damages which he may sustain by
reason of the attachment
Now, it’s very important that when you ask the court for IF: The court shall finally adjudge that the
the issuance of a writ of preliminary attachment – your applicant was not entitled thereto.
prayer must state that there is no other sufficient
security for the claim sought to be enforced by the action. Monte: In other words, the purpose of the applicant’s
Because if there is sufficient security, the court will not bond is to assure the defendant that if he can prove that
grant the prayer for attachment. my application for attachment is baseless and unfounded,
and because of the attachment of his property he suffered
Like, for example, your friend borrowed money from you. damages, then he can recover damages from me through
He executed a real estate mortgage over his land. So, in the bond that I presented to the court. So, that is the
other words, the loan of your friend is secured by a purpose of the applicant’s bond.
mortgage on his land. Now when your friend failed to pay,
you opted to file a case for the collection of a sum of Counter-bond
money instead of foreclosing the mortgage. And when
you filed the complaint for collection, you asked the court The party against whom the writ was issued may make a
at the same time for the issuance of a writ of attachment. deposit or give a bond in an amount equal to that fixed in
Do you think the court will grant your prayer for the order, which may be the amount sufficient to satisfy
attachment? The answer is no. Why? Because there is

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the applicant’s demand or the value of the property to be banaon lang sad sa sheriff ang pag-attach sa
attached as stated by the applicant. properties sa defendant na worth P1Mn, at least.

Monte: When a writ of preliminary attachment is issued No levy on attachment pursuant to the writ shall be
by the court, the defendant, however, may prevent the enforced unless it is preceded or contemporaneously
attachment by putting up a counter-bond in amount equal accompanied by service of summons, together with a
to that fixed in the order. copy of the complaint, the application for attachment, the
applicant’s affidavit and bond, and the order and the writ.
Note: Several writs may be issued at the same time by − Exception: Summons by publication
the court addressed to sheriffs of courts of different
judicial regions. Monte: So this is what I mentioned a while ago – that
when the sheriff will now implement the writ, it is
Monte: If duna siyay properties sa Bohol, in Negros, in necessary that the court will have to acquire jurisdiction
Siquijor, in Leyte, the court can issue several writs of over the person of the defendant first. And that is done by
attachment at the same time addressed to the sheriffs of service of summons to the defendant. And when the
courts of different judicial regions in order that those sheriff serves summons upon the defendant, apil na sab
properties in different places can be attached. paghatag niya ang writ of attachment, together with all the
supporting documents of the writ of attachment, including
Sec. 5. Manner of Attaching Property a copy of the bond that was set-up by the applicant. The
affidavits, and the bond, and the order and the writ shall
Section 5. Manner of attaching property. — The sheriff be presented to the defendant.
enforcing the writ shall without delay and with all
reasonable diligence attach, to await judgment and Sec. 6. Sheriff’s Return
execution in the action, only so much of the property in
the Philippines of the party against whom the writ is Section 6. Sheriff's return. — After enforcing the writ,
issued, not exempt from execution, as may be sufficient the sheriff must likewise without delay make a return
to satisfy the applicant's demand, unless the former thereon to the court from which the writ issued, with a full
makes a deposit with the court from which the writ is statement of his proceedings under the writ and a
issued, or gives a counter-bond executed to the applicant, complete inventory of the property attached, together with
in an amount equal to the bond fixed by the court in the any counter-bond given by the party against whom
order of attachment or to the value of the property to be attachment is issued, and serve copies thereof on the
attached, exclusive of costs. No levy on attachment applicant. (6a)
pursuant to the writ issued under section 2 hereof shall be
enforced unless it is preceded, or contemporaneously Sec. 7. Attachment of Real & Personal Property;
accompanied, by service of summons, together with a Recording Thereof
copy of the complaint, the application for attachment the
applicant's affidavit and bond, and the order and writ of Section 7. Attachment of real and personal property;
attachment, on the defendant within the Philippines. recording thereof. — Real and personal property shall
be attached by the sheriff executing the writ in the
The requirement of prior or contemporaneous service of following manner:
summons shall not apply where the summons could not
be served personally or by substituted service despite (a) Real property, or growing crops thereon, or any
diligent efforts, or the defendant is a resident of the interest therein, standing upon the record of the
Philippines temporarily absent therefrom, or the registry of deeds of the province in the name of the
defendant is a non-resident of the Philippines, or the party against whom attachment is issued, or not
action is one in rem or quasi in rem. (5a) appearing at all upon such records, or belonging to
the party against whom attachment is issued and held
Duty of the Sheriff by any other person, or standing on the records of the
registry of deeds in the name of any other person, by
Now, what is the duty of the sheriff upon receipt of filing with the registry of deeds a copy of the order,
the writ of attachment that is issued by the court? together with a description of the property attached,
A: The sheriff enforcing the writ shall immediately attach and a notice that it is attached, or that such real
the properties of the debtor not exempt from execution as property and any interest therein held by or standing
may be sufficient to satisfy the applicant’s demand. in the name of such other person are attached, and
by leaving a copy of such order, description, and
− Monte: So, bana-banaon lang sad sa sheriff ug notice with the occupant of the property, if any, or with
pila kabuok properties iyang i-attach to be such other person or his agent if found within the
sufficient to satisfy the claim of the plaintiff. If the province. Where the property has been brought under
claim of the plaintiff is only P1Mn, then bana- the operation of either the Land Registration Act or

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 the Property Registration Decree, the notice shall Attachment – How Done
contain a reference to the number of the certificate of
title, the volume and page in the registration book Kind of Property Manner of Attachment
where the certificate is registered, and the registered Thru the records in the Register
owner or owners thereof. of Deeds

− The registrar of deeds must index attachments filed Monte: Now if the property to be
under this section in the names of the applicant, the attached is real property, it is
adverse party, or the person by whom the property is Real Property done through the recording in the
held or in whose name it stands in the records. If the Office of the Register of Deeds
attachment is not claimed on the entire area of the the writ of attachment. The writ of
land covered by the certificate of title, a description attachment will be annotated at
sufficiently accurate for the identification of the land the back of the property
or interest to be affected shall be included in the belonging to the defendant.
registration of such attachment; By taking and keeping it in the
custody of the sheriff
(b) Personal property capable of manual delivery, by
taking and safely keeping it in his custody, after Monte: But if the property is
issuing the corresponding receipt therefor. Personal Property personal property, the sheriff will
have to take the property – seize
(c) Stocks or shares, or an interest in stocks or shares, the property – and keep it in his
of any corporation or company, by leaving with the custody. He will bring it to the
president or managing agent thereof, a copy of the court and he will deposit it there.
writ, and a notice stating that the stock or interest of By leaving the writ of attachment
the party against whom the attachment is issued is with the President or Managing
attached in pursuance of such writ; Agent thereof

(d) Debts and credits, including bank deposits, financial Monte: Now, if the property to be
interest, royalties, commissions and other personal attached is an incorporeal
Stocks or Shares
property not capable of manual delivery, by leaving property – stocks or shares of
with the person owing such debts, or having in his stocks – it is done by leaving the
possession or under his control, such credits or other writ of attachment with the
personal property, or with his agent, a copy of the writ, President or the Managing Agent
and notice that the debts owing by him to the party where the shares of stock of the
against whom attachment is issued, and the credits defendant is recorded.
and other personal property in his possession, or By leaving the writ with the
under his control, belonging to said party, are person in possession of said
attached in pursuance of such writ; credit, with notice of its
Debts and Credits attachment
(e) The interest of the party against whom attachment is
issued in property belonging to the estate of the Monte: We call this as actually a
decedent, whether as heir, legatee, or devisee, by form of garnishment.
serving the executor or administrator or other
personal representative of the decedent with a copy Property in Custodia Legis
of the writ and notice that said interest is attached. A
copy of said writ of attachment and of said notice shall If property is in custodia legis, a copy of the writ of
also be filed in the office of the clerk of the court in attachment shall be filed with the proper court, and the
which said estate is being settled and served upon notice of attachment shall also be served upon the
the heir, legatee or devisee concerned. custodian of such property.

If the property sought to be attached is in custodia legis, Attachment of Salary

a copy of the writ of attachment shall be filed with the
proper court or quasi-judicial agency, and notice of the Can the salary of the defendant be attached?
attachment served upon the custodian of such property. A: Yes, this is allowed but only (1) at the end of the month;
(7a) or (2) on a payday, as prior thereto; the same is not yet
considered due to the debtor.

Monte: However, you cannot attach the entire salary. You

can only attach a portion of the salary that is in excess of

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what the defendant needed. His salary is also needed for representative, however, shall report the attachment to
his survival. So di sad na nimo mahurot ug kuha kay unsa the court when any petition for distribution is filed, and in
namay kan-on sa defendant kung hutdon nimo? the order made upon such petition, distribution may be
awarded to such heir, legatee or devisee, but the property
Government Funds attached shall be ordered delivered to the sheriff making
the levy, subject to the claim of such heir, legatee, or
Government funds, as a rule, cannot be attached. devisee, or any person claiming under him. (9a)
However, when the government enters into a commercial
business, it abandons its sovereign capacity and is to be Effect of Attachment or Garnishment
treated like any other corporation.
On debts, credits and all other similar personal
Monte: You have that in political law that when the property
government enters into a contract, it abandons or it is no
longer non-suable. We have that principle of non-suability There will be forced novation, and the applicant will be
of State, diba? The State cannot be sued without its substituted to the right of the debtor over the property or
consent, but if the State enters into a contract and money being attached. The garnishee shall hold the
exercises proprietary functions, it can now be open to money for the applicant until judgment is rendered.
suits. Pwede na makiha. And ug pwede na makiha ang
gobierno, pwede na sad ma-attach ang property sa Monte: So, in other words, if the debtor has also a debtor,
gobierno. the debtor of your debtor can hold that money for your
benefit. You can attach that money, but the said debtor is
Existing Liens vs. Attachment supposed to pay your debtor. So, you can tell the debtor
of your debtor, “Hold it. Don’t take it to my debtor because
Existing liens on the property, if registered, is superior to I already filed a case against him. So, when I win the case,
attachment. In reality, what was attached by the creditor you pay it to me.” That is an example of an attachment or
was only the debtor’s right or equity of redemption. garnishment. The garnishee shall hold the money for the
applicant until judgment is rendered.
Monte: You remember Sec. 12 of Rule 39 that the levy –
which is actually a form of attachment – made by the On interests in property belonging to the estate of a
sheriff on the property of the judgment debtor is subject to decedent
the liens and encumbrances then-existing. Meaning, if the
property that was levied or attached is already subject to If what is being attached is the interest of the debtor over
liens and encumbrances, those liens and encumbrances the estate of his deceased predecessor, the power of the
prior to the levy/attachment is superior to said administrator or executor is not impaired.
levy/attachment.
Sec. 8-9. Effects of Attachment Sec. 10. Examination of the Debtor of the Judgment
Debtor
Section 8. Effect of attachment of debts, credits and
all other similar personal property. — All persons Section 10. Examination of party whose property is
having in their possession or under their control any attached and persons indebted to him or controlling
credits or other similar personal property belonging to the his property; delivery of property to sheriff. — Any
party against whom attachment is issued, or owing any person owing debts to the party whose property is
debts to him, at the time of service upon them of the copy attached or having in his possession or under his control
of the writ of attachment and notice as provided in the last any credit or other personal property belonging to such
preceding section, shall be liable to the applicant for the party, may be required to attend before the court in which
amount of such credits, debts or other similar personal the action is pending, or before a commissioner appointed
property, until the attachment is discharged, or any by the court, and be examined on oath respecting the
judgment recovered by him is satisfied, unless such same. The party whose property is attached may also be
property is delivered or transferred, or such debts are required to attend for the purpose of giving information
paid, to the clerk, sheriff, or other proper officer of the respecting his property, and may be examined on oath.
court issuing the attachment. (8a) The court may, after such examination, order personal
property capable of manual delivery belonging to him, in
Section 9. Effect of attachment of interests in the possession of the person so required to attend before
property belonging to the estate of a decedent. — The the court, to be delivered to the clerk of the court or sheriff
attachment of the interest of an heir, legatee, or devisee on such terms as may be just, having reference to any lien
in the property belonging to the estate of a decedent shall thereon or claim against the same, to await the judgment
not impair the powers of the executor, administrator, or in the action. (10a)
other personal representative of the decedent over such
property for the purpose of administration. Such personal

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If the garnishee does not admit the indebtedness or if he that the attaching party may recover in the action. A notice
claims the property, the controversy must be determined of the deposit shall forthwith be served on the attaching
in an independent action, and the court cannot compel the party. Upon the discharge of an attachment in accordance
garnishee to appear before it for examination. with the provisions of this section, the property attached,
or the proceeds of any sale thereof, shall be delivered to
Monte: This is governed actually – this is similar to the the party making the deposit or giving the counter-bond,
rules we have already discussed under Sec. 16, Rule 39, or to the person appearing on his behalf, the deposit or
which talks about terceria, where the property levied by counter-bond aforesaid standing in place of the property
the sheriff is claimed by a third person. What will the so released. Should such counter-bond for any reason be
sheriff do? The sheriff cannot proceed with the sale on found to be or become insufficient, and the party
execution. He must immediately notify the judgment furnishing the same fail to file an additional counter-bond,
creditor and the judgment creditor can ask the sheriff to the attaching party may apply for a new order of
proceed with the execution sale provided that he will put attachment. (12a)
up a bond to assure that if the sheriff will be held liable,
that bond will be the one to answer. Discharge of Attachment Upon Giving of the Counter-
Bond:
Sec. 11. When Attachment May be Sold Before − Deposit of cash bond equal to the amount fixed
Judgment (i.e. perishable goods) by the court in the order of attachment, exclusive
of costs will discharge the attachment.
Section 11. When attached property may be sold after − Counter-bond if the attachment is sought to be
levy on attachment and before entry of judgment. — discharged with respect to a particular property,
Whenever it shall be made to appear to the court in which the counter-bond shall be equal to the value of
the action is pending, upon hearing with notice to both that property as determined by court.
parties, that the property attached is perishable, or that
the interests of all the parties to the action will be Sec. 13. Discharge of Attachment on Other Grounds
subserved by the sale thereof, the court may order such
property to be sold at public auction in such manner as it Section 13. Discharge of attachment on other
may direct, and the proceeds of such sale to be deposited grounds. — The party whose property has been ordered
in court to abide the judgment in the action. (11a) attached may file a motion with the court in which the
action is pending, before or after levy or even after the
Monte: Now, the property that is attached by the sheriff release of the attached property, for an order to set aside
will be kept by the sheriff for the future execution sale or discharge the attachment on the ground that the same
when the court will eventually decide the case in favor of was improperly or irregularly issued or enforced, or that
the applicant. So, the property attached must be the bond is insufficient. If the attachment is excessive, the
preserved, not sold immediately except if it is a perishable discharge shall be limited to the excess. If the motion be
goods. Wherein the property attached is perishable, it will made on affidavits on the part of the movant but not
deteriorate fast, so it can be sold immediately by the otherwise, the attaching party may oppose the motion by
sheriff. And so, only the money or the proceeds will be counter-affidavits or other evidence in addition to that on
kept by whoever will win in the case. which the attachment was made. After due notice and
hearing, the court shall order the setting aside or the
Sec. 12. Discharge of Attachment Upon Giving corresponding discharge of the attachment if it appears
Counter-Bond that it was improperly or irregularly issued or enforced, or
that the bond is insufficient, or that the attachment is
Section 12. Discharge of attachment upon giving excessive, and the defect is not cured forthwith. (13a)
counter-bond. — After a writ of attachment has been
enforced, the party whose property has been attached, or Discharge of Attachment on Other Grounds
the person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on the Attachment may also be discharged on other
security given. The court shall, after due notice and grounds:
hearing, order the discharge of the attachment if the a) It was improperly or irregularly issued or enforced;
movant makes a cash deposit, or files a counter-bond b) The bond is insufficient;
executed to the attaching party with the clerk of the court c) If the attachment is excessive, the discharge shall be
where the application is made, in an amount equal to that limited to the excess;
fixed by the court in the order of attachment, exclusive of d) Property attached is exempt from execution; or
costs. But if the attachment is sought to be discharged e) Attaching creditor lost the case.
with respect to a particular property, the counter-bond
shall be equal to the value of that property as determined Note: If the motion for discharge is supported by an
by the court. In either case, the cash deposit or the affidavit, the movant shall oppose it by counter-affidavit.
counter-bond shall secure the payment of any judgment

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 Sec. 14. Where Property Attached is Claimed by A (b) If any balance remains due, by selling so much of the
Third Person property, real or personal, as may be necessary to
satisfy the balance, if enough for that purpose remain
Section 14. Proceedings where property claimed by in the sheriff's hands, or in those the clerk of the court;
third person. — If the property attached is claimed by
any person other than the party against whom attachment (c) By collecting from all persons having in their
had been issued or his agent, and such person makes an possession credits belonging to the judgment obligor,
affidavit of his title thereto, or right to the possession or owing debts to the latter at the time of the
thereof, stating the grounds of such right or title, and attachment of such credits or debts, the amount of
serves such affidavit upon the sheriff while the latter has such credits and debts as determined by the court in
possession of the attached property, and a copy thereof the action, and stated in the judgment, and paying the
upon the attaching party, the sheriff shall not be bound to proceeds of such collection over to the judgment
keep the property under attachment, unless the attaching obligee.
party or his agent, on demand of the sheriff, shall file a
bond approved by the court to indemnify the third-party The sheriff shall forthwith make a return in writing to the
claimant in a sum not less than the value of the property court of his proceedings under this section and furnish the
levied upon. In case of disagreement as to such value, the parties with copies thereof. (15a)
same shall be decided by the court issuing the writ of
attachment. No claim for damages for the taking or Monte: That’s precisely the purpose of attachment. That
keeping of the property may be enforced against the bond the property attached by the plaintiff will be used to satisfy
unless the action therefor is filed within one hundred the judgment that the court will render in favor of the
twenty (120) days from the date of the filing of the bond. attaching creditor later on.

The sheriff shall not be liable for damages for the taking Sec. 16. Balance Due Collected Upon an Execution;
or keeping of such property to any such third-party Excess Delivered to Judgment Obligor
claimant, if such bond shall be filed. Nothing herein
contained shall prevent such claimant or any third person Section 16. Balance due collected upon an execution;
from vindicating his claim to the property, or prevent the excess delivered to judgment obligor. — If after
attaching party from claiming damages against a third- realizing upon all the property attached, including the
party claimant who filed a frivolous or plainly spurious proceeds of any debts or credits collected, and applying
claim, in the same or a separate action. the proceeds to the satisfaction of the judgment less the
expenses of proceedings upon the judgment any balance
When the writ of attachment is issued in favor of the shall remain due, the sheriff must proceed to collect such
Republic of the Philippines, or any officer duly balance as upon ordinary execution. Whenever the
representing it, the filing of such bond shall not be judgment shall have been paid, the sheriff, upon
required, and in case the sheriff is sued for damages as a reasonable demand, must return to the judgment obligor
result of the attachment, he shall be represented by the the attached property remaining in his hands, and any
Solicitor General, and if held liable therefor, the actual proceeds of the sale of the property attached not applied
damages adjudged by the court shall be paid by the to the judgment. (16a)
National Treasurer out of the funds to be appropriated for
the purpose. (14a) UP 2020

Note: Similar to Sec. 16, Rule 39 If proceeds from realization of all property attached
are not enough to satisfy judgement
Sec. 15. Satisfaction of Judgment Out of Property If such a scenario happens, the Rules of Court instruct
Attached that any balance shall be collected by the sheriff as upon
ordinary execution. Whenever the judgement shall have
Section 15. Satisfaction of judgment out of property been paid, the sheriff must return to the judgement debtor
attached, return of sheriff. — If judgment be recovered any attached property remaining in his hands. [Sec. 16,
by the attaching party and execution issue thereon, the Rule 57]
sheriff may cause the judgment to be satisfied out of the
property attached, if it be sufficient for that purpose in the Duration of an attachment lien
following manner: While the provisions of Rule 57 are silent on the length of
time within which an attachment lien shall continue to
(a) By paying to the judgment obligee the proceeds of all subsist after the rendition of a final judgment. The lien
sales of perishable or other property sold in continues until:
pursuance of the order of the court, or so much as a) The debt is paid, or
shall be necessary to satisfy the judgment; b) The sale is had under execution issued on
c) the judgment, or

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 d) Until the judgment is satisfied, or Sec. 19. Disposition of Attached Property Where
e) The attachment discharged or vacated in Judgment is for Party Against Whom Attachment
f) the same manner provided by law. [Lim v. Sps. Was Issued
Lazaro, G.R. No. 185734 (2013)]
Section 19. Disposition of attached property where
Sec. 17. Recovery Upon the Counter-Bond judgment is for party against whom attachment was
issued. — If judgment be rendered against the attaching
Section 17. Recovery upon the counter-bond. — party, all the proceeds of sales and money collected or
When the judgment has become executory, the surety or received by the sheriff, under the order of attachment, and
sureties on any counter-bond given pursuant to the all property attached remaining in any such officer's
provisions of this Rule to secure the payment of the hands, shall be delivered to the party against whom
judgment shall become charged on such counter-bond attachment was issued, and the order of attachment
and bound to pay the judgment obligee upon demand the discharged. (19a)
amount due under the judgment, which amount may be
recovered from such surety or sureties after notice and Sec. 20. Claim For Damages On Account Of
summary hearing in the same action. (17a) Improper, Irregular Or Excessive Attachment

If writ of execution is returned unsatisfied, the counter- Section 20. Claim for damages on account of
bond is automatically liable. But the surety must be improper, irregular or excessive attachment. — An
given notice and a summary hearing must be had. application for damages on account of improper, irregular
or excessive attachment must be filed before the trial or
Monte: So, if the court eventually decides a case in favor before appeal is perfected or before the judgment
of the plaintiff, and the sheriff is now going to serve the becomes executory, with due notice to the attaching party
writ of execution; the sheriff was not able to satisfy the and his surety or sureties setting forth the facts showing
judgment of the court, why? Because the property of the his right to damages and the amount thereof. Such
judgment-debtor that was previously attached was damages may be awarded only after proper hearing and
already released because the debtor put up a counter- shall be included in the judgment on the main case.
bond. After it was released, the debtor immediately sold
all of his properties. So, later on, when the court decided If the judgment of the appellate court be favorable to the
the case in favor of the plaintiff, wala nay mahagdaw ang party against whom the attachment was issued he must
sheriff. So unsa ang buhaton sa plaintiff? Run after the claim damages sustained during the pendency of the
counter-bond the defendant. appeal by filing an application in the appellate court, with
notice to the party in whose favor the attachment was
The counter-bond will be automatically liable. If the issued or his surety or sureties, before the judgment of the
counterbond was put-up by an insurance company or appellate court becomes executory. The appellate court
surety company, said company must be given a notice, may allow the application to be heard and decided by the
and a summary hearing be conducted to give the surety trial court.
an opportunity to be heard.
Nothing herein contained shall prevent the party against
Sec. 18. Disposition of Money Deposited whom the attachment was issued from recovering in the
same action the damages awarded to him from any
Section 18. Disposition of money deposited. — Where the property of the attaching party not exempt from execution
party against whom attachment had been issued has should the bond or deposit given by the latter be
deposited money instead of giving counter-bond, it shall insufficient or fail to fully satisfy the award. (20a)
be applied under the direction of the court to the
satisfaction of any judgment rendered in favor of the Slide: Defendant can proceed against the bond.
attaching party, and after satisfying the judgment the However, if the plaintiff can prove that he acted in good
balance shall be refunded to the depositor or his faith in procuring the attachment, there will be no recovery
assignee. If the judgment is in favor of the party against from the bond.
whom attachment was issued, the whole sum deposited
must be refunded to him or his assignee. (18a) Now, what happens if it was not the attaching creditor
who won the case? Instead, it was the debtor whose
Monte: If the property that was attached was later on sold property was attached that won the case?
in the execution sale, then it shall be disposed of in such A: If the judgment is in favor of the defendant, the property
a manner to satisfy the judgment in favor of the attaching attached should be returned to him plus damages of
creditor. whatever damage the defendant suffered from the
attachment. And the defendant can recover that from the
attachment bond that was set-up by the plaintiff when he
asked for the issuance of the writ of attachment.

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The application for damages must be filed before trial FINAL INJUNCTION
(counterclaim) or before the appeal is perfected, or before Once the court decides the case, that preliminary
the judgment becomes executory, with due notice to the injunction can become final.
plaintiff and his surety. Note: Injunction could either be a:
1. Provisional remedy; or a
Monte: So, when the plaintiff files a case against the 2. Main action itself
defendant, and the plaintiff at the same time asks for a
writ of preliminary attachment, and the court granted it, so PURPOSE OF INJUNCTION
the property of the defendant was attached, the defendant To preserve the status quo by restraining the action or
in his answer must raise a counterclaim and during the interference or by furnishing preventive relief.
trial, he must prove to the court that attachment was not
proper and because of that, he suffered damages. Status Quo – Is the last actual, peaceable, uncontested
status which precedes the pending controversy.
If the judgment is that of the appellate court, and it is in
favor of the defendant, he must claim damages during the An injunctive writ is not a judgement on the merits of
pendency of the appeal or before the judgment of the the case. A writ of preliminary injunction is generally
appellate court becomes executory. based solely on initial and incomplete evidence.
Thus, the issuance of a writ of preliminary injunction
PIONEER INSURANCE VS. HONTANOSAS is interlocutory in nature.
G.R. No. L-35951, August 31 1977

The claim for damages against the bond in a wrongful BATACLAN V. CA, ET AL., GR NO. 78148, JULY 31,
attachment can only be sought in the same court where 1989
the bond was filed and the attachment was issued. Court should not summarily issue an order of denial of
the writ without an adequate hearing and judicious
RULE 58 evaluation of the merits of the application. A perfunctory
PRELIMINARY INJUNCTION and improvident action in this regard would be a denial
of procedural due process.
This remedy can be availed of by a party while the
case is still pending until the trial court would render ORTIGAS & CO. LTD. PARTNERSHIP VS. CA, GR.
judgment. NO. 79128, JUNE 16, 1988
Courts should avoid issuing a writ of preliminary
injunction which in effect disposes of the main case
PRELIMINARY INJUNCTION
without trial.
SECTION 1. Preliminary Injunction
Defined; Classes.— A preliminary injunction is an REQUISITES FOR THE ISSUANCE OF A
order granted at any stage of an action or proceeding MANDATORY INJUNCTION
prior to the judgment or final order, requiring a party
or a court, agency or a person to refrain from a A. The invasion of the right is material and substantial;
particular act or acts. It may also require the B. The right of the complainant is clear and
performance of a particular act or acts, in which case unmistakable;
it shall be known as a preliminary mandatory C. There is an urgent and paramount necessity for the
injunction. (1a) writ to prevent serious damage;
D. Effect of mandatory injunction would not be to
create a new relation between the parties which
It is an order granted at any stage of an action or was arbitrarily interrupted by the defendant.
proceeding prior to the judgment or final order, requiring
a party to refrain from a particular act or it may also WHO MAY GRANT PRELIMINARY INJUNCTION
require the performance of a particular act.
SECTION 2. Who May Grant Preliminary
2 KINDS OF PRELIMINARY INJUNCTION Injunction.— A preliminary injunction may be
1. PROHIBITORY – orders a party to prohibit from granted by the court where the action or proceeding
doing the act until the court can decide the main is pending. If the action or proceeding is pending in
case. the Court of Appeals or in the Supreme Court, it may
2. MANDATORY- a party is required to do a be issued by said court or any member thereof. (2a)
particular act during the pendency of the case;
Who may grant preliminary injunction?
commands the performance of some positive act
to correct a wrong made in the past. 1. Court where the main action is pending;
2. By the Court of Appeals or the Supreme Court.

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The higher courts can also issue a preliminary AGAINST GOVERNMENT PROJECTS
injunction addressed to the court where the case is No injunction can be issued by the courts, except the
pending. For example, CA could issue such writ against Supreme Court, that would adversely affect the
the RTC. expeditious implementation of government projects.

ABIERA V. CA, ET AL., GR L-26294, MAY 31, 1972

JURISDICTIONAL RULES ON INJUNCTION As a rule, a court cannot issue an injunctive writ against
the decision of a co-equal court. however, if the property
1. Supreme Court can issue preliminary of a third person was erroneously levied on execution
injunction on cases appealed before it or in pursuant to the decision of a court, and the third person
original actions commenced therein.
files an independent action (terceria) to recover his
property in another court, the said court may issue a writ
2. Court of Appeals can now issue preliminary
of injunction to prevent the sale which was intended to
injunction even if it is not in aid of its
satisfy the judgment of the first court.
appellate jurisdiction.
WHEN NOT ALLOWED:
3. RTC can issue writ in cases pending before
1. Under RA 8975 (An act to ensure the
it and those in lower court under its territorial
expeditious implementation and completion
jurisdiction.
of governmental infrastructure projects).
2. Under Rule of Procedure in Environmental
4. RTC had the power to issue writ limited to or
Cases, no court can issue a TRO or a
operative only within their respective
preliminary injunction against lawful actions
provinces or district (now region);
of government agencies that enforce
It is now settled under BP 129 that the writ of
environmental laws.
preliminary prohibitory injunction can be issued
3. No TRO or injunction in any case involving
by the court but it will only be effective within the
or growing out of a labor dispute. It is the
region where that RTC sits. For example, an
NLRC which may grant injunctive relief.
injunction issued by the RTC Cebu City can go
4. No court shall have the authority to grant
beyond its territorial jurisdiction but not beyond
injunction to restrain the collection of any
its region. So, it can be effective in Bohol,
national internal revenue tax except when
Siquijor, or Negros Oriental because these are
special circumstances warrant.
part of the 7th judicial region. Thus, RTC Cebu
5. An injunction cannot be issued against
City cannot issue a preliminary prohibitory
consummated acts.
injunction that would restrain the commission of
UP BOC 2020, page 187
an act done in Manila.

5. RTC cannot issue writ against DOLE, SSS,

GROUNDS FOR THE ISSUANCE OF PRELIMINARY
SEC, Patent Office, COMELEC, as the
INJUNCTION
remedy lies in either the Court of Appeals or
Supreme Court. SECTION 3. Grounds for Issuance of
It is only the CA and the SC who can restrain the Preliminary Injunction.— A preliminary injunction
acts of these offices. This is one of the examples may be granted when it is established:
of jurisdiction over the subject matter but has no
jurisdiction over the remedy. The RTC may (a) That the applicant is entitled to the relief
have jurisdiction over the subject matter of the demanded, and the whole or part of such
case (For example, the plaintiff asks for relief consists in restraining the commission
damages and asks that defendant be restrained or continuance of the act or acts complained
from doing acts), but the court does not have of, or in requiring performance of an act or
jurisdiction over the provisional remedy prayed acts, either for a limited period or
for. perpetually;

(b) That the commission, continuance or non-

IN UNLAWFUL DETAINER CASES performance of the act or acts complained
Formerly, the inferior courts could originally grant of during the litigation would probably work
preliminary injunction only in forcible entry cases BUT injustice to the applicant; or
not in unlawful detainer cases. However, the RTC may
grant P.I. in unlawful detainer cases appealed (c) That a party, court, agency or a person is
before it where the appeal appears to be frivolous doing, threatening, or is attempting to do, or
or dilatory. is procuring or suffering to be done, some
act or acts probably in violation of the rights

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 of the applicant respecting the subject of the mandatory injunction to restore you to the status
action or proceeding, and tending to render quo.
the judgment ineffectual. (3a)
REQUIREMENTS FOR ISSUANCE OF PRELIMINARY
GROUNDS: INJUNCTION OR TRO
1. That the applicant is entitled to the relief SECTION 4. Verified Application and Bond for
demanded, and the whole or part of such Preliminary Injunction or Temporary Restraining
relief consists in restraining the Order.— A preliminary injunction or temporary
commission or continuance of the act or restraining order may be granted only when:
acts complained of, or in requiring
performance of an act or acts, either for a (a) The application in the action or
limited period or perpetually; proceeding is verified, and shows facts entitling the
applicant to the relief demanded; and
2. That the commission, continuance or non-
(b) Unless exempted by the court, the
performance of the act or acts complained
applicant files with the court where the action or
of during the litigation would probably
proceeding is pending, a bond executed to the party
work injustice to the applicant; or
or person enjoined, in an amount to be fixed by the
court, to the effect that the applicant will pay to such
3. That a party, court, agency or a person is
party or person all damages which he may sustain
doing, threatening, or is attempting to do,
by reason of the injunction or temporary restraining
or is procuring or suffering to be done,
order if the court should finally decide that the
some act or acts probably in violation of
applicant was not entitled thereto. Upon approval of
the rights of the applicant respecting the
the requisite bond, a writ of preliminary injunction
subject of the action or proceeding, and
shall be issued. (4a)
tending to render the judgment ineffectual.
(c) When an application for a writ of
Note: Injunction contemplates acts being committed or
preliminary injunction or a temporary restraining
about to be committed, hence it does not lie against acts
order is included in a complaint or any initiatory
already committed.
pleading, the case, if filed in a multiple-sala court,
In the case of preliminary prohibitory injunction, the acts shall be raffled only after notice to and in the
contemplated are acts about to be committed. It does presence of the adverse party or the person to be
not lie against acts already committed or what we call enjoined. In any event, such notice shall be
as fait accompli. preceded, or contemporaneously accompanied, by
service of summons, together with a copy of the
DAYRIT V. DE LOS SANTOS, 18 PHIL, 275 complaint or initiatory pleading and the applicant's
However, even if the act had already been committed, affidavit and bond, upon the adverse party in the
but such acts are continuing in nature and were in Philippines.
derogation of plaintiff’s rights, preliminary mandatory
injunction may be availed of to restore the parties to the However, where the summons could not be
status quo. served personally or by substituted service despite
diligent efforts, or the adverse party is a resident of
Examples: the Philippines temporarily absent therefrom or is a
1. Forcible entry cases nonresident thereof, the requirement of prior or
contemporaneous service of summons shall not
If you filed a case for forcible entry because you
apply.
were dispossessed of the land you own with the use
of force, intimidation, or threat, can you ask for (d) The application for a temporary
preliminary prohibitory injunction? No. But you can restraining order shall thereafter be acted upon only
ask for preliminary mandatory injunction to restore after all parties are heard in a summary hearing
you to your possession of the land. which shall be conducted within twenty-four (24)
hours after the sheriff's return of service and/or the
2. Reconnection of electricity if the act is assailed records are received by the branch selected by
in the main case raffle and to which the records shall be transmitted
If you file a case against VECO because your immediately.
payments were not recorded, you can also ask for
the reconnection of the electricity even if the act of
reconnection is the very act assailed in the main
case. This can be the subject of a preliminary

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REQUIREMENTS NOTE: A TRO is simply an order to maintain the
subject of the controversy in status quo until the hearing
1. The application must be verified, and shows
of an application for a preliminary injunction.
facts entitling the applicant to the relief
demanded. When you ask the court for the issuance of a preliminary
prohibitory injunction, the court will not grant that prayer
2. The applicant must file with the court a bond right away. The court will still hear that prayer. But if it
executed to the party enjoined, in an is very urgent, you can ask for a TRO which the court
amount to be fixed by the court, to answer can grant but is valid only for a very limited time.
for whatever damage the defendant may
Normally, it is the judge handling the main case that will
suffer should the court finds the application
grant the TRO. If you file that case in a multi-sala court,
without merit. Upon the approval of the
the executive judge (the head of all the RTC judges in
bond, the writ shall be issued.
Cebu City) will issue the TRO but it is valid only for 72
hours or 3 days. If the executive judge feels that the act
State there that you are willing to put up a bond
sought to be enjoined requires immediate action
in an amount to be determined by the court.
because it would cause damage on the part of the
Normally, if it involves a property, it would be
applicant, the judge can immediately issue a TRO and
based on the value of the property. That will
order the immediate raffling of the case. Here, both
answer for whatever damage the defendant
parties may attend the raffling.
may have suffered as a result of the issuance
of the injunctive writ. The judge of the branch it was raffled to must
immediately conduct a hearing to determine whether or
3. When an application for a writ of preliminary not to extend the TRO.
injunction or a temporary restraining order
is included in a complaint or any initiatory
pleading, the case, if filed in a multiple-sala TEMPORARY RESTRAINING ORDER (TRO)
court, shall be raffled only after notice to
and in the presence of the adverse party or TRO can be issued ex-party by the court (single sala) if
the person to be enjoined. In any event, it is shown that great and irreparable injury would result
such notice shall be preceded, or to the applicant before the preliminary injunction can be
contemporaneously accompanied, by heard on notice;
service of summons, together with a copy 1. 20-DAY TRO
of the complaint or initiatory pleading and TRO is effective only for a period of 20 days
the applicant's affidavit and bond. from service on the party enjoined;
However, if the party cannot be served with
summons for whatever reason, this 2. 72-HOUR TRO
requirement may be dispensed with. In case of extreme emergency, the Executive
Judge of a multi-sala court may issue ex-parte
This refers to the issuance of a TRO. If the TRO effective only for seventy-two (72) days.
complaint contains a prayer not only for the
issuance of a writ of preliminary injunction but Thereafter, within the 72-hour period, the judge to
also for a TRO, the multi-sala court shall whom the case was raffled to shall conduct a summary
immediately notify the defendant and the hearing to determine whether the TRO shall be
requesting party that the case will be raffled. extended until the application for preliminary injunction
Before the raffling, an order will be issued can be heard. In no case shall the effectivity of the TRO
inviting the parties to attend the raffling so that exceed 20 days, including the 72 hours provided herein.
there will be no hocus pocus. In the past, if mu
file na gani ug injunction, the applicant would
like the case to be raffled to a friendly judge. LIFETIME OF A TRO
Sayon ra kayo i-bribe. 1. RTC – 20 days (including the 72 hours of the
4. The application for a temporary restraining TRO issued by the executive judge)
order shall thereafter be acted upon only 2. CA – 60 days
after all parties are heard in a summary 3. SC – until further orders
hearing which shall be conducted within
twenty-four (24) hours after the sheriff's The applicant must establish:
return of service and/or the records are a. The existence of a clear and unmistakable
received by the branch selected by raffle. right that must be protected; that is, right in
esse

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 b. This right in esse is directly threatened by an exceed twenty (20) days, including the original
act sought to be enjoined seventy-two hours provided herein.
c. A material and substantial invasion of such
In the event that the application for
right; and
preliminary injunction is denied or not resolved within
d. An urgent and paramount necessity for the
the said period, the temporary restraining order is
writ to prevent serious damage.
deemed automatically vacated. The effectivity of a
Right in esse temporary restraining order is not extendible without
need of any judicial declaration to that effect and no
The applicant's right must be clear or unmistakable, court shall have authority to extend or renew the
that is, that the right is actual, clear and positive same on the same ground for which it was issued.
especially calling for judicial protection. An injunction
will not issue to protect a right not in esse and which However, if issued by the Court of Appeals or
may never arise or to restrain an act which does not a member thereof, the temporary restraining order
give rise to a cause of action. shall be effective for sixty (60) days from service on
the party or person sought to be enjoined. A
UP BOC 2020 restraining order issued by the Supreme Court or a
member thereof shall be effective until further orders.
(5a)
PRELIMINARY INJUNCTION NOT GRANTED
WITHOUT NOTICE; EXCEPTION Rule on non-extendibility
In the event that the application for preliminary injunction
is denied or not resolved within the said period, the TRO
SECTION 5. Preliminary Injunction Not is deemed automatically vacated.
Granted Without Notice; Exception.— No preliminary
injunction shall be granted without hearing and prior The effectivity of a TRO is not extendible without need of
notice to the party or person sought to be enjoined. If any judicial declaration to that effect, and no court shall
it shall appear from facts shown by affidavits or by the have authority to extend or renew the same on the same
verified application that great or irreparable injury ground for which it was issued.
would result to the applicant before the matter can be
heard on notice, the court to which the application for DURATION DIFFERS AS PER COURT
preliminary injunction was made, may issue ex 1. If issued by the RTC – the rule against non-
parte a temporary restraining order to be effective extendibility of the 20-day effectiveness is
only for a period of twenty (20) days from service on absolute.
the party or person sought to be enjoined, except as 2. If issued by the CA – Effective for 60 days.
herein provided. Within the said twenty-day period, 3. If issued by the SC – Effective until further orders.
the court must order said party or person to show
cause, at a specified time and place, why the GROUNDS FOR OBJECTION TO, OR FOR MOTION
injunction should not be granted, determine within the OF DISSOLUTION OF, INJUNCTION OR
same period whether or not the preliminary injunction RESTRAINING ORDER
shall be granted, and accordingly issue the
corresponding order. SECTION 6. Grounds for Objection to, or for
Motion of Dissolution of, Injunction or Restraining
However, and subject to the provisions of the Order.— The application for injunction or restraining
preceding sections, if the matter is of extreme order may be denied, upon a showing of its
urgency and the applicant will suffer grave injustice insufficiency. The injunction or restraining order may
and irreparable injury, the executive judge of a also be denied, or, if granted, may be dissolved, on
multiple-sala court or the presiding judge of a single- other grounds upon affidavits of the party or person
sala court may issue ex-parte a temporary restraining enjoined, which may be opposed by the applicant
order effective for only seventy-two (72) hours from also by affidavits. It may further be denied, or, if
issuance but he shall immediately comply with the granted, may be dissolved, if it appears after hearing
provisions of the next preceding section as to service that although the applicant is entitled to the injunction
of summons and the documents to be served or restraining order, the issuance or continuance
therewith. Thereafter, within the aforesaid seventy- thereof, as the case may be, would cause irreparable
two (72) hours, the judge before whom the case is damage to the party or person enjoined while the
pending shall conduct a summary hearing to applicant can be fully compensated for such damages
determine whether the temporary restraining order as he may suffer, and the former files a bond in an
shall be extended until the application for preliminary amount fixed by the court conditioned that he will pay
injunction can be heard. In no case shall the total all damages which the applicant may suffer by the
period of effectivity of the temporary restraining order denial or the dissolution of the injunction or restraining

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 order. If it appears that the extent of the preliminary amount with sufficient sureties approved after
injunction or restraining order granted is too great, it justification is not filed forthwith, the injunction shall
may be modified. (6a) be granted or restored, as the case may be. (8a)
GROUNDS
JUDGMENT TO INCLUDE DAMAGES AGAINST
1. Upon showing of the insufficiency of the
PARTY AND SURETIES
complaint;
2. It may be denied, or if granted, may be SECTION 8. Judgment to Include Damages
dissolved, on other grounds upon affidavit of Against Party and Sureties.— At the trial, the amount
the party enjoined. It may be opposed by the of damages to be awarded to either party, upon the
applicant also by affidavit. (Example is when bond of the adverse party, shall be claimed,
the bond posted by the applicant is insufficient ascertained, and awarded under the
or defective). same procedure prescribed in Section 20 of Rule 57.
3. It may further be denied, or, if granted, may be (9a)
dissolved, if it appears after hearing that
although the applicant is entitled to the
injunction or restraining order, the issuance or WHEN FINAL INJUNCTION GRANTED
continuance thereof, as the case may be, SECTION 9. When Final Injunction
would cause irreparable damage to the
Granted.— If after the trial of the action it appears that
party or person enjoined while the applicant
the applicant is entitled to have the act or acts
can be fully compensated for such damages
complained of permanently enjoined, the court shall
as he may suffer, and the former files a bond
grant a final injunction perpetually restraining the
in an amount fixed by the court conditioned party or person enjoined from the commission or
that he will pay all damages which the
continuance of the act or acts or confirming the
applicant may suffer as a result of the
preliminary mandatory injunction. (10a)
dissolution of the injunction.

Here, the defendant may have it dissolved by Civil Procedure – Synchronous Lecture
offering to put up a counterbond equal to or a January 26, 2021 (Tuesday)
little more to the bond put up by the applicant.
The counterbond shall answer for whatever Q and A
damage the applicant will suffer as a result of
the lifting of the PI. Dean Monte: Jurisdiction over the issue is actually
related to jurisdiction over the subject matter. The case of
A motion for the dissolution of the writ of preliminary
PLDT vs Citi Appliance is a Cebu City case that involves
injunction must be verified.
the City Appliance building in Sanciangko. That was an
The filing of the counter-bond does not necessarily ejectment case, and I will discuss that decision when we
warrant the dissolution of the injunction as the court go to the topic of Ejectment.
has to assess first the probable relative damages.
Recovery of damages for irregular issuance of the PLDT VS. CITI APPLIANCE
injunction is limited to the amount of the bond. G.R. NO. 214546, OCTOBER 09, 2019

The pertinent portion of decision discussing the concept

SERVICE OF COPIES OF BONDS; EFFECT OF is as follows:
DISAPPROVAL OF SAME
"Courts are vested with jurisdiction over the remedy and
SECTION 7. Service of Copies of Bonds; jurisdiction over the subject matter. These types of
Effect of Disapproval of Same.— The party filing a jurisdiction may not be waived by the parties.
bond in accordance with the provisions of this Rule
shall forthwith serve a copy of such bond on the other Jurisdiction over the remedy is different from
party, who may except to the sufficiency of the bond, jurisdiction over the subject matter. Jurisdiction over
or of the surety or sureties thereon. If the applicant's the remedy pertains to the court's competence over
bond is found to be insufficient in amount, or if the the process. This should not be confused with the relief,
surety or sureties thereon fail to justify, and a bond that which the party filing the case wants the court to
sufficient in amount with sufficient sureties approved declare, and which addresses the breach of the right or
after justification is not filed forthwith, the injunction obligation.
shall be dissolved. If the bond of the adverse party is
found to be insufficient in amount, or the surety or The source of jurisdiction is important. Generally,
sureties thereon fail to justify a bond sufficient in jurisdiction over the remedy is provided by the Rules of

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 17 of 19

Court. Thus, it is mainly a procedural matter which this c. In the Court of Tax Appeals, one original (properly
Court—the authority that promulgates the Rules of marked)
Court—may change ad hoc, or clarify the application or and two copies with annexes. On appeal to the En Banc,
interpretation of, in proper cases. one original (properly marked) and eight copies with
annexes; and
Meanwhile, the source of jurisdiction over the subject
matter is generally conferred by law. This is why the d. In other courts, one original (properly marked) with the
doctrine is that this type of jurisdiction cannot be waived stated annexes attached to it. (Efficient Use of Paper
by the parties. Laws can only be amended by a Rule (A.M. 11-9-4-SC)
subsequent law, and nothing that parties do in any case
can change it. Thus, the question of jurisdiction over the Demurrer to Evidence
subject matter can be raised even for the first time on
appeal, not simply because it is jurisdiction over the The denial of a demurrer to evidence is an
subject matter, but mainly because it is the law that interlocutory order and appeal is not the remedy.
prescribes it. Certiorari may be availed of if there is grave abuse of
discretion. However, Sec 2 paragraph 2 of Rule 33
In Special Civil actions, I will include the case of Chief states that the order denying a demurrer to evidence
Justice Sereno on Quo Warranto. shall not be subject to an appeal or certiorari,
prohibition or mandamus.
EUPR Yes, I overlooked that. The New Rules will prevail. It is not
subject to certiorari under Rule 65.
This is in regard to the Rules of Court vis-à-vis the
Efficient Use of Paper Rule (EUPR), if we are going to The order denying a demurrer to evidence shall not be
file in the CA and the SC, which one will prevail? The subject of an appeal or petition for certiorari, prohibition or
ROC which says that it should be 7 copies in the CA mandamus before judgment (Sec 2 Rule 33)
or the one in the EUPR?
The Rules on EUPR will govern because it is a special The remedy then is to proceed to trial and if the defendant
rule and the more recent. It already applied the latest loses, to appeal the judgment and include in the assigned
development of technology. errors, the denial of demurrer to evidence. (UP BOC 2020
p.109)
Sec. 5. Copies to be Filed. - Unless otherwise directed
by the court, the number of court~bound papers that a Consolidation of Criminal and Civil Cases;
party is required or desires to file shall be as follows: Presentation of Evidence
a. In the Supreme Court, one original (properly marked)
and four copies, unless the case is referred to the Court When the criminal and civil cases are consolidated,
En Banc, in which event, the parties shall file ten how will the presentation of evidence be done given
additional copies. For the En Banc, the parties need to that the burden of proof or different? Will we present
submit only two sets of annexes, one attached to the evidence proving the criminal case first then the civil
original and an extra copy. For the Division, the parties or will we integrate everything?
need to submit also two sets of annexes, one attached to It will be integrated. You will not split and say this is the
the original and an extra copy. All members of the Court evidence for the criminal case and this is for the civil case.
shall share the extra copies of annexes in the interest of There is only one case. It will be consolidated and there
economy of paper. will only be one trial but the judge in making the decision,
will make a distinction as to the criminal aspect and the
Parties to cases before the Supreme Court are further civil aspect. He must base it on the quantum of evidence
required, on voluntary basis for the first six months required. In a criminal case, the quantum of evidence is
following the effectivity of this Rule and compulsorily proof beyond reasonable doubt if he wants to convict the
afterwards unless the period is extended, to submit, accused. In a civil case, only mere preponderance of
simultaneously with their court-bound papers, soft copies evidence is required. One trial, one presentation of
of the same and their annexes (the latter in PDF format) evidence.
either by email to the Court's e-mail address or by
compact disc (CD). This requirement is in preparation for Writ of Execution; Supervening Event
the eventual establishment of an e-filing paperless system
in the judiciary. In the instances where the court may refuse to issue
a writ of execution, such as in the case of a
b. In the Court of Appeals and the Sandiganbayan, one supervening event, may the court do so motu proprio
original (properly marked) and two copies with their or does it require a motion from the party?
annexes; It requires a motion. You have to call the attention of the
court.

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In the case of CITY OF BUTUAN V. ORTIZ (G.R. No. L-
18054, December 22, 1961) the petitioner filed a petition
to set aside the order of execution. A supervening
cause or reason that had arisen renders the decision of
the court unenforceable.

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 19 of 19

Monte: Okay class, we will now wind up our discussion RULE 59
on the different provisional remedies under the Rules. We RECEIVERSHIP
have already discussed the first two provisional remedies.
These are preliminary attachment under Rule 57, and Receiver
preliminary injunction under Rule 58. A person appointed by the court on behalf of all the parties
to the action for the purpose of preserving and conserving
So now, we are going to discuss the other provisional the property in litigation and preventing its possible
remedies such as receivership, replevin and support destruction or dissipation if it were left in the possession
pendente lite. of any of the parties. [Normandy v. Duque, G.R. No. L-
25407 (1969)]
Now, let me start off with Rule 59, which is about
receivership. A receiver is not an agent of any party to the action. He is
an officer of the court exercising his functions in the
interest of neither plaintiff nor defendant but for the
common benefit of all the parties in interest. [2 Riano 87-
88, 2016 Bantam Ed.] (UP 2020)

When is receivership available? Or when can a party

avail of the provisional remedy of receivership?
A: Receivership can be availed of also during the
pendency of the case. But unlike preliminary attachment
or preliminary injunction, which can only be availed of
while the case is pending until the court has decided the
case, this provisional remedy of receivership can be
availed of even if there is already a decision of the court,
and the case is already pending appeal before the
appellate court.

Now, how do you avail of this remedy?

A: The availment of the remedy of receivership can be
done by verified application.

Monte: Before, under the old rule, it must be by way of a

petition for receivership. But now, under the new rules,
you can have it by way of a motion if the case is still
pending in court where you asked for receivership. So,
receivership normally is done by verified application
where you ask the court for the appointment of a receiver,
and the receiver here could be one person, two, three or
more persons, depending on the extent of the job to be
done. If it is very complex, then the court may appoint 2
or 3 receivers at a time.

Sec. 1. Appointment of Receiver

Section 1. Appointment of receiver. — Upon a verified

application, one or more receivers of the property subject
of the action or proceeding may be appointed by the court
where the action is pending or by the Court of Appeals or
by the Supreme Court, or a member thereof, in the
following cases:

(a) When it appears from the verified application, and

such other proof as the court may require, that 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, removed, or materially

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 1 of 27

 injured unless a receiver be appointed to administer
and preserve it; b) When it appears in an action for foreclosure of
mortgage initiated by the mortgagee that the property
(b) When it appears in an action by the mortgagee for the is in danger of being dissipated or materially injured,
foreclosure of a mortgage that the property is in and that its value is probably insufficient to discharge
danger of being wasted or dissipated or materially the mortgage debt, or that the parties have so
injured, and that its value is probably insufficient to stipulated in the contract of mortgage;
discharge the mortgage debt, or that the parties have
so stipulated in the contract of mortgage; Monte: So, if in a case for foreclosure of mortgage, if the
debtor fails to pay, the creditor can foreclose the
(c) After judgment, to preserve the property during the mortgage. Now, the foreclosure of the mortgage can be
pendency of an appeal, or to dispose of it according done either: extrajudicially or judicially.
to the judgment, or to aid execution when the
execution has been returned unsatisfied or the If the creditor decided to foreclose the mortgage judicially,
judgment obligor refuses to apply his property in and upon the filing of the complaint for judicial mortgage,
satisfaction of the judgment, or otherwise to carry the the creditor-mortgagee discovers that the mortgaged
judgment into effect; property is already in a state of dissipation or the
mortgagor has allowed it to be dissipated or materially
(d) Whenever in other cases it appears that the injured such that its value is no longer sufficient to
appointment of a receiver is the most convenient and discharge the mortgage debt – the mortgagee can ask the
feasible means of preserving, administering, or court to place the property in receivership. So, it will now
disposing of the property in litigation. be in the custody or in the hands of a receiver so that the
receiver can preserve it until the court can resolve the
During the pendency of an appeal, the appellate court complaint for judicial foreclosure of mortgage.
may allow an application for the appointment of a receiver
to be filed in and decided by the court of origin and the c) After judgment, to preserve the property during the
receiver appointed to be subject to the control of said pendency of an appeal, or to dispose of it according
court. (1a) to the judgment;
When Allowed Monte: Another instance where a receiver may be
appointed is after judgment of the trial court. You can ask
When Allowed: Upon verified application, one or more for the receivership of the property which is the subject
receivers of the property subject of the action may be matter of the case. The subject of the receivership can be
appointed by the court where the case is pending; the the property which is the subject of the case, or the fund
Court of Appeals; or by the Supreme Court in the following which is also subject of the litigation. Money.
cases:
Even on appeal, you can ask the court to preserve the
a) When the applicant has an interest in the property or property during the pendency of the appeal, or to dispose
funds subject of the pending action, and that such of it according to the judgment.
property or fund is in danger of being lost,
removed, or materially injured unless a receiver is d) Whenever in other cases it appears that the
appointed to administer or preserve it; appointment of a receiver is the most convenient
means of preserving or administering the property in
Now, when is receivership availed of or when is it litigation.
necessary?
A: The court may appoint a receiver during the pendency Note: During the pendency of an appeal, the appellate
of the case or while the case is on appeal when a party court may allow an application for the appointment of a
who is called an applicant here, can show that he has an receiver to be filed in and decided by the court of origin,
interest in the property or funds subject of the pending and the receiver appointed to be subject to the control of
action, and that property or that fund is in danger of being the court.
lost, removed, or materially injured unless the court will
appoint a receiver to preserve or administer it. Monte: And the next instance is whenever in other cases,
it appears that the appointment of a receiver is the most
Monte: In other words, the main purpose of receivership convenient means of preserving or administering the
is to preserve the property which is the subject matter of property in litigation.
litigation. So that, when the time comes for the court to
decide, resolving the issue of ownership for example, the Now, if the case is already decided by the trial court, and
property is still preserved. It is no longer in a deteriorated it is appealed to the CA for example, a party may ask the
stage.

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 2 of 27

CA for the appointment of a receiver in order to preserve Note: Receivership may be a principal action itself, or just
the property during the pendency of the appeal. But, when an ancillary remedy.
you file a motion for appointment of a receiver with the
CA, the CA may allow an application for the appointment Monte: So, a receiver does not only represent the party
of a receiver to be filed and decided by and in the court who requested for his appointment, but he actually
of origin, which is the RTC. And the receiver appointed to represents both parties because his job is to preserve the
be subject to the control of the RTC. property which is the subject matter of litigation. So,
whoever wins the case does not matter to the receiver.
Before, in my previous lecture, I mentioned to you the The important thing is the property subject of the case is
residual jurisdiction of the trial court. One of the residual preserved, to be awarded to whoever wins the case.
jurisdiction of the trial court is to appoint a receiver even if
the case is already pending appeal before the CA. Now, receivership may be a principal action itself, or it can
just be an ancillary remedy or provisional remedy. So, you
If the records of the case have already been forwarded to can file a case for receivership as the main action itself.
the CA, the RTC therefore loses jurisdiction. So, where
will you file your motion for the appointment of a receiver? Where and When to Apply for Receivership
You file it now with the CA. But then, the CA may delegate
it or remand it to the RTC for the RTC to be the one to Where
conduct the hearing and decide whether there is a need
for a receiver. While the perfection of an appeal deprives the trial court
of jurisdiction over the case, the trial court can appoint a
If the records have not yet been forwarded to the CA receiver since this does not involve any matter litigated by
despite the pendency of the appeal, the RTC which is the the appeal. This is part of the residual power of the RTC.
court of origin, may still entertain the motion for the The appellate court may allow the application for the
appointment of a receiver as part of its residual appointment of a receiver to be filed in and decided by the
jurisdiction. trial court.
Monte: So, this is the one that I mentioned. Although you
Summary: When Appointment of a Receiver is file the motion for the appointment of a receiver in the CA,
Allowed: the CA may allow the RTC to be the one to decide on the
matter, whether it is to be granted or not.
1) When the applicant has an interest in the property or
funds subject of the pending action, and that such When
property or fund is in danger of being lost, removed,
or materially injured unless a receiver is appointed to Unlike other provisional remedies which can be availed of
administer or preserve it; only before judgment, receivership may be resorted to
even after judgment has become final and executory.
2) When it appears in an action for foreclosure of
mortgage initiated by the mortgagee that the property
When Appointment of a Receiver is Improper
is in danger of being dissipated or materially injured,
and that its value is probably insufficient to discharge
Monte: Now, you can question the appointment of a
the mortgage debt, or that the parties have so
receiver by the court on the following grounds:
stipulated in the contract of mortgage;

3) After judgment, to preserve the property during the The appointment of a Receiver is improper in the
pendency of an appeal, or to dispose of it according following instances:
to the judgment; or
a) When the action is a simple collection of sum of
4) Whenever in other cases it appears that the money case, and not to enforce a lien upon specific
appointment of a receiver is the most convenient property;
means of preserving or administering the property in
litigation. Monte: So, if you file a case for collection of sum of
money against the defendant, you cannot ask the court to
Receiver place the properties of the defendant under receivership
because the properties of the defendant is not the subject
matter of the case. The subject matter of the case is
A receiver is a person appointed by the court in behalf of
recovery of money, not property. So, it’s improper for the
all the parties to an action for the purpose of preserving
court to appoint a receiver in a simple collection case.
the property involved in the suit, and to protect the
rights of all the parties under the direction of the court.

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b) In an action for possession of or title to real property, Sec. 2. Bond on Appointment of Receiver
if there is no clear showing of the necessity to protect
the applicant from grave and irreparable damage; Section 2. Bond on appointment of receiver. — Before
issuing the order appointing a receiver the court shall
Monte: So, if the action is for recovery of property, and require the applicant to file a bond executed to the party
the defendant who is in possession of the property has against whom the application is presented, in an amount
allowed the property to dissipate, or to deteriorate, to be fixed by the court, to the effect that the applicant will
because the defendant knew very well that he is going to pay such party all damages he may sustain by reason of
lose the case, that the plaintiff will be able to prove that he the appointment of such receiver in case the applicant
is the real owner – so he just allowed the property-subject shall have procured such appointment without sufficient
matter of the case to deteriorate. The plaintiff, who is very cause; and the court may, in its discretion, at any time
confident that he can prove his ownership, may ask the after the appointment, require an additional bond as
court to place the property in receivership in order to further security for such damages. (3a)
protect the interest of the plaintiff on the property, and to
protect him from grave or irreparable damage. Sec. 3. Denial of Application or Discharge of
Receiver
c) In an action where the rights of the properties, one of
whom is in possession of the property, depend on the Section 3. Denial of application or discharge of
determination of their respective claim to the title, receiver. — The application may be denied, or the
unless such property is in danger of being materially receiver discharged, when the adverse party files a bond
lost or injured. executed to the applicant, in an amount to be fixed by the
court, to the effect that such party will pay the applicant all
Note: Receivership shall be commenced by a verified damages he may suffer by reason of the acts, omissions,
petition (if receivership is the main action). Now, it can be or other matters specified in the application as ground for
done by a verified motion where it is only an incident to such appointment. The receiver may also be discharged
the main action. if it is shown that his appointment was obtained without
sufficient cause. (4a)
Monte: So, the example of this is the same as what I have
mentioned a while ago. Grounds for Denial of Application or Discharge of
Receiver
So, how do you commence an action for receivership?
The action for receivership can be commenced by a a) If the adverse party will put up a counter-bond in an
verified petition if receivership is the main action itself. But amount to be fixed by the court;
if receivership is just incidental to a main action, then you
can do it by a mere motion. And you file it in the court that b) The receiver appointed may also be discharged if it is
is handling the main action itself. shown that his appointment was obtained without
sufficient cause;
Summary of Instances When the Appointment of a
Receiver is Improper: c) If the bond is insufficient in amount.

1) When the action is a simple collection of sum of When can the court deny your application, or, if the
money case, and not to enforce a lien upon specific court has already granted your application, discharge
property; the receiver?
A: The following are the grounds for denial:
2) In an action for possession of or title to real property,
if there is no clear showing of the necessity to protect 1) If the adverse party will put up a counter-bond in
the applicant from grave and irreparable damage; an amount to be fixed by the court.

3) In an action where the rights of the properties, one of Monte: So, one of the most common way of
whom is in possession of the property, depend on the preventing the grant of receivership is when the
determination of their respective claim to the title, adverse party – the other party opposing the
unless such property is in danger of being materially receivership – will put up a counter-bond.
lost or injured. Because, when you ask the court to put the
property-subject matter of the case under
receivership, you, the applicant, will have to put
up the bond. And the other party, in order to
prevent the grant of receivership, will or may put
up a counter-bond.

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 2) The receiver appointed may also be discharged if Now, what is the effect of the insufficiency of the
it is shown that his appointment was obtained counter-bond?
without sufficient cause; and A: Then, if the counter-bond is insufficient, then the court
will not grant the discharge of the receiver.
3) If the bond is insufficient in amount.
Monte: And the receiver, if the court has discharged him
Monte: This is the bond put up by the applicant and it turns out alter on that the counter-bond set up by
party. the adverse party is not sufficient, or the grounds relied
upon by the adverse party is not sufficient, then the court
Sec. 4. Oath and Bond of Receiver may reappoint the receiver.

Section 4. Oath and bond of receiver. — Before Sec. 6. General Powers of a Receiver
entering upon his duties, the receiver shall be sworn to
perform them faithfully, and shall file a bond, executed to Section 6. General powers of receiver. — Subject to the
such person and in such sum as the court may direct, to control of the court in which the action or proceeding is
the effect that he will faithfully discharge his duties in the pending a receiver shall have the power to bring and
action or proceeding and obey the orders of the court. (5a) defend, in such capacity, actions in his own name; to take
and keep possession of the property in controversy; to
Monte: Now, when a receiver is appointed by the court receive rents; to collect debts due to himself as receiver
the receiver, before he will assume his duties as a or to the fund, property, estate, person, or corporation of
receiver, must have to take an oath before the judge who which he is the receiver; to compound for and
appointed him. compromise the same; to make transfers; to pay
outstanding debts; to divide the money and other property
Sec. 5. Service of Copies of Bonds; Effect of that shall remain among the persons legally entitled to
Disapproval of the Same receive the same; and generally to do such acts
respecting the property as the court may authorize.
Section 5. Service of copies of bonds; effect of However, funds in the hands of a receiver may be
disapproval of same. — The person filing a bond in invested only by order of the court upon the written
accordance with the provisions of this Rule shall forthwith consent of all the parties to the action. (7a)
serve a copy thereof on each interested party, who may
except to its sufficiency or of the surety or sureties No action may be filed by or against a receiver without
thereon. If either the applicant's or the receiver's bond is leave of the court which appointed him. (n)
found to be insufficient in amount, or if the surety or
sureties thereon fail to justify, and a bond sufficient in General Powers of the Receiver
amount with sufficient sureties approved after justification
is not filed forthwith, the application shall be denied or the The receiver can:
receiver discharged, as the case may be. If the bond of
the adverse party is found to be insufficient in amount or 1) Bring and defend actions in his own name;
the surety or sureties thereon fail to justify, and a bond 2) Take and keep possession of the property in
sufficient in amount with sufficient sureties approved after controversy;
justification is not filed forthwith, the receiver shall be 3) To receive rents;
appointed or re-appointed, as the case may be. (6a) 4) To collect indebtedness as a receiver;
5) To enter into compromise agreements;
Monte: The applicant party must furnish a copy of his 6) To make transfers of the property under
motion to the adverse party together with the bond or receivership;
receivership bond that he put up. 7) To pay debts;
8) To divide the money or property that shall remain
Effect of Insufficiency of the Counter-bond or His to those legally entitled to; and
Surety Fails to Justify 9) To invest the funds received as receiver, but only
by order of the court upon written consent of all
The receiver may be appointed or re-appointed, as the the parties to the action.
case may be.
Monte: The receiver of a property is actually given
Note: No action may be filed by or against a receiver tremendous power on his job to preserve the property. He
without the leave of the court which appointed him. is actually like an administrator of the property.

Now, one good example of the appointment of a receiver

is when there is a bank on the verge of bankruptcy. That
bank will be placed under receivership under the Central

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 5 of 27

Bank. The receiver appointed shall have the power to Termination of receivership, when?
collect any indebtedness of other persons to the bank.
The receiver has the power to pay the indebtedness of the When the necessity for a receiver no longer exists. This
bank; to bring action against the debtors of the bank; the can be done by the court (1) motu propio or (2) by motion.
power to take and keep possession of the property
belonging to the bank. If some properties of the bank are Sec. 9. Compensation of the Receiver
being rented out, he is the one who will collect the rentals.
And he can file a case in and on behalf of the bank, and Section 9. Judgment to include recovery against
he can even enter into compromise agreements with the sureties. — The amount, if any, to be awarded to any
defendant. He can even invest the money of the bank, but party upon any bond filed in accordance with the
he must have to get the written consent of all the parties provisions of this Rule, shall be claimed, ascertained, and
and also of the court because it must be done by order of granted under the same procedure prescribed in Section
the court. So, these are the powers of the receiver. 20 of Rule 57. (9a)
Sec. 7. Liability for Refusal or Neglect To Delivery
Monte: The receiver performs a delicate job in favor of
Property to the Receiver
both the parties. And that is the important job of
preserving the property under litigation. So because of
Section 7. Liability for refusal or neglect to deliver that, the receiver is entitled to compensation.
property to receiver. — A person who refuses or
neglects, upon reasonable demand, to deliver to the Now, who will pay the receiver for his services?
receiver all the property, money, books, deeds, notes, A: The compensation of the receiver shall be taxed as
bills, documents and papers within his power or control, cost to the defeated party, or it shall be apportioned, as
subject of or involved in the action or proceeding, or in justice requires.
case of disagreement, as determined and ordered by the
court, may be punished for contempt and shall be liable RULE 60
to the receiver for the money or the value of the property REPLEVIN
and other things so refused or neglected to be
surrendered, together with all damages that may have
Replevin is the provisional remedy seeking for the
been sustained by the party or parties entitled thereto as
possession of the property prior to the determination of
a consequence of such refusal or neglect. (n)
the main action for replevin. [BA Finance Corp. v. CA,
G.R. No. 102998 (1996)]
Contempt for Disobeying the Receiver
Replevin may also be a main action with the ultimate goal
Monte: Now, if the receiver will ask a person to deliver the of recovering personal property capable of manual
property belonging to the bank under receivership, and delivery wrongfully detained by a person. In this sense, it
that person refused to obey the request of the receiver, is a suit in itself. [BA Finance Corp. v. CA, G.R. No.
that person can be cited in contempt of court. 102998 (1996)] (UP 2020)
Of course, it is not the receiver who will cite him in
Monte: Now, let’s move on to another provisional remedy
contempt, but it is the court who appointed the receiver.
under Rule 60. Now, replevin is an action for the recovery
So, the receiver will just refer the matter to the court, and
of a person property. It could be the main action itself, or
the court will be the one to impose the corresponding
it could be a provisional remedy.
penalty to that disobedient person.
Sec. 1. Application
Sec. 8. Termination of the Receivership

Section 8. Termination of receivership; compensation Section 1. Application. — A party praying for the
of receiver. — Whenever the court, motu proprio or on recovery of possession of personal property may, at the
motion of either party, shall determine that the necessity commencement of the action or at any time before
for a receiver no longer exists, it shall, after due notice to answer, apply for an order for the delivery of such
all interested parties and hearing, settle the accounts of property to him, in the manner hereinafter provided. (1a)
the receiver, direct the delivery of the funds and other
property in his possession to the person adjudged to be When it can be availed of:
entitled to receive them and order the discharge of the
receiver from further duty as such. The court shall allow At the commencement of an action for recovery of
the receiver such reasonable compensation as the possession of personal property OR before an answer
circumstances of the case warrant, to be taxed as costs thereto, the plaintiff may ask the court for an order for the
against the defeated party, or apportioned, as justice delivery of such property to him (replevin).
requires. (8a)

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Monte: So, it can be availed of by the applicant before the Cannot be availed of
defendant has filed his answer. And the main action here when property is in
Can be availed of when
is for recovery of possession of personal property filed by custodia legis [Montesa
property is in custodia
the plaintiff against the defendant. v.
legis [Sec. 7, Rule 57]
Manila Cordage. G.R. L-
Note: Replevin cannot be availed of if the property is in 44537 (1978)]
custodia legis, unlike in attachment. Available from
Available before
commencement but
defendant answers [Sec.
Distinguish Replevin from Attachment before entry of judgment
1, Rule 60]
[Sec. 1, Rule 57]
Replevin Attachment Bond is double the value
Bond is fixed by the court
Attachment can be of the property [Sec. 2(d),
Replevin can be availed of [Sec. 4, Rule 57]
availed of even if the Rule 60]
only when the principal
recovery of personal
action is for recovery of Sec. 2. Affidavit and Bond
property is only incidental
personal property.
to the main action.
Replevin can be asked Attachment can be Section 2. Affidavit and bond. — The applicant must
only if the defendant is in availed of even if the show by his own affidavit or that of some other person
actual possession of the personal property is in the who personally knows the facts:
subject property. custody of third person.
Replevin extends only to Attachment applies to any (a) That the applicant is the owner of the property
personal property capable property whether real, claimed, particularly describing it, or is entitled to the
of manual delivery. personal or incorporeal. possession thereof;
In attachment it is
Replevin can be availed of (b) That the property is wrongfully detained by the
presupposed that the
even if the property is not adverse party, alleging the cause of detention thereof
subject property is
being concealed, according to the best of his knowledge, information,
concealed or disposed of
removed or disposed of. and belief ;
to prevent its being found.

UP 2020: Replevin vs. Preliminary Attachment (c) That the property has not been distrained or taken for
a tax assessment or a fine pursuant to law, or seized
Replevin Preliminary Attachment under a writ of execution or preliminary attachment,
The purpose is to have or otherwise placed under custodia legis, or if so
The purpose is to recover seized, that it is exempt from such seizure or custody;
the property put in the
personal property and
custody of the court to
capable
secure the satisfaction of
of manual delivery from (d) The actual market value of the property.
the judgment that may be
the defendant [1
rendered in favor of the
Regalado 753, 2010 Ed.]
plaintiff [Sec. 1, Rule 57] The applicant must also give a bond, executed to the
The property either adverse party in double the value of the property as stated
belongs to the plaintiff The property does not in the affidavit aforementioned, for the return of the
OR one over which the belong to the plaintiff but property to the adverse party if such return be adjudged,
plaintiff has a right of to the defendant. [1 and for the payment to the adverse party of such sum as
possession. [Sec. 2, Rule Regalado 753, 2010 Ed.] he may recover from the applicant in the action. (2a)
60]
May be sought only when Available even if recovery Affidavit and Its Contents
the principal action is for of property is only
the recovery of personal incidental to the relief Monte: Now, when you apply for a replevin, the rules
property [1 Regalado sought property [1 require that you must have to execute an affidavit in
753, 2010 Ed.] Regalado 753, 2010 Ed.] support of your replevin.
Can be sought only when
the defendant is in actual May be resorted to even The applicant must show by his own affidavit the following
or constructive if property is in facts:
possession of the possession of a third
property [1 Regalado person [1 Regalado 753, 1) That he is the owner of the property claimed and that
753, 2010 Ed.] he is entitled to possession thereof;
2010 Ed.]

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2) That the property is wrongfully detained by the must demand its delivery, and if it be not delivered, he
adverse party; must cause the building or enclosure to be broken open
and take the property into his possession. After the sheriff
3) That the property has not been distrained or taken for has taken possession of the property as herein provided,
a tax assessment or a fine, or seized under execution he must keep it in a secure place and shall be responsible
or attachment, or under custodia legis; and for its delivery to the party entitled thereto upon receiving
his fees and necessary expenses for taking and keeping
Monte: So, the property to be recovered by way of a the same. (4a)
writ of replevin must not be subject to an existing lien,
or it is not being distrained by the government for Duty of the Sheriff
payment of a tax delinquency, or it is not seized by
the court by levy on execution, or attachment, or Once the writ is issued, it is the duty of the sheriff to
custodia legis. immediately serve a copy of the order and the writ to the
adverse party, and take the property and retain it in his
4) The actual market value of the property. custody.

Monte: Why is it important to state the value of the If the property is concealed in the building, he must
property? Because, that will be the basis for publicly demand its delivery. Otherwise, he may cause the
determining the replevin bond. building or enclosure to be broken open, and take the
property into his possession. He must keep it in a safe
Replevin Bond place and later on deliver it to the applicant after receiving
his fees and necessary expenses.
The applicant must give a bond, executed to the adverse
party in double the value of the property as stated in the Sec. 5. Return of the Property
affidavit.
Section 5. Return of property. — If the adverse party
Monte: When you apply for a replevin, you will have to objects to the sufficiency of the applicant's bond, or of the
pay a replevin bond. And the applicant must give a bond surety or sureties thereon, he cannot immediately require
in double the value of the property as stated in the the return of the property, but if he does not so object, he
affidavit. may, at any time before the delivery of the property to the
applicant, require the return thereof, by filing with the court
Sec. 3. Order where the action is pending a bond executed to the
applicant, in double the value of the property as stated in
Section 3. Order. — Upon the filing of such affidavit and the applicant's affidavit for the delivery thereof to the
approval of the bond, the court shall issue an order and applicant, if such delivery be adjudged, and for the
the corresponding writ of replevin, describing the personal payment of such sum, to him as may be recovered
property alleged to be wrongfully detained and requiring against the adverse party, and by serving a copy of such
the sheriff forthwith to take such property into his custody. bond on the applicant. (5a)
(3a)
Return of Property
Order of the Court
Monte: Now, the property that was taken by the plaintiff
Upon approval of the bond, the court will issue an order through replevin may be returned to the defendant if the
granting the writ of replevin. replevin is found to be defective.

Monte: Once issued, it will now be given to the sheriff, The adverse party may, at any time before the delivery of
and it is now the job of the sheriff to implement the writ of the property to the applicant, require the return thereof by
replevin. filing with the court a bond (counter-bond) executed to
the applicant in double the value of the property as
Sec. 4. Duty of the Sheriff stated in the applicant’s affidavit.

Section 4. Duty of the sheriff. — Upon receiving such Kung pilay replevin bond gi put-up sa plaintiff-applicant,
order, the sheriff must serve a copy thereof on the counteran sad na sa defendant ug bond in the same
adverse party, together with a copy of the application, amount in order to prevent the delivery of the property to
affidavit and bond, and must forthwith take the property, if the applicant.
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

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If property is claimed by third persons (See also Sec. The sheriff shall not be liable for damages, for the taking
7 of this Rule) or keeping of such property, to any such third-party
claimant if such bond shall be filed. Nothing herein
The rule is the same as “terceria”, or levy on execution or contained shall prevent such claimant or any third person
attachment. (Sec. 16, Rule 39) from vindicating his claim to the property, or prevent the
applicant from claiming damages against a third-party
Sec. 6. Disposition of Property by the Sheriff claimant who filed a frivolous or plainly spurious claim, in
the same or a separate action.
Section 6. Disposition of property by sheriff. — If
within five (5) days after the taking of the property by the When the writ of replevin is issued in favor of the Republic
sheriff, the adverse party does not object to the sufficiency of the Philippines, or any officer duly representing it, the
of the bond, or of the surety or sureties thereon; or if the filing of such bond shall not be required, and in case the
adverse party so objects and the court affirms its approval sheriff is sued for damages as a result of the replevin, he
of the applicant's bond or approves a new bond, or if the shall be represented by the Solicitor General, and if held
adverse party requires the return of the property but his liable therefor, the actual damages adjudged by the court
bond is objected to and found insufficient and he does not shall be paid by the National Treasurer out of the funds to
forthwith file an approved bond, the property shall be be appropriated for the purpose. (7a)
delivered to the applicant. If for any reason the property is
not delivered to the applicant, the sheriff must return it to Sec. 8. Return of Papers
the adverse party. (6a)
Section 8. Return of papers. — The sheriff must file the
Disposition of Property by Sheriff order, with his proceedings indorsed, thereon, with the
court within ten (10) days after taking the property
Monte: Now, how will the sheriff dispose of the property mentioned therein. (8a)
that is taken by a writ of replevin?
The sheriff must make a return within ten (10) days to the
If within five (5) days after taking, no objection is raised court that issued the writ.
by the adverse party as to the sufficiency of the bond, or
of the surety thereon; or, if the adverse party objects by Monte: “Make a return” means he must have to report to
the court affirms the applicant’s bond, the property shall the court how the writ was implemented by him, whether
be delivered to the applicant. he was successful in getting the property, or if he was not
successful in taking the property.
If, for any reason, the property is not delivered to the
applicant, the sheriff must return it to the adverse party. In chattel mortgage, if mortgagor defaulted in paying but
refused to surrender the mortgaged personal property to
Sec. 7. Proceedings where property claimed by third the mortgagee, the latter may file a replevin case to
person secure possession of the property in preparation to the
foreclosure sale.
Section 7. Proceedings where property claimed by
third person. — If the property taken is claimed by any Monte: Like, for example, in the contract of mortgage – in
person other than the party against whom the writ of the deed of real estate mortgage – it was stated there that
replevin had been issued or his agent, and such person upon failure of the defendant-mortgagor to pay the loan
makes an affidavit of his title thereto, or right to the obligation upon maturity, the creditor-mortgagee has the
possession thereof, stating the grounds therefor, and right to take possession of the mortgaged property and
serves such affidavit upon the sheriff while the latter has proceed to extrajudicial foreclosure. Now when this
possession of the property and a copy thereof upon the happens, the creditor now wanted to extrajudicially
applicant, the sheriff shall not be bound to keep the foreclose the property but he could not get hold of the
property under replevin or deliver it to the applicant unless property because the mortgagor-debtor refused to
the applicant or his agent, on demand of said sheriff, shall surrender it to him.
file a bond approved by the court to indemnify the third-
party claimant in a sum not less than the value of the So, the creditor-mortgagee may resort to an action for
property under replevin as provided in Section 2 hereof. replevin. He may ask the court to get the property
In case of disagreement as to such value, the court shall because that is necessary in preparation to the
determine the same. No claim for damages for the taking foreclosure sale.
or keeping, of the property may be enforced against the
bond unless the action therefor is filed within one hundred The writ of replevin may be served anywhere in the
twenty (120) days from the date of the filing of the bond. Philippines.

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Monte: It is not subject to the territorial jurisdiction of the remedies, as provided in Sec. 20, Rule 57; Sec. 8, Rule
issuing court, or it is not subject to the regional jurisdiction 58 and Sec. 9, Rule 59.
of the issuing court.
Even where the judgment is that the defendant is entitled
Sec. 9. Judgment to the property, but no order was made requiring the
plaintiff to return it or assessing damages in default of
Section 9. Judgment. — After trial of the issues the court return, there could be no liability on the part of the sureties
shall determine who has the right of possession to and the until judgment was entered that the property should be
value of the property and shall render judgment in the restored. [Sapugay et. al. v. CA, G.R. No. 86792 (1990)]
alternative for the delivery thereof to the party entitled to (UP 2020)
the same, or for its value in case delivery cannot be made,
and also for such damages as either party may prove,
with costs. (9a)

Judgment
After trial of the issues, the court shall determine who has
the right of possession to and the value of the property
and shall render judgment for the delivery of:

a. The property itself to the party entitled to the same, or

b. Its value in case delivery cannot be made, and

c. For such damages as either party may prove, with

costs. (UP 2020)

Sec. 10. Judgment to Include Recovery Against

Sureties

Section 10. Judgment to include recovery against

sureties. — The amount, if any, to be awarded to any
party upon any bond filed in accordance with the
provisions of this Rule, shall be claimed, ascertained, and
granted under the same procedure as prescribed in
section 20 of Rule 57. (10a)

Recovering damages on an applicant’s bond;

Requirements

a. The defendant-claimant has secured a favorable

judgment the main action, meaning that the plaintiff
has no cause of action and was not entitled to the
replevin;

b. The application for damages, showing claimant’s right

thereto and the amount thereof, be filed in the same
action before trial or before appeal is perfected or
before the judgment becomes executory;

c. Due notice be given to the other party and his surety

or sureties, notice to the principal not being sufficient;

d. A proper hearing and the award for damages should

be included in the final judgment. [DBP v. Carpio,
G.R. No. 195450 (2017)]

Note: DBP v. Carpio states that the same requirements

apply when recovering damages under other provisional

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 RULE 61 2) The comment shall be verified;
SUPPORT PENDENTE LITE
3) It shall also be accompanied by affidavits,
Support pendente lite is a proceeding where the amount depositions, or other authentic documents in support
of support is provisionally fixed by the court in favor of the thereof.
person or persons entitled thereto during the pendency of
an action for support or any applicable principal action. Sec. 3. Hearing
(Riano, 2016)
Section 3. Hearing. — After the comment is filed, or after
Monte: And lastly, we have the fifth provisional remedy, the expiration of the period for its filing, the application
and this is called support pendente lite. shall be set for hearing not more than three (3) days
thereafter. The facts in issue shall be proved in the same
“Pendete lite” means during the pendency of the action manner as is provided for evidence on motions. (4a)
for support.
Hearing
Sec. 1. Application
The application must be set for hearing not more than
Section 1. Application. — At the commencement of the three (3) days after the comment is filed, or after the
proper action or proceeding, or at any time prior to the expiration of the time for its filing.
judgment or final order, a verified application for support
pendente lite may be filed by any party stating the Note: This provisional remedy is available only in an
grounds for the claim and the financial conditions of both action for support OR where one of the reliefs sought is
parties, and accompanied by affidavits, depositions or support for the applicant.
other authentic documents in support thereof. (1a)
Sec. 4. Order
Application for Support Pendente Lite
Section 4. Order. — The court shall determine
1) It must be filed at the commencement or before the provisionally the pertinent facts, and shall render such
judgment of a case; orders as justice and equity may require, having the
regard to the probable outcome of the case and such
2) It must be verified, stating the grounds for the claim other circumstances as may aid in the proper resolution
and the financial condition of both parties; of the question involved. If the application is granted, the
court shall fix the amount of money to be provisionally
3) It must be accompanied by affidavits, depositions or paid or such other forms of support as should be provided,
other authentic documents in support thereof. taking into account the necessities of the applicant and
the resources or means of the adverse party, and the
Monte: So, support pendente lite is a provisional remedy terms of payment or mode for providing the support. If the
that you can avail of only in an action for support. So, application is denied, the principal case shall be tried and
there must be a main case and the main case is for decided as early as possible. (5a)
support.
Sec. 5. Enforcement of Order
Sec. 2. Comment
Section 5. Enforcement of order. — If the adverse party
Section 2. Comment. — A copy of the application and all fails to comply with an order granting support pendente
supporting documents shall be served upon the adverse lite, the court shall, motu proprio or upon motion; issue an
party, who shall have five (5) days to comment thereon order of execution against him, without prejudice to his
unless a different period is fixed by the court upon his liability for contempt. (6a)
motion. The comment shall be verified and shall be
accompanied by affidavits, depositions or other authentic When the person ordered to give support pendente lite
documents in support thereof. (2a, 3a) refuses or fails to do so, any third person who furnished
that support to the applicant may, after due notice and
Comment hearing in the same case obtain a writ of execution to
enforce his right of reimbursement against the person
1) After receipt of a copy of the application and other ordered to provide such support. (h)
supporting papers, the adverse party shall have five
(5) days to file his comment, UNLESS a different
period is fixed by the court;

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 Effect of Non-Compliance basis of support, which is his filiation, or in the case in the
first example which is the marriage, is now in issue. And
Now, what is the effect of non-compliance by the therefore, since it has not yet been established, because
defendant? it still has to be heard on the merits of the case, no support
A: If the adverse party who is order to provide support pendente lite can be awarded by the court.
pendente lite fails to comply with the order for provisional
support, the court shall, motu propio or upon motion, Sec. 6. Support in Criminal Cases
issue an order of execution without prejudice to his
liability for contempt. Section 6. Support in criminal cases. — In criminal
actions where the civil liability includes support for the
Monte: So, he may be cited in contempt and the court offspring as a consequence of the crime and the civil
may issue a writ of execution directing the sheriff to look aspect thereof has not been waived, reserved and
for properties of the defendant that the sheriff can attach instituted prior to its filing, the accused may be ordered to
or levy on execution. provide support pendente lite to the child born to the
offended party allegedly because of the crime. The
If a third person furnishes the support required because application therefor may be filed successively by the
of failure of the adverse party to provide support, said third offended party, her parents, grandparents or guardian
person has the right to demand for reimbursement by and the State in the corresponding criminal case during
way of writ of execution. its pendency, in accordance with the procedure
established under this Rule. (n)
Support, Provisional in Nature
Support in Criminal Cases
Support here is provisional in nature and the actual
amount and the terms of its payments shall be determined 1) Rape
in the final judgment. 2) Seduction
3) Abduction
Monte: So, support pendente lite is only provisional. The
court will say, “Okay, in the meantime that this case for Note: Support pendente lite in these cases can be
support is pending in court, I will order the defendant to granted by the court, but only if the civil aspect is deemed
provide you the amount of P3k per month.” That is only impliedly instituted with the criminal action.
provisional. That is not yet the final amount of support
because it is a provisional remedy. Sec. 7. Restitution

Where the right to support is in issue by the pleadings or Section 7. Restitution. — When the judgment or final
the fact from which the right of support arises is in order of the court finds that the person who has been
controversy or has not been established, the court cannot providing support pendente lite is not liable therefor, it
grant support pendente lite. shall order the recipient thereof to return to the former the
amounts already paid with legal interest from the dates of
Monte: Meaning, if the plaintiff demanded support from actual payment, without prejudice to the right of the
the defendant because according to the plaintiff she is the recipient to obtain reimbursement in a separate action
legal wife of the defendant, and that the defendant from the person legally obliged to give the support. Should
abandoned her, and they are already separated de facto, the recipient fail to reimburse said amounts, the person
nagbuwag sila; but the defendant in his answer says, who provided the same may likewise seek reimbursement
“You are not my wife. I did not marry you; there was no thereof in a separate action from the person legally
marriage. Naglive-in ra ta.” obliged to give such support. (n)

So, in other words, the basis for support which is marriage Monte: There is restitution in case the person who has
is now denied, therefore no support pendente lite can be been providing support pendente lite is later on found not
had. liable therefore.

The same is true if the action is for the recognition of the So, if you were providing support pendente lite but later
plaintiff as the illegitimate child of the defendant. Plaintiff on, you were able to prove that you were not liable to
filed a case against the defendant claiming that he is the provide support pendente lite, then, restitution shall be
latter’s illegitimate child. The defendant denied filiation done. Meaning, whatever is received must be returned to
with the plaintiff. The defendant says, “I am not your you.
father. You are not my illegitimate child.”
So, thank you, I think that’s all for Provisional Remedies.
Can the plaintiff during the pendency of that case ask for Next time, we will begin with Special Civil Actions.
support pendente lite? The answer is no because the

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 SPECIAL CIVIL ACTIONS 4. The plaintiff has no claim upon the subject
matter of the adverse claims or if he has an
Special civil actions are like ordinary civil actions but with interest at all, such interest is not disputed by
certain rules. the claimants.
UP BOC 2020, P. 196
KINDS OF SPECIAL CIVIL ACTIONS
1. Rule 62 – Interpleader ORDER
2. Rule 63 – Declaratory Relief
3. Rule 64 – Review of Judgment of COMELEC and SECTION 2. Order.— Upon the filing of the
COA complaint, the court shall issue an order requiring the
4. Rule 65 – Certiorari, Prohibition, and Mandamus conflicting claimants to interplead with one another. If
5. Rule 66 – Quo Warranto the interests of justice so require, the court may direct
6. Rule 67 – Expropriation in such order that the subject matter be paid or
7. Rule 68 – Foreclosure of REM delivered to the court. (2a, R63)
8. Rule 69 – Partition
9. Rule 70 – Forcible Entry and Unlawful Detainer Requiring the conflicting claimants to interplead with one
10. Rule 71 – Contempt of Court another.
RULE 62 If you file a special civil action for interpleader, the court,
INTERPLEADER if it finds your petition to be sufficient in form and
substance, will require the conflicting claimants to
WHEN PROPER interplead with one another. The court will then issue
SECTION 1. When Interpleader Proper.— summons to serve upon the conflicting claimants together
Whenever conflicting claims upon the same subject with a copy of your complaint for interpleader.
matter are or may be made against a person who
claims no interest whatever in the subject matter, or an SUMMONS
interest which in whole or in part is not disputed by the
claimants, he may bring an action against the
SECTION 3. Summons.— Summons shall be
conflicting claimants to compel them to interplead and
served upon the conflicting claimants, together with a
litigate their several claims among themselves. (1a,
copy of the complaint and order. (3, R63)
R63)
To be served upon the conflicting claimants, together with
It is proper only when there is conflicting claim upon the
a copy of the complaint and order.
same subject matter upon a person who claims no
interest thereof. MOTION TO DISMISS
There is a person who is in possession of a property but
SECTION 4. Motion to Dismiss.— Within the
he does not claim to be the owner. He is obliged to deliver
time for filing an answer, each claimant may file a motion
this property to the real owner but the problem is there are
to dismiss on the ground of impropriety of the interpleader
two or more claimants. To whom will he deliver the
property? The person will have to seek the assistance of action or on other appropriate grounds specified in Rule
the court by filing a special civil action of interpleader. You 16. The period to file the answer shall be tolled and if the
motion is denied, the movant may file his answer within
let these two or more claimants interplead for them to
the remaining period, but which shall not be less than five
prove their ownership of the property. You will deliver the
(5) days in any event, reckoned from notice of denial. (n)
property to whoever is adjudged to be the owner. The
subject matter of an interpleader is a property or it could
be an obligation to perform a particular act where there If the claimants feel that the filing of the interpleader is
are two or more claimants demanding for you to do that inappropriate, they can file a motion to dismiss anchored
act because it will redound to their benefit. The best on any of the grounds in Rule 16(1). But considering Rule
remedy then is interpleader. 16 is already deleted in the 2019 amendments, you can
no longer do this EXCEPT on the grounds allowed by the
Requisites for Interpleader 2019 amendments. Of the ten grounds in Rule 16, only
1. There must be 2 or more claimants with adverse three were retained:
or conflicting interest. a. Lack of jurisdiction over the subject matter
2. The conflicting claims involves the same subject b. Litis Pendentia
matter. c. Res Judicata + Prescription
3. The conflicting claims are made against the
same person.

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 ANSWER RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES
SECTION 5. Answer and Other Pleadings. —
Each claimant shall file his answer setting forth his claim WHO MAY FILE
within fifteen (15) days from service of the summons upon
him, serving a copy thereof upon each of the other SECTION 1. Who May File Petition.— Any
conflicting claimants who may file their reply thereto as person interested under a deed, will, contract or other
provided by these Rules. If any claimant fails to plead written instrument, or whose rights are affected by a
within the time herein fixed, the court may, on motion, statute, executive order or regulation, ordinance, or any
declare him in default and thereafter render judgment other governmental regulation may, before breach or
barring him from any claim in respect to the subject violation thereof, bring an action in the appropriate
matter. Regional Trial Court to determine any question of
The parties in an interpleader action may file construction or validity arising, and for a declaration of his
counterclaims, cross-claims, third-party complaints and rights or duties, thereunder.
responsive pleadings thereto, as provided by these Rules. An action for the reformation of an instrument,
(4a, R63) to quiet title to real property or remove clouds therefrom,
or to consolidate ownership under Article 1607 of
Answer to the Interpleader – within 15 days or balance the Civil Code, may be brought under this Rule. (1a, R64)
after denial of the motion to dismiss but not less than 5
days. There exists a deed, a will, a contract, or an instrument
Normally, in a case for interpleader now, the defendant which defines your right. But this deed, contract, or written
will have to answer and incorporate those grounds of a instrument is quite vague in defining your right so you
motion to dismiss in his/her answer. don’t know what really are your rights. You can go to court
and ask the court to interpret this deed, will, contract, or
DETERMINATION other written instrument and determine what are your
rights. This remedy of declaratory relief will likewise apply
SECTION 6. Determination.— After the to laws, statutes enacted by Congress, executive orders
pleadings of the conflicting claimants have been filed, and issued by the president, or any regulation, ordinance
pre-trial has been conducted in accordance with the promulgated by the local government units.
Rules, the court shall proceed to determine their
respective rights and adjudicate their several claims. (5a, Declaratory relief is also applicable if there is a law but
R63) your rights under this law are not clear or is ambiguous.
You may go to court and raise the issue of interpretation.
Determination - After pre-trial, Decision You should not proceed right away to act according to
your own interpretation because it may be wrong and you
DOCKET AND OTHER LAWFUL FEES, COSTS AND will be violating the law or the deed, will, contract, or that
LITIGATION EXPENSES AS LIENS written instrument. The safest thing to do is to let the court
interpret.
SECTION 7. Docket and Other Lawful Fees,
Costs and Litigation Expenses as Liens.— The docket Where to file Declaratory Relief
and other lawful fees paid by the party who filed a GR: Exclusive and original jurisdiction is with the RTC
complaint under this Rule, as well as the costs and since the subject in this petition is incapable of pecuniary
litigation expenses, shall constitute a lien or charge upon estimation.
the subject matter of the action, unless the court shall The SC has no original jurisdiction over these petitions,
order otherwise. (6a, R63) only appellate jurisdiction.
When you file a petition for interpleader, you also have to UP BOC 2020, p. 190
pay the cost, filing fee, and other lawful fees.
Since you are not the owner of the property being SIMILAR REMEDIES
litigated, you merely asked the court to let the several
claimants interplead then you should be the one to pay for 1. Reformation of Instrument under Articles 1359 to
these costs. But since you are the one who filed, you will 1369 of the Civil Code;
be the one to pay the filing fees and other lawful fees. This Reformation is a remedy in equity, whereby a written
will later on be charged as costs against the one who lost instrument is made or construed so as to express or
the case. conform to the real intention of the parties, where
some error or mistake has been committed.

2. Quieting of Title under Articles 476 to 481 of the

Civil Code;

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 Whenever there is a cloud on title to real property or All persons who have a claim or interest on the deed, will,
any interest therein, by reason of any instrument, contract, or statute can be made a party.
record, claim, encumbrance or proceeding which is
apparently valid or effective but is in truth and in fact NOTICE TO SOLICITOR GENERAL
invalid, ineffective, voidable, or unenforceable, and
may be prejudicial to said title, an action may be SECTION 3. Notice on Solicitor General.—
brought to remove such cloud or to quiet the title. In any action which involves the validity of a statute,
executive order or regulation, or any other governmental
3. Consolidation of Ownership under Article 1607 of regulation, the Solicitor General shall be notified by the
the Civil Code. party assailing the same and shall be entitled to be heard
The action brought to consolidate ownership is not for upon such question. (3a, R64)
the purpose of consolidating the ownership of the
property in the person of the vendee or buyer but for Notice is required only if the question involves a statute,
the registration of the property. The lapse of the executive order or regulation, or other governmental
redemption period without the seller a retro exercising regulations.
his right of redemption consolidates ownership or title
upon the person of the vendee by operation of law. LOCAL GOVERNMENT ORDINANCES

These three remedies are similar to declaratory relief. SECTION 4. Local Government
That is why the rules laid down in Rule 63 does not only Ordinances.— In any action involving the validity of a
apply to declaratory relief but also to these other similar local ordinance, the corresponding prosecutor or attorney
remedies. of the local governmental unit involved shall be similarly
notified and entitled to be heard. If such ordinance is
REQUISITES FOR DECLARATORY RELIEF alleged to be unconstitutional, the Solicitor General shall
also be notified and entitled to be heard. (4a, R64)
1. The subject matter of the controversy must be a
deed, will, contract, statute, etc.
If what you are questioning is the validity of a local
ordinance, you must furnish a copy of the petition to the
2. The terms of said documents and the validity
attorney of that local government (city attorney or city
thereof is doubtful and require judicial
prosecutor).
interpretation.
COURT ACTION DISCRETIONARY
3. There must have been no breach of the document
in question.
If you have already violated the law or the deed that SECTION 5. Court Action Discretionary. —
you are asking for the court to interpret, you can no Except in actions falling under the second paragraph of
longer avail of declaratory relief. It will now fall under Section 1 of this Rule, the court, motu proprio or upon
an ordinary civil action. motion, may refuse to exercise the power to declare rights
and to construe instruments in any case where a decision
4. There must be an actual justiciable controversy would not terminate the uncertainty or controversy which
or the “ripening of seed” between persons whose gave rise to the action, or in any case where the
interest are adverse; declaration or construction is not necessary and proper
under the circumstances. (5a, R64)
5. The issue must be ripe for judicial determination;
The issue raised is very important and must be The court may deny the petition if it will not terminate the
resolved immediately because it might lead to uncertainty or controversy.
litigation.
CONVERSION INTO ORDINARY ACTION
6. Adequate relief is not available through other
means or other forms of action or proceedings. SECTION 6. Conversion Into Ordinary
Action.— If before the final termination of the case, a
PARTIES breach or violation of an instrument or a statute, executive
order or regulation, ordinance, or any other governmental
SECTION 2. Parties.— All persons who have regulation should take place, the action may thereupon be
or claim any interest which would be affected by the converted into an ordinary action, and the parties shall be
declaration shall be made parties; and no declaration allowed to file such pleadings as may be necessary or
shall, except as otherwise provided in these Rules, proper. (6a, R64)
prejudice the rights of persons not parties to the action.
(2a, R64)

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Declaratory relief can only be availed if there is no Filed within 30 days from Filed within 60 days from
violation yet on the law, deed, or contract to be notice of the judgment. notice.
interpreted. The denial of a prior The denial of a prior
motion for recon or new motion for recon or new
If there is a breach or violation of the instrument or trial gives the filing party trial gives the filing party a
statute during the pendency of the action, the case time to file within the fresh period of 60 days for
will be converted into an ordinary action. remainder of the 30-day the filing of a Rule 65
period, but never less petition for certiorari.
RULE 64 than 5 days reckoned
REVIEW OF JUDGMENTS AND FINAL ORDERS OR from notice of denial.
RESOLUTIONS OF THE COMMISSION ON
ELECTIONS AND THE COMMISSION ON AUDIT PERIOD TO FILE PETITION

SCOPE SECTION 3. Time to File Petition.— The

petition shall be filed within thirty (30) days from notice of
SECTION 1. Scope.— This Rule shall govern the the judgment or final order or resolution sought to be
review of judgments and final orders or resolutions of the reviewed. The filing of a motion for new trial or
Commission on Elections and the Commission on Audit. reconsideration of said judgment or final order or
(n) resolution, if allowed under the procedural rules of the
Commission concerned, shall interrupt the period herein
In our previous discussions, we came across a provision fixed. If the motion is denied, the aggrieved party may file
in the Constitution that the decisions of the constitutional the petition within the remaining period, but which shall
commissions are appealable to the Supreme Court. But not be less than five (5) days in any event, reckoned from
later on, RA 7902 was passed which provides that notice of denial.
decisions of the third constitution commission (the Civil
Service Commission), can no longer be appealed to the The period to file the petition questioning the decision of
Supreme Court. It will have to pass through the Court of the COMELEC or COA is only 30 days. Normally, if you
Appeals. However, decisions of the COMELEC and the to Rule 65, the period is 60 days. But because this is a
COA shall still be appealed directly to the Supreme Court. special civil action, Rule 64 itself provides that the period
shall be 30 days. (See: RA 7902, 1995)
Why was CSC singled out? If a motion for retrial or a motion for recon is denied, the
Among the three constitutional commissions, it is the CSC petition may be filed within the remaining period but not
which has so many cases. The SC will be facing a deluge less than 5 days.
of so many cases so they requested Congress to enact
that law. In the case of COMELEC and COA, di kayo Can we apply the Neypes Ruling?
daghan ug kaso. Dean Monte has not yet come across a Supreme Court
ruling on this but his understanding is that the Neypes
MODE OF REVIEW ruling will not apply.

SECTION 2. Mode of Review.— A judgment or Neypes ruling was made to purposely reconcile Rule 41
final order or resolution of the Commission on Elections with Rules 42 and 43. These three rules involve appeals
and the Commission on Audit may be brought by the from the lower court to the higher court (RTC to CA; CA
aggrieved party to the Supreme Court on certiorari under to SC). Rule 64 is a special civil action and your mode of
Rule 65, except as hereinafter provided. (n) review is not certiorari under Rule 45 but certiorari under
Rule 65. The review of judgment of the COMELEC or
The mode of appeal under Rule 64 is by way of certiorari COA by the SC is governed by the rules on special civil
under Rule 65. We have discussed before that the mode actions. So, Rule 64 will prevail. We cannot apply by
of appeal to the SC from the decision of the CA and the analogy the provisions of ordinary civil actions because
RTC is by way of petition for certiorari under Rule 45, not the special civil action is clear. You can only apply
65. When you question the decision of the COMELEC and suppletorily the rules on ordinary civil actions if the special
COA, you question it based on abuse of discretion and so civil action is wanting on a specific provision on the
you will raise the matter by way of Rule 65. matter.

RULE 64 RULE 65 If you question the decision of the COMELEC or COA,

Directed to judgments, Directed to any tribunal, you have to bring that action within 30 days. If you file a
final orders or resolutions board or officer exercising motion for reconsideration within the 30-day period and it
of COMELEC and COA judicial or quasi-judicial is denied, then you only have the balance of the 30 days
functions. but it should not be less than 5 days. Even if you filed on

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the 28th day, once the motion is denied, you should still be NOTE:
given at least 5 days.
1. Findings of fact of the Commission, if supported
DOCKET AND OTHER LAWFUL FEES by sufficient evidence, shall be final and non-
reviewable.
SECTION 4. Docket and Other Lawful Fees.— In Rule 65, it obviously involves questions of facts
Upon the filing of the petition, the petitioner shall pay to because you are questioning the decision of the body
the clerk of court the docket and other lawful fees and or the court as constituting grave abuse of discretion.
deposit the amount of P500.00 for costs. (n) There are factual issues. But the Supreme Court, as
much as possible, will not anymore disturb the factual
FORM AND CONTENTS OF PETITION findings of the COMELEC or the COA because they
are supposed to be experts in their respective fields.
SECTION 5. Form and Contents of Petition.— The SC can only disturb the factual findings of these
The petition shall be verified and filed in eighteen (18) bodies if there is a clear and glaring error committed
legible copies. The petition shall name the aggrieved which would constitute grave abuse of discretion.
party as petitioner and shall join as respondents the
Commission concerned and the person or persons 2. Petition shall be accompanied by clearly legible
interested in sustaining the judgment, final order or duplicate original or certified true copy of the
resolution a quo.The petition shall state the facts with judgment and other papers.
certainty, present clearly the issues involved, set forth the
grounds and brief arguments relied upon for review, and 3. Petition must allege the material dates and must
pray for judgment annulling or modifying the questioned contain certification of non-forum shopping.
judgment, final order or resolution. Findings of fact of the
Commission supported by substantial evidence shall be 4. Proof of service
final and non-reviewable. Furnish a copy to the adverse party including the
COMELEC or COA whose decision you are
The petition shall be accompanied by a clearly questioning.
legible duplicate original or certified true copy of the
judgment, final order or resolution subject thereof, ORDER TO COMMENT
together with certified true copies of such material
portions of the record as are referred to therein and other SECTION 6. Order to Comment.— If the
documents relevant and pertinent thereto. The requisite Supreme Court finds the petition sufficient in form and
number of copies of the petition shall contain plain copies substance, it shall order the respondents to file their
of all documents attached to the original copy of said comments on the petition within ten (10) days from notice
petition. thereof; otherwise, the Court may dismiss the petition
outright. The Court may also dismiss the petition if it was
The petition shall state the specific material dates filed manifestly for delay, or the questions raised are too
showing that it was filed within the period fixed herein, and unsubstantial to warrant further proceedings. (n)
shall contain a sworn certification against forum shopping
as provided in the third paragraph of Section 3, Rule 46. ORDER TO COMMENT
The petition shall further be accompanied by
proof of service of a copy thereof on the Commission 1. If petition is sufficient in form and substance, it
concerned and on the adverse party, and of the timely may require respondent to file comment within 10
payment of docket and other lawful fees. days; OR
2. It may dismiss the petition if filed manifestly for
The failure of petitioner to comply with any of the delay or question raised is unsubstantial to
foregoing requirements shall be sufficient ground for the warrant consideration.
dismissal of the petition. (n)
COMMENTS OF RESPONDENTS
FORMS AND CONTENTS
1. Petition must be verified SECTION 7. Comments of Respondents.—
2. In 18 legible copies (but see Sec. 5 of EUPR) The comments of the respondents shall be filed in
3. The aggrieved party as Petitioner eighteen (18) legible copies. The original shall be
4. Include the Commission as Respondent (because accompanied by certified true copies of such material
you are questioning whether or not the Commission portions of the record as are referred to therein together
has committed grave abuse of discretion) with other supporting papers. The requisite number of
5. Petition shall state the facts, the issues involved, and copies of the comments shall contain plain copies of all
the arguments relied upon documents attached to the original and a copy thereof
6. Prayer annulling the judgment shall be served on the petitioner.

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 No other pleading may be filed by any party RULE 65
unless required or allowed by the Court. (n) CERTIORARI, PROHIBITION AND MANDAMUS

CONTENTS OF COMMENT Monte: Rule 65 is a remedy to correct errors made by

1. 18 copies (but see Sec. 5 of EUPR) courts, quasi-judicial bodies, or administrative bodies.
2. Accompanied by certified true copies of such
material portion of the records. 3 remedies under Rule 65:
3. No other pleadings may be filed unless allowed 1. Certiorari
or required by the courts. 2. Prohibition
3. Mandamus
EFFECT OF FILING
These three special civil actions are lumped in one rule
SECTION 8. Effect of Filing.— The filing of a because they have many things in common.
petition for certiorari shall not stay the execution of the
judgment or final order or resolution sought to be CERTIORARI
reviewed, unless the Supreme Court shall direct
otherwise upon such terms as it may deem just. (n) Sec 1 – Petition for Certiorari

The filing of petition for certiorari shall not stay the SECTION 1. Petition for Certiorari.— When any
execution of judgment, unless the SC provides otherwise. tribunal, board or officer exercising judicial or quasi-
When you file a petition for certiorari under Rule 65, it is judicial functions has acted without or in excess of its or
imperative that you ask the court for the issuance of a his jurisdiction, or with grave abuse of discretion
TRO or a writ of preliminary injunction. amounting to lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the
SUBMISSION FOR DECISION ordinary course of law, a person aggrieved thereby may
file a verified petition in the proper court, alleging the facts
SECTION 9. Submission for Decision.— with certainty and praying that judgment be rendered
Unless the Court sets the case for oral argument, or annulling or modifying the proceedings of such tribunal,
requires the parties to submit memoranda, the case shall board or officer, and granting such incidental reliefs as law
be deemed submitted for decision upon the filing of the and justice may require.
comments on the petition, or of such other pleadings or
papers as may be required or allowed, or the expiration of The petition shall be accompanied by a certified true copy
the period to do so. (n 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
The case is deemed submitted for decision upon the
shopping as provided in the paragraph of Section 3, Rule
filing of the comment and such other pleadings required
46.
UNLESS the Court sets the case for oral argument, or
requires the parties to submit memorandum, or upon
the lapse of time for them to submit the memoranda. Against Whom Filed

If the case is a very celebrated case and it is represented Against any tribunal, board or officer exercising judicial or
by well-known lawyers, and the media is so interested to quasi-judicial functions
hear what happens in the case, the SC may require them
to argue the case orally. But this is very very seldom. Basis of the Petition

(a) If acted without or in excess of jurisdiction, or

(b) With abuse of discretion amounting to lack or in
excess of jurisdiction

Monte: The remedy of certiorari under Rule 65 based on

grave abuse of discretion committed by the respondent
court applies only against a court or a quasi-judicial body.
It must be performing a judicial or quasi-judicial function.
Meaning, it is tasked to decide a case.

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 Conditions Stays the judgment Does not stay the
appealed from judgment or order subject
What are the conditions for the filing of a petition for of the petition, unless
certiorari under Rule 65? enjoined or restrained
Parties are the original The tribunal, board, or
(a) There is no appeal, or any plain, speedy, and parties with the appealing officer, exercising judicial
adequate remedy in the ordinary course of law party as the petitioner and or quasijudicial functions
Since there is no other plain, speedy, adequate the adverse party as the is
remedy in order to prevent the act of the respondent respondent, without impleaded as respondent
body, then you can avail of Certiorari under Rule 65. impleading the lower court
or its judge
(b) Aggrieved party shall file a verified petition seeking
the annulment of subject order; Review by the SC is If the order is sufficient in
discretionary and will be form and substance, the
(c) Petition to be accompanied by certified true copy of granted only when there RTC
the judgment or order are special or important shall:
reasons [Sec. 6, Rule 45] 1. order respondents to
(d) Certification of non-forum shopping comment, then
A petition for certiorari is considered an original action 2.
and not an appeal. It is an original case. That is why (a) hear the case or
there should be a certification of non-forum shopping. (b) require the parties to
file memoranda.
Certiorari as Mode of Certiorari as Special
Appeal (Rule 45) Civil Action (rule 65) But the SC/CA may
A continuation of the An original action and not require a comment before
appellate process over a mode of appeal giving the petition due
the original case course.
Seeks to review final May be directed against (UP BOC 2020 p. 197)
judgment or final orders an interlocutory order of
the court or where no (e) Proper to correct error of jurisdiction not of
appeal or plain or speedy judgment
remedy is available in the
ordinary course of law Error of jurisdiction – the court or quasi-judicial
Raises only questions of Raises questions of body assumes jurisdiction over a case but it does not
law jurisdiction, i.e. whether a really have jurisdiction under the law. If the court has
tribunal, board or officer no jurisdiction, the entire proceeding is null and void.
exercising judicial or If you call the attention of the court and filed a motion
quasi-judicial functions to dismiss showing that the court has no jurisdiction
has acted over the subject matter, yet the court denied the
without jurisdiction or in motion to dismiss and insisted on trying the case.
excess of jurisdiction or
with grave abuse of What will be your remedy?
discretion amounting to Your remedy is not an appeal from the decision of the
lack of jurisdiction court denying your MTD because that is not
Filed within 15 days from Filed not later than 60 appealable. That is an interlocutory order.
notice of judgment or final days from notice of
order appealed from, or of judgment, order, or Your remedy is certiorari – you go to the next higher
the denial of petitioner’s resolution sought to be court questioning the actuation of the judge of that
motion for reconsideration assailed. lower court on insisting to have the jurisdiction even if
or new trial. it does not have jurisdiction over the case.

Extension of 30 days may Extension granted only When the court has no jurisdiction and it still insisted
be granted for justifiable under exceptional cases on trying the case, there is now a case of error of
reasons. jurisdiction which is correctible only by certiorari.

Does not require a prior Motion for reconsideration If the court, however, has jurisdiction over the case
motion for reconsideration is a condition precedent, and conducted a hearing pursuant to its jurisdiction
subject to exceptions but committed errors in the appreciation of facts and

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 application of law, it is only a mere error of Without Excess of Grave Abuse of
judgment. Jurisdiction Jurisdiction Jurisdiction
Means he does Means he is It means such
Error of judgment – the court has jurisdiction but it not have the clothed with the capricious and
committed an error in deciding the case. It is legal power to power to whimsical
correctible by appeal and not by certiorari. determine the determine the exercise of
case case but he judgment as is
Error of Jurisdiction Error of Judgment oversteps his equivalent to lack
The court or quasi-judicial The court has jurisdiction authority of jurisdiction or in
body assumes jurisdiction but it committed an error other words,
over a case but it does not in deciding the case where the power
really have jurisdiction is exercised in
under the law an arbitrary or
Remedy is certiorari Remedy is an appeal despotic
under Rule 65 manner by
reason of passion
Respondent must be performing a judicial or quasi- or personal
judicial function hostility, and it
must be so
Monte: It is important in certiorari under Rule 65 that the patent and gross
respondent must be performing a judicial or a quasi- as to amount to
judicial function. an invasion of
positive duty or to
Judicial Function – refers to the power to determine a virtual refusal to
what the law is, what are the legal rights of the parties, perform the duty
and adjudicate their rights. This is exercised by the enjoined or to act
regular courts in contemplation
of law
What are the regular courts?
MTC, RTC, CA, SC, Sandiganbayan as a special court, Monte: The judge has discretion. Judicial power is an
Family Court, Shari’a Court exercise of discretion. It is a discretionary power. But if
you abuse your discretion and you exercise it in an
Quasi-Judicial Function – refers to the act performed by arbitrary and despotic manner by reason of passion or
quasi-judicial bodies. personal hostility, then your act can be questioned under
Rule 65. Abuse of discretion is tantamount to lack or
What are quasi-judicial bodies? in excess of jurisdiction.
Quasi-judicial bodies are bodies or entities of the
government but they do not belong to the judicial branch Sec 2 and Sec 3 – Petition for Prohibition and
– they belong to the executive branch. But although they Mandamus
belong to the executive branch, they are given under the
law or the Constitution the power or authority to conduct SECTION 2. Petition for Prohibition.— When the
a hearing and decide a case. proceedings of any tribunal, corporation, board, officer or
person, whether exercising judicial, quasi-judicial or
Since they do not belong to the judicial branch, they are ministerial functions, are without or in excess of its or his
called quasi-judicial bodies performing quasi-judicial jurisdiction, or with grave abuse of discretion amounting
functions. to lack or excess of jurisdiction, and there is no appeal or
any other plain, speedy, and adequate remedy in the
Without Jurisdiction vs Excess of Jurisdiction vs ordinary course of law, a person aggrieved thereby may
Grave Abuse of Discretion file a verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered
Monte: The ground for your certiorari is that the court or commanding the respondent to desist from further
the quasi-judicial body is acting without jurisdiction or in proceedings in the action or matter specified therein, or
excess of jurisdiction or has committed grave abuse otherwise granting such incidental reliefs as law and
of discretion amounting to lack or excess of justice may require.
jurisdiction.
The petition shall likewise be 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-

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forum shopping as provided in the third paragraph of exercising exercising ministerial
Section 3, Rule 46. (2a) judicial or judicial, quasi- function
quasi-judicial judicial or
SECTION 3. Petition for Mandamus.— When any function ministerial
tribunal, corporation, board, officer or person unlawfully function
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, AS TO GROUNDS
or station, or unlawfully excludes another from the use Entity or person Entity or person Entity or person
and enjoyment of a right or office to which such other is is alleged to is alleged to is alleged to have
entitled, and there is no other plain, speedy and adequate have acted have acted, unlawfully:
remedy in the ordinary course of law, the person (1) Without acting, or is (1) Neglect a
aggrieved thereby may file a verified petition in the proper jurisdiction about to act: ministerial
court, alleging the facts with certainty and praying that or (1) Without duty
judgment be rendered commanding the respondent, (2) In excess jurisdiction; (2) Excluded
immediately or at some other time to be specified by the of (2) In excess another from
court, to do the act required to be done to protect the jurisdiction of a right or
rights of the petitioner, and to pay the damages sustained (3) With grave jurisdiction; office
by the petitioner by reason of the wrongful acts of the abuse of (3) With grave
respondent. discretion abused of
amounting discretion
The petition shall also contain a sworn certification of non- to lack or amounting
forum shopping as provided in the third paragraph of excess of to lack or
Section 3, Rule 46. (3a) jurisdiction excess of
jurisdiction
DISTINGUISH CERTIORARI FROM PROHIBITION AND AS TO PURPOSE
MANDAMUS Purpose is to Purpose is to Purpose is for
(a) A Certiorari is intended to correct an act performed by annul or nullify have respondent to do
respondent while Prohibition is to prevent the a proceeding respondent the act required
commission of an act and Mandamus is to compel the desist from and to pay
performance of an act; further damages
(b) Certiorari extends to discretionary acts, Prohibition to proceeding
discretionary and ministerial acts, and Mandamus to AS TO NATURE OF REMEDY
ministerial acts; This remedy is This remedy is This remedy is:
(c) Certiorari lies only against respondent doing judicial or corrective – to preventive and 1. Affirmative
quasi-judicial functions while Prohibition and correct negative – to or positive – if
Mandamus to both judicial and non-judicial acts usurpation of restrain or the
jurisdiction prevent performance
Certiorari Prohibition Mandamus usurpation of of a duty is
Intended to Prevent the Compel the jurisdiction ordered; or
correct an act commission of performance of 2. Negative – if
performed by an act an act a person is
respondent ordered to
Extends to Applies to both Applies to desist from
discretionary discretionary ministerial acts excluding
acts and ministerial another from
acts a right or
Lies only against Lies to both judicial and non-judicial office
respondent acts
doing judicial or The petition shall also contain a sworn certification of non-
quasi-judicial forum shopping as provided in the third paragraph of
functions Section 3, Rule 46. (3a)

San Beda MemAid 2019 Sec 4 – Where Petition Filed

Certiorari Prohibition Mandamus
AS TO WHOM DIRECTED SECTION 4. Where Petition Filed. — The petition may
It is directed It is directed It is directed be filed not later than sixty (60) days from notice of the
against the against the against an entity judgment, order or resolution sought to be assailed in the
action of an entity or the or person Supreme Court or, if it relates to the acts or omissions of
entity or person person himself exercising a lower court or of a corporation, board, officer or person,

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in the Regional Trial Court exercising jurisdiction over the 7. Where the proceeding in the lower court are a nullity
territorial area as defined by the Supreme Court. It may for lack of due process;
also be filed in the Court of Appeals whether or not the 8. Where the proceeding was ex-parte;
same is in aid of its appellate jurisdiction, or in the 9. Where the issue raised is one purely of law or
Sandiganbayan if it is in aid of its jurisdiction. If it involves where public interest is involved
the acts or omissions of a quasi-judicial agency, and
unless otherwise provided by law or these Rules, the Monte: Where the issue raised is one purely of question
petition shall be filed in and cognizable only by the Court of law, there is no need any more for an MR. This was
of Appeals. illustrated in the case of Republic vs Remar Quinonez.

Where do you file your certiorari? REPUBLIC VS REMAR A QUINOÑEZ

In the next highest court – if the act was committed in the GR No. 237412 January 6, 2020
RTC, you will file it to the CA or you may file it also in the
Supreme Court. Monte: This case was just decided last year. This case
involves Article 42 of the Family Code regarding judicial
General Rule: Where appeal is available, certiorari will declaration of presumptive death.
not lie.
The husband filed a case against his wife for judicial
Exceptions: declaration of presumptive death because they were
1. Where appeal does not constitute a speedy and already separated. According to the husband, the wife
adequate remedy; has been unheard already for many years.
2. Where Order is in excess of or without jurisdiction;
3. Where the Order is a patent nullity; Probably, he wanted to marry again and the easiest way
4. Where the decision in certiorari will avoid future is to declare his wife presumptively dead. In that case, the
litigation husband presented evidence to prove that his wife is
presumptively dead. The court granted it.
Monte: One good example is that the court assumes
jurisdiction even if it does not have jurisdiction. The SolGen questioned the ruling of the court why it
granted the petition for declaration of presumptive death.
Do you have to wait for the court to finish hearing the According to the SolGen, there is no sufficient evidence
case and decide the case before questioning the to prove that the wife is already dead.
jurisdiction of the court?
No. It will be useless to wait for the court to decide In the case of Bernaldes, the Court said that if the RTC
because it has no jurisdiction. The proceedings is null and will decide to grant a petition for declaration of
void. If the court is without jurisdiction or in excess of presumptive death, that ruling is immediately executory
jurisdiction, the order of the court is a patent nullity in because this case falls under Summary Procedure.
denying your MTD. You go directly to certiorari. Appeal is not the remedy.

Motion for Reconsideration In the case of Republic vs Ferventino Tango (GR No.
161062, July 31, 2009), the Supreme Court said that the
Rule: A motion for Reconsideration must be filed before SolGen cannot appeal the ruling because the ruling falls
filing the certiorari. under the Rules on Summary Proceedings and is
therefore immediately executory. The remedy of the
Monte: Filing a Motion for Reconsideration is a condition SolGen is to file a petition for certiorari under Rule 65.
precedent in order to give the court or judicial body an So this is what the SolGen did ICAB. It did not file an MR
opportunity to correct his mistake. You must first file an before the RTC.
MR. Filing of an MR is the most immediate remedy to you.
So the lawyer of Remar Quinonez, moved for the
Exceptions: dismissal of the petition for certiorari for not complying
1. Where the order is a patent nullity; with the requirement of filing first an MR. Thus, the SC
2. Where the issue raised in certiorari have been duly ruled:
passed upon by the court; As a general rule, a motion for reconsideration must first
3. Where there is urgent necessity for resolution of the be filed with the lower court before the extraordinary
question raised; remedy of certiorari is resorted to, since a motion for
4. Where motion for reconsideration would be useless; reconsideration is considered a plain, speedy, and
5. Where petitioner is deprived of due process adequate remedy in the ordinary course of law.
6. Where, in a criminal case, relief from an order of Nevertheless, this general rule admits of well-established
arrest is urgent and the granting of such relief by the exceptions, one of which is when the issue raised is a
trial court is highly improbable; pure question of law.

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There is a question of law in a given case when the forum shopping as provided in the third paragraph of
doubt or difference arises as to what the law is on a Section 3, Rule 46.
certain state of facts, and there is a question of fact
when the doubt or difference arises as to the truth of Against whom filed
falsehood of alleged facts.
(a) Tribunal
Here, the Republic does not dispute the truthfulness of (b) Corporation
Remar’s allegations, particularly, the specific acts he (c) Board
claims to have done to locate Lovelyn. What the Republic (d) Officer
does question is the sufficiency of these acts, that is, (e) Person
whether they are sufficient to merit a legal declaration of
Lovelyn’s presumptive death. *Whether exercising judicial, quasi-judicial, or ministerial
functions
Clearly, the Republic’s Petition for Certiorari raised a pure
legal question. Hence, direct resort to the CA via Rule 65, Monte: Prohibition is a special civil action. The
without filing with the RTC a prior motion for respondent here is exercising not only judicial or quasi-
reconsideration, was proper. judicial functions but also ministerial functions.

Basis of the Petition for Prohibition

IOW, when the certain set of facts is already agreed by
the parties and the court, the conclusion arrived at by the What are the bases of the petition?
court on that certain set of facts become a legal question. (a) Without or in excess of jurisdiction – if the
Here, the issue is WON the RTC has complied with the respondent is a judicial or quasi-judicial body
requisites for a declaration of presumptive death. The law
on this matter is very strict that the petition declaring the (b) Grave abuse of discretion amounting lack or in
spouse presumptively dead must be anchored on well- excess of jurisdiction – the same in letter (a)
found belief that she has already been dead. The
quantum of evidence required is much greater. You have (c) There is no appeal or any other plain, speedy and
to prove to the court convincingly that you did everything adequate remedy in the ordinary course of law
possible to locate your wife and on the basis of your own
investigation, the court will be convinced that your wife Where to File
must have already been dead.
In the proper court, to wit:
The Court said that there is no need for an MR before the 1. RTC
SolGen can file a petition for Certiorari under Rule 65. 2. CA
3. SC
PROHIBITION
Monte: If the act that you are questioning is that of the
Sec 2 – Petition for Prohibition RTC, then naturally, you file the Prohibition with the CA,
or if not, to the Supreme Court. But normally, you will have
SECTION 2. Petition for Prohibition.— When the to do it with the CA first. You cannot go directly to the SC
proceedings of any tribunal, corporation, board, officer or because there is already a ruling that although the
person, whether exercising judicial, quasi-judicial or Supreme Court has concurrent jurisdiction over special
ministerial functions, are without or in excess of its or his civil actions of certiorari, prohibition, and mandamus, quo
jurisdiction, or with grave abuse of discretion amounting warranto, you still have to observe the principle of
to lack or excess of jurisdiction, and there is no appeal or hierarchy of courts.
any other plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may If what you are questioning is that of a quasi-judicial body
file a verified petition in the proper court, alleging the facts performing a quasi-judicial function, you can file your
with certainty and praying that judgment be rendered Petition for Prohibition in the RTC, or in the CA, or SC.
commanding the respondent to desist from further
proceedings in the action or matter specified therein, or Prayer for TRO or Preliminary Injunction
otherwise granting such incidental reliefs as law and
justice may require. A prayer for TRO or Preliminary Injunction must be prayed
for to prevent the act during the pendency of the case.
The petition shall likewise be accompanied by a certified
true copy of the judgment, order or resolution subject Monte: One thing in common with the three special civil
thereof, copies of all pleadings and documents relevant actions (Certiorari, Prohibition, Mandamus) is that it does
and pertinent thereto, and a sworn certification of non- not stop the proceedings because these are original

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actions and are not appeals. So the court whose decision body or agency is not performing judicial or quasi-
or action you are questioning by way of certiorari or by judicial function, it can still be inquired into by virtue
way of prohibition will not stop the proceedings not unless of Prohibition.
there is a TRO issued by the higher court where you filed
your Petition for Prohibition. Expanded Scope of Certiorari
While Rule 65 specifically requires that the respondent be
Example: When you question the act of the RTC and you a tribunal, board, or officer exercising judicial or quasi-
filed your Petition for Prohibition with the CA, you must judicial functions, recent pronouncements of the Court
also act at the same time for the issuance of a TRO or a have extended the reach of the petition to functions
Preliminary Injunction. Otherwise, the court can proceed that are neither judicial or quasi-judicial. [Araullo v.
with the trial or hearing if there is no TRO. Aquino, G.R. No. 209287 (2014)]

Prohibition does not lie against legislative functions MANDAMUS

Prohibition lies against judicial or ministerial functions, but SECTION 3. Petition for Mandamus.— When any
not to legislative functions. tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law
Monte: You cannot file prohibition on a body that specifically enjoins as a duty resulting from an office, trust,
exercises legislative functions. or station, or unlawfully excludes another from the use
and enjoyment of a right or office to which such other is
Exhaustion of Administrative Remedies entitled, and there is no other plain, speedy and adequate
remedy in the ordinary course of law, the person
Exhaustion of administrative remedies must be aggrieved thereby may file a verified petition in the proper
availed of if the petition is against an executive official. court, alleging the facts with certainty and praying that
judgment be rendered commanding the respondent,
Monte: It is necessary that if you file a prohibition against immediately or at some other time to be specified by the
an administrative body exercising a ministerial function, court, to do the act required to be done to protect the
you must first exhaust the administrative remedies before rights of the petitioner, and to pay the damages sustained
you can file the prohibition. by the petitioner by reason of the wrongful acts of the
respondent.
Principle of Political Question
Against whom Filed
Certiorari Prohibition and Mandamus to do not generally
lie, subject to some exceptions, against legislative and
(a) Tribunal
executive branches or the members thereof acting in the
(b) Corporation
exercsise of their official functions because of the
(c) Board
principle of political question.
(d) Office
(e) Person
Monte: There are some actuations of the legislative and
executive branch that are beyond of the court to question
Monte: In the special civil action for Prohibition, you ask
because they belong to the category of political question.
the court to prohibit a person, corporation, board, officer
However, I doubt that this is still applicable under the 1987
from performing a particular act.
Constitution.
Mandamus is the opposite where you ask the court to
Sec 1 Article VIII of the 1987 Constitution:
compel that corporation, person, board, etc. to do an act
“The judicial power shall be vested in one Supreme Court
because that is his duty to perform.
and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to
Grounds of Petition for Mandamus
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
(a) Respondent unlawfully neglects the performance of
whether or not there has been grave abuse of discretion
an act which the law specifically enjoins as a duty
amounting to lack or excess of jurisdiction on the part of
resulting from an office, trust, or station;
any branch or instrumentality of the Government.”
(b) He unlawfully excludes another from the use and
enjoyment of a right or office to which said person is
Monte: I italicized that portion. So the court can inquire to
entitled
the action even by the executive or legislative branch for
the purpose of determining whether or not they have
committed grave abuse of discretion amounting to lack or
in excess of jurisdiction. If that legislative or executive

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 Conditions Court has the power to award damages in Mandamus
suit.
(a) There is no other plain, speedy, and adequate
remedy in the ordinary course of law PROVISIONS COMMON TO CERTIOARI,
(b) The petition must be verified PROHIBITION, AND MANDAMUS
(c) The petition must contain a certificate of non-forum
shopping When to File

Monte: These conditions are common to the three special 60 days from notice of judgment or order denying the
civil actions of mandamus, certiorari, prohibition. motion for reconsideration

Compel performance of a ministerial duty Monte: From the time you receive the order, you have 60
Mandamus will lie to compel performance of a ministerial days to file the Petition for Certiorari, Prohibition, and
duty NOT a discretionary duty. Mandamus.

Monte: IOW, you cannot compel a judge or an officer Within that 60 days, you may file an MR and if denied, you
exercising quasi-judicial function rom deciding a case in are given a fresh period of another 60 days.
one way or another. If you think the judge is wrong in
rendering its decision, then you may appeal or file a Distinctions between Rule 64 and 65
certiorari but not mandamus.
You might be confused because we have just discussed
Discretionary Act Ministerial Act Rule 64 regarding petitions for review of the two
The law imposes a duty One which an officer or Constitutional Commissions, the COMELEC and COA.
upon a public officer and tribunal performs in a Under Rule 64, your remedy is a Petition for Certiorari
gives him the right to given state of facts, in a under Rule 65. But the period is only 30 days while
decide how or when the prescribed manner, in under Rule 65, the period is 60 days. Moreover, in Rule
duty shall be performed. obedience to the mandate 64, it says that if you file an MR and your MR is denied,
of a legal authority, you only have the balance of the period but in no case
without shall it be less than 5 days, while in Rule 65, you are given
regard to or the exercise a fresh period.
of his own judgment upon
the Which one will prevail?
propriety or impropriety of I submit that Rule 64 will prevail because it is a special
the act done. rule. In Rule 65, this governs the general rules on filing an
[Roble Arrastre, Inc. v. Villaflor, G.R. No. 128509 (2006)] action or petition for certiorari, prohibition, and
mandamus. Rule 64 is the exception because it
*The order shall command the respondent to do the act provides a peculiar provision only for a Petition for
required to be done to protect the right of the petitioner, Review of the decision of the 2 Constitutional
and to pay the damages sustained by the petitioner by Commissions.
reason of the wrongful acts of the respondent.
Rule 64 Rule 65
MUNICIPALITY OF MAKATI VS CA ET AL Directed to judgments, Directed to any tribunal,
GR NOS 89889-99 OCTOBER 1 1990 final orders or resolutions board, or officer
In a money judgment against the municipality where its of COMELEC and COA. exercising
officials unjustifiably refuse to pay the judgment, the [Sec. 1] judicial or quasi-judicial
remedy of the claimant is to sue the officials for functions. [Sec. 1]
mandamus. This is because the sheriff cannot attach or Filed within 30 days from Filed within 60 days from
levy on execution the public funds. It is the ministerial notice of the judgment. notice of the judgment.
duty of the public officials to obey a final judgment, [Sec. 3] [Sec. 4]
thus, mandamus will lie, otherwise, the claimant will be
stuck with an empty judgment. The denial of a prior The denial of the motion
motion for reconsideration for reconsideration or new
Mandamus does not lie to compel the performance of a or new trial gives the filing trial gives the filing party a
contractual duty. part time to file within the fresh period of 60 days for
remainder of the 30-day the filing of a Rule 65
A petition for mandamus is premature if there are period, but never less petition for certiorari. [Sec.
administrative remedies available to the petitioner except than 5 days reckoned 4]
when the case involves only legal question. from the notice of denial.
[Sec. 3]

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 Where to File or person impleaded as public respondent or
respondents.
RTC or with the CA or Sandiganbayan, whether or not the
same is in aid of its appellate jurisdiction Unless otherwise specifically directed by the court where
the petition is pending, the public respondents shall not
In election cases involving an act or omission of the MTC appear in or file an answer or comment to the petition or
or RTC, the petition shall be filed exclusively with any pleading therein. If the case is elevated to a higher
COMELEC, in aid of its appellate jurisdiction. court by either party, the public respondents shall be
included therein as nominal parties. However, unless
These petitions should not be filed directly with the otherwise specifically directed by the court, they shall not
Supreme Court even though they fall under the appear or participate in the proceedings therein. (5a)
concurrent jurisdiction of the SC, CA, and RTC. We have
to observe the hierarchy of courts. If the act or omission refers to that of a judge, court, quasi-
judicial agency, etc., the petitioner shall join as private
Supreme Court Subject to the doctrine of hierarchy respondent the person interested in the proceeding and it
of courts and only when compelling is his duty to appear and defend the decision. The Judge
reasons exist for not filing the same will be the public respondent but he need not answer or
with the lower courts [Uy v. appear in the case as he is only a nominal party.
Contreras, G.R. No. 111416-17
(1994)] Monte: In a petition for certiorari, since you are
questioning the actuations of the judge in its decision, you
RTC If the petition relates to an act or an have to implead the judge as one of the respondents –
omission of an MTC, corporation, that’s what we call as public respondent. But your
board, officer or person [Sec. 4, opponent in that case to whom the judge rendered a
Rule 65, as amended by A.M. No. decision in his favor, should be the principal respondent
07-7-12-SC] or called the private respondent.

Court of If the petition involves an act or an Here, the judge need not answer your Petition for
Appeals only omission of a quasi-judicial agency, Certiorari. It will be your opponent who will answer
unless otherwise provided by law or your petition for certiorari and it is his job to defend the
rules [Sec. 4, Rule 65, as amended action of the judge as valid under the law because it is in
by A.M. No. 07-7-12-SC] Court of his favor.
Appeals or the Sandiganbayan
Sec 6 – Order to Comment
Court of Whether or not in aid of appellate
Appeals or the jurisdiction [Sec. 4, A.M. No. 07-7- SECTION 6. Order to Comment.— If the petition is
Sandiganbayan 12-SC] sufficient in form and substance to justify such process,
the court shall issue an order requiring the respondent or
Commission In election cases involving an act or respondents to comment on the petition within ten (10)
on Elections an omission of an MTC or RTC days from receipt of a copy thereof. Such order shall be
[Sec. 4, A.M. No. 07-7-12-SC] served on the respondents in such manner as the court
(UP BOC 2020) may direct, together with a copy of the petition and any
annexes thereto.
Sec 5 – Respondents
In petitions for certiorari before the Supreme Court and
SECTION 5. Respondents and Costs in Certain the Court of Appeals, the provisions of Section 2, Rule 56,
Cases.— When the petition filed relates to the acts or shall be observed. Before giving due course thereto, the
omissions of a judge, court, quasi-judicial agency, court may require the respondents to file their comment
tribunal, corporation, board, officer or person, the to, and not a motion to dismiss, the petition. Thereafter,
petitioner shall join, as private respondent or respondents the court may require the filing of a reply and such other
with such public respondent or respondents, the person responsive or other pleadings as it may deem necessary
or persons interested in sustaining the proceedings in the and proper. (6a)
court; and it shall be the duty of such private respondents
to appear and defend, both in his or their own behalf and Monte: If your petition is already filed, the court may
in behalf of the public respondent or respondents affected outrightly dismiss the case if it is glaringly unmeritorious.
by the proceedings, and the costs awarded in such
proceedings in favor of the petitioner shall be against the
private respondents only, and not against the judge, court,
quasi-judicial agency, tribunal, corporation, board, officer

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Order to Comment Action of the Court

If sufficient in form and substance, the trial court may It may grant the petition or deny it if it finds to be patently
require the respondent to comment within 10 days from without merit, etc. If unmeritorious, the court may award
receipt of the copy of order. In SC and CA, reply may in favor of the respondent treble costs against petitioner
be required. and counsel.

Sec 7 – Expediting Proceedings; Injunctive Relief Monte: These grounds for the dismissal by the court are
also common grounds under Petition for Review under
SECTION 7. Expediting Proceedings; Injunctive Relief Rule 42 and Rule 43.
.— The court in which the petition is filed may issue orders
expediting the proceedings, and it may also grant a Court may impose motu proprio other disciplinary
temporary restraining order or a writ of preliminary sanction on erring lawyers for patently dilatory and
injunction for the preservation of the rights of the parties unmeritorious petitions for certiorari.
pending such proceedings. The petition shall not interrupt
the course of the principal case unless a temporary The court may dismiss the petition if:
restraining order or a writ of preliminary injunction has a. It finds the same patently without merit or prosecuted
been issued against the public respondent from further manifestly for delay, or
proceeding in the case. (7a) b. If the questions raised therein are too insubstantial to
require consideration.
CONTINUANCE OF MAIN CASE
Unless a TRO or Preliminary Injunction is issued, the Effect of dismissal
court may continue with the proceeding within 10 days The court may award in favor of the respondent treble
from filing of the petition. costs solidarily against the petitioner and counsel, in
addition to subjecting counsel to administrative sanctions
Monte: This is what I mentioned a while ago. The filing of under Rules 139 and 139-B.
Petition for Certiorari under Rule 65 does not prevent the • The Court may impose motu proprio, based on res ipsa
judge from proceeding with the case because it is not an loquitur, other disciplinary measures on erring lawyers for
appeal, unless you get a TRO. patently dilatory and unmeritorious petitioner for certiorari.
[Sec. 8, Rule 65]
Normally, in actual practice, the court will wait for the time
because the court will grant the other party 10 days to file Sec 9 – Service and Enforcement of Order or
their Answer. If they file their Comment and there is no Judgment
TRO issued, the court may proceed with the hearing and
presentation of evidence. The court can do that unless SECTION 9. Service and Enforcement of Order or
there is a TRO. Judgment.— A certified copy of the judgment rendered
in accordance with the last preceding section shall be
Sec 8 – Proceedings After Comment is Filed served upon the court, quasi-judicial agency, tribunal,
corporation, board, officer or person concerned in such
SECTION 8. Proceedings After Comment is Filed. — manner as the court may direct, and disobedience thereto
After the comment or other pleadings required by the shall be punished as contempt. An execution may issue
court are filed, or the time for the filing thereof has expired, for any damages or costs awarded in accordance with
the court may hear the case or require the parties to Section 1 of Rule 39.
submit memoranda. If after such hearing or submission of
memoranda or the expiration of the period for the filing Judgment of the court shall be served upon the court,
thereof the court finds that the allegations of the petition quasi-judicial agency, tribunal, corporation, board or
are true, it shall render judgment for the relief prayed for officer in such manner as the court may direct.
or to which the petitioner is entitled. Disobedience thereto is punishable as contempt.
Execution may issue for any damages or costs awarded.
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.

After Comment

The court may hear the case or require the parties to file
memoranda.

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 27 of 27

 RULE 66 b) A public officer who does or suffers an act, which, by
QUO WARRANTO provision of law, constitutes a ground for the forfeiture
of his office; OR
A quo warranto proceeding is the proper legal remedy
to determine the right or title to the contested public office c) An association which acts as a corporation without
and to oust the holder from its enjoyment. [Defensor- being legally incorporated, or without lawful authority
Santiago v. Guingona, Jr., G.R. No. 134577 (1998)] to act.

Literally means “by what authority”, it is a prerogative writ Monte: So, quo warranto is also the appropriate remedy
by which the court can call upon any person to show by or action that you will file against a group of people who
what warrant he holds a public office or exercises a public pretended to the public that they are a corporation
franchise. [Tecson v. COMELEC, G.R. No. 161434 although in reality, they were not registered as a
(2004)] (UP 2020) corporation with the SEC. Therefore, that group of people
do not acquire juridical personality. So, it cannot be
Monte: Quo warranto is a special civil action intended to considered as a person under the law that can perform a
oust a person who is occupying a public office even function of a person. So, any association which acts as a
though he has no right to hold that public office. corporation without being legally incorporated or which
has no lawful authority to act can be prevented through a
Sec. 1. Action by Government Against Individuals quo warranto.

Section 1. Action by Government against individuals. Quo warranto is the remedy to try disputes with respect
— An action for the usurpation of a public office, position to the title to a public office. If the rightful occupant is
or franchise may be commenced by a verified petition prevented from assuming the office, mandamus is the
brought in the name of the Republic of the Philippines remedy to oust the usurper.
against:
When Quo Warranto is Not Proper (UP 2020)
(a) A person who usurps, intrudes into, or unlawfully
holds or exercises a public office, position or (1) Against persons who usurp an office in a private
franchise; corporation [Calleja v. Panday, G.R. No. 168696
(2006)]
(b) A public officer who does or suffers an act which, by
the provision of law, constitutes a ground for the (2) If the dispute is as to the counting of votes or on
forfeiture of his office; or matters connected with the conduct of the election, a
quo warranto is not the proper remedy but an election
(c) An association which acts as a corporation within the protest. [Cesar v. Garrido, G.R. No. 30705 (1929)]
Philippines without being legally incorporated or
without lawful authority so to act. (1a) (3) Acts or omissions, even if it relates to the qualification
of integrity, being a continuing requirement but
Quo Warranto is an action to prevent the usurpation of a nonetheless committed during the incumbency of a
public office, position or franchise. It is commenced by a validly-appointed and/or validly-elected official,
verified petition in the name of the Republic of the cannot be the subject of a quo warranto proceeding.
Philippines or by a person entitled to the position. [Republic v. Sereno, G.R. No. 237428 (2018)]

Monte: So, the one who will file the quo warranto case Quo Warranto Distinguished from Election Contest
could either be: (1) the Republic of the Philippines, OR (2)
a private person who claims to be entitled to that public Quo Warranto Election Contest
office. The basis for quo Election contests
warranto is that the challenge the right of a
Parties occupant is person to hold office
disqualified to hold on the ground of
Petitioner: 1
office by reason of irregularities in the
Republic of the Philippines except when filed by a person ineligibility or conduct of the election.
who claims to be entitled to the office. disloyalty.

Respondents:
a) A person who usurps, intrudes into, or unlawfully Monte: So, in election contests, there is an election of a
holds or exercises a public office, position or public official. The one who was declared the winner was
franchise; later on found to be cheating. In other words, there was

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 1 of 22

an irregularity. So, election contests can be filed only after through quo
a candidate is proclaimed to be a winner, and he won warranto.
because of cheating or some irregularity in the conduct of
an election. So, the remedy of the candidate is to file an In elective office, In appointive offices, the
election contest. the occupant court will oust the person
declared to be illegally appointed and
If the petition for quo In election contests, the ineligible will be will order the seating of
warranto is granted, successful protestant unseated, but the the person legally
the responded is will assume the office if petitioner will not appointed.
2
ousted but the he obtained a plurality sit.
2
petitioner will not of the valid votes. Monte: That is if the
assume the office. person who filed the
complaint is the person
Monte: In quo warranto, the petitioner will not assume the who was legally
office. That is if the petition is filed by the government to appointed, and he was
oust the respondent. able to prove that he was
entitled to the position.
Quo Warranto in Elective vs. Appointive Offices Quo warranto in In appointive office, quo
election cases is warranto is governed by
Elective Office Appointive Office 3 governed by the Rule 66.
In quo warranto In appointive offices, the Omnibus Election
involving elective issue is the validity of the Code.
office, the issue is appointment and his right Under the Omnibus Under Rule 66, it
the eligibility of the to hold office. Election Code, quo presupposes that the
respondent. warranto must be respondent is already
Monte: In quo warranto filed within ten (10) holding office, and the
Monte: Now, in quo in appointive offices, the days from prescriptive period is one
warranto involving issue is the validity of the proclamation of (1) year.
elective offices, appointment and his right candidate.
the issue is the to hold office. You Monte: That is found in
eligibility of the appointed someone, or Sec. 11 of this Rule 66.
respondent. the appointing power
Meaning, there was appointed someone to UP 2020:
an election, let’s say hold a position where the GEN: An action for quo
an election for appointee was not warranto must be filed
mayor. Mr. X was qualified to hold the within 1 year after the
declared the position. So, quo warranto cause of such ouster, or
winner. There was is the remedy here. the right of the petitioner
no irregularity in the to hold such
1
conduct of the office/position arose.
4
election – there was
no cheating. Mr. X XPN: The prescriptive
won fair and period does not apply if
square. But it was the failure to file the
found later on by action can be attributed to
the losing candidate acts of a responsible
that Mr. X is government officer and
disqualified to hold not of the dismissed
that office because, employee. [Romualdez-
for example, it was Yap v. CSC, et. al., G.R.
proven that he was No. 104226 (1993)]
not a Filipino
citizen. The pendency of
administrative remedies
So, what is the does not operate to
remedy? The suspend the period of 1
remedy is to oust year within which a
him from his office petition for quo warranto

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 2 of 22

 should be filed. [Torres v. Who will commence the quo warranto case?
Quintos, G.R. No. L-3304 A: A quo warranto case can be commenced by:
(1951)]
In the Election Under Rule 66, the 1) The Solicitor General (SolGen or public
Code, the petition petitioner must be the prosecutor, when directed by the President (Sec.
may be filed by person entitled to the 2);
5 any registered office OR it could be the
candidate for the government of the 2) The SolGen if he has good reason to believe that
same office. Philippines, through the a case can be established (Sec. 2);
Solicitor General.
3) The SolGen or public prosecutor, may, with the
Where to File Quo Warranto Against Elective permission of the court, at the request of another
Officials on the Ground of Ineligibility or Disloyalty person. (Sec. 3)

Official Where to File But, in such case, the officer may require an
Member of the Congress; indemnity for the expenses and costs of the
or city and provincial COMELEC action from the person (relator), at whose
officials request the action was brought.
Municipal officials RTC
Barangay officials MTC 4) A person claiming to be entitled to public office or
position usurped or unlawfully held or exercised
Secs. 2-3. Who Will Commence Action by another.

Nota Bene: In an application for permission to commence

Section 2. When Solicitor General or public
an action for quo warranto at the request of another
prosecutor must commence action. — The Solicitor
person, the court shall direct that notice be given to the
General or a public prosecutor, when directed by the
respondent so that he may be heard in opposition thereto.
President of the Philippines, or when upon complaint or
otherwise he has good reason to believe that any case
Monte: So, the respondent must be notified by the relator
specified in the preceding section can be established by
and the SolGen who eventually will be the one to file the
proof, must commence such action. (3a)
petition – he must be furnished a copy of the position so
that he will have the opportunity to oppose it, and he must
Section 3. When Solicitor General or public
be given his day in court.
prosecutor may commence action with permission of
court. — The Solicitor General or a public prosecutor
The Solicitor General
may, with the permission of the court in which the action
is to be commenced, bring such an action at the request
Monte: Now, who will commence the quo warranto case?
and upon the relation of another person; but in such case
As I have said a while ago, a quo warranto case can be
the officer bringing it may first require an indemnity for the
commenced by the SolGen for and in behalf of the
expenses and costs of the action in an amount approved
Republic of the Philippines, or it can be initiated by a
by and to be deposited in the court by the person at whose
private person who claims to be entitled to the office.
request and upon whose relation the same is brought.
(Sec. 5)
(4a)
Now, if it is initiated by the SolGen, the SolGen can file a
Section 4. When hearing had on application for
quo warranto case against a particular public official only
permission to commence action. — Upon application
when is directed by the President to file. Or, even if he is
for permission to commence such action in accordance
not directed by the President, if he has good reason to
with the next preceding section, the court shall direct that
believe that a case can be established against that official.
notice be given to the respondent so that he may be heard
This (the second instance) is what happened to Chief
in opposition thereto; and if permission is granted, the
Justice Sereno.
court shall issue an order to that effect, copies of which
shall be served on all interested parties, and the petition
If you recall, the ouster of Chief Justice Sereno was not
shall then be filed within the period ordered by the court.
by impeachment, but by quo warranto. And who initiated
(5a)
the quo warranto case? It was SolGen Jose Calida. But it
Section 5. When an individual may commence such
was President Duterte who instructed him, who ordered
an action. — A person claiming to be entitled to a public
him to file the quo warranto case. And according to
office or position usurped or unlawfully held or exercised
SolGen Calida, he has good reason to believe that a case
by another may bring an action therefor in his own name.
can be established against the Chief Justice.
(6)

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Another instance where the SolGen will be the one to An individual may commence the action if he claims to be
initiate a quo warranto case is when the SolGen is entitled to the office or position usurped or unlawfully held
requested by a private person – he is requested by a or exercised by another. [Sec. 5, Rule 66]
private person or public official – to file a quo warranto − He must aver and be able to show that he is entitled
case. That someone who requested the SolGen is called to the office in dispute, otherwise the action may be
the relator. He is a third person who requested the dismissed at any stage. [General v. Urro, G.R. No.
SolGen to file the quo warranto case against a particular 191560 (2011)]
public official. But in this instance, the SolGen cannot file
the quo warranto case without the permission of the court. A public utility may bring a quo warranto action against
So, the SolGen, upon the request of the relator, must file another public utility which has usurped the rights of the
a motion for leave of court to allow him to file a quo former granted under a franchise. [Cui v. Cui, G.R. No.
warranto case. And moreover, the SolGen will not file the 39773 (1934)]
quo warranto case if the relator will not put up a bond to
answer for whatever damage the SolGen might be held Sec. 6. Parties and Contents of the Petition Against
liable for if the person or the respondent in the quo Usurpation
warranto case will be able to prove that he is actually
entitled to the position, and therefore, the quo warranto Section 6. Parties and contents of petition against
will have to be dismissed. usurpation. — When the action is against a person for
usurping a public office, position or franchise, the petition
So, because of the filing of the case, the respondent in shall set forth the name of the person who claim to be
the quo warranto case may suffer damages. Now, who entitled thereto, if any, with an averment of his right to the
will answer for these damages? In order to protect the same and that the respondent is unlawfully in possession
SolGen, he must pass on the liability to the relator. How thereof. All persons who claim to be entitled to the public
is it done? By requiring the relator first to put up an office, position or franchise may be made parties, and
indemnity bond for whatever the SolGen may be held their respective rights to such public office, position or
answerable for if the petition for quo warranto is found to franchise determined, in the same action. (7a)
be unmeritorious.
Sec. 7. Venue
By a person claiming to be entitled to the
office/position
Section 7. Venue. — An action under the preceding six
Monte: Now, another one who can file a petition for quo sections can be brought only in the Supreme Court, the
warranto – as I’ve said, is a person claiming to be entitled Court of Appeals, or in the Regional Trial Court exercising
to a public office or position usurped or unlawfully jurisdiction over the territorial area where the respondent
held/exercised by another. or any of the respondents resides, but when the Solicitor
General commences the action, it may be brought in a
If the quo warranto case is filed by a person who claims Regional Trial Court in the City of Manila, in the Court of
to be entitled to the office, there is no need for him to ask Appeals, or in the Supreme Court. (8a)
for the permission of the SolGen. There is no need for him
to file a motion for leave of court to file the quo warranto. What is the venue for quo warranto cases?
He can file right away. Di na siya kailangan mananghid pa A: You can file it in the:
because he is the one who is aggrieved. 1) Supreme Court
2) Court of Appeals
When Government Commences an Action Against 3) RTC
Individuals or Associations (UP 2020)
Monte: Because quo warranto – just like certiorari,
The SolGen or a public prosecutor, prohibition and mandamus – quo warranto, as a special
civil action, falls within the concurrent jurisdiction of the
(1) Must bring the action (MANDATORY): three courts.
a. When directed by the President; or
b. Upon complaint, where the OSG has good reason to But of course, the courts should observe the principle of
believe that any of the cases in Sec. 1, Rule 66 exists. hierarchy of courts. In other words, you normally cannot
file the case right away in the SC. You have to file it first
(2) May bring the action (DISCRETIONARY): in the RTC. If it is not possible to file it in the RTC, file it
a. At the request of another person; and with the CA before you go to the SC except when the
b. With the permission of the court. case is so important, or it has probably gained national
prominence, as in the case of the quo warranto against
the ex-Chief Justice, of course it should be filed in the SC
because it would be quite abnormal or weird to have that

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case filed in the RTC. Kay ang-ang man i-file nimo sa Sec. 10. Rights of the Person Entitled to the Office
RTC, the judge who will preside is under the respondent,
who is the Chief Justice. So, a quo warranto against the Section 10. Rights of persons adjudged entitled to
Chief Justice must be filed in the SC. public office; delivery of books and papers; damages.
— If judgment be rendered in favor of the person averred
Sec. 8. Period to File Pleadings in the complaint to be entitled to the public office he may,
after taking the oath of office and executing any official
Section 8. Period for pleadings and proceedings may bond required by law, take upon himself the execution of
be reduced; action given precedence. — The court the office, and may immediately thereafter demand of the
may reduce the period provided by these Rules for filing respondent all the books and papers in the respondent's
pleadings and for all other proceedings in the action in custody or control appertaining to the office to which the
order to secure the most expeditious determination of the judgment relates. If the respondent refuses or neglects to
matters involved therein consistent with the rights of the deliver any book or paper pursuant to such demand, he
parties. Such action may be given precedence over any may be punished for contempt as having disobeyed a
other civil matter pending in the court. (9a) lawful order of the court. The person adjudged entitled to
the office may also bring action against the respondent to
− Period to file pleadings may be reduced by the court; recover the damages sustained by such person by reason
− Quo warranto may be given precedence over any of the usurpation. (15a)
other civil matter pending in court.
Rights of the Person Entitled to the Office
Monte: Now, the period to file your pleading in quo
warranto can be reduced by the court. And quo warranto Once the court grants the quo warranto petition, what
is one of the cases that requires the immediate attention are the rights of the person who was able to prove
of the court. That’s why quo warranto shall be given that he is entitled to the office?
preference over any other civil matter in court. So, if A: The person who is entitled to the office has the right:
there’s a quo warranto case, it should be heard first over
any other ordinary civil action. a) To assume office after taking the oath of office
and executing an official bond required by law;
Sec. 9. Judgment Where Usurpation is Found
b) Demand from respondent all the books, papers or
Section 9. Judgment where usurpation found. — documents in his possession;
When the respondent is found guilty of usurping into,
intruding into, or unlawfully holding or exercising a public c) To ask the court to cite the respondent in
office, position or franchise, judgment shall be rendered contempt of court if he refuses to obey; and
that such respondent be ousted and altogether excluded
therefrom, and that the petitioner or relator, as the case d) To recover damages from the respondent.
may be, recover his costs. Such further judgment may be
rendered determining the respective rights in and to the Sec. 11. Limitations
public office, position or franchise of all the parties to the
action as justice requires. (10a) Section 11. Limitations. — Nothing contained in this
Rule shall be construed to authorize an action against a
Judgment in Quo Warranto Action (UP 2020) public officer or employee for his ouster from office unless
the same be commenced within one (1) year after the
When respondent is found guilty of usurping into, cause of such ouster, or the right of the petitioner to hold
intruding into, or unlawfully holding or exercising a public such office or position, arose, nor to authorize an action
office, position, or franchise, judgment shall be rendered for damages in accordance with the provisions of the next
that: preceding section unless the same be commenced within
a. Such respondent is ousted and altogether excluded one (1) year after the entry of the judgment establishing
therefrom; and the petitioner's right to the office in question. (16a)
b. Petitioner, as the case may be, recovers his costs.
Prescription
Note: Further judgment may be rendered determining the
respective rights in and to the public office, position, or Now, what is the period where you are allowed to file
franchise of all parties to the action as justice requires. the quo warranto case? Is there a prescription
period?
A: The answer is yes. It’s found in Sec. 11.

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The prescriptive period for filing an action or petition for And according to SolGen Calida, quo warranto is one of
quo warranto is: the legal means because they (Sereno camp) said that
the Chief Justice need not divulge in her SALN her other
1) One year after the cause of such ouster arose; or income when she was still teaching in UP. And that is
2) One year after the right of the petitioner to hold dishonesty, according to them (Calida camp). In her
such office or position arose; SALN – didto siya naigo sa iyang SALN kay wala kuno
3) An action for damages will also prescribe in one niya na divulge iyang other income. And one of the
year from the entry of judgment establishing requirements to become a justice, much more to become
petitioner’s right to hold office. a Chief Justice, is honesty. So, di daw siya qualified to
hold the position of Chief Justice because she is
Monte: So, a quo warranto case must be filed against dishonest. That’s one of the issues.
someone who is usurping the office within 1 year from the
time the usurpation of office is committed; from the time Another issue is the issue of prescription. Because, Chief
the respondent usurps the office. One year to file the Justice Sereno claims that “I have been a justice – an
petition for quo warranto. associate justice – of the SC for many years. And in fact,
I have served as the Chief Justice for more than 1 year
REPUBLIC VS. CJ SERENO already.” And, according to Rule 66, Sec. 11, the
G.R. No. 237428, May 11, 2018 prescription for bringing an action of quo warranto is only
1 year. Therefore, the action or petition for quo warranto
The prescriptive period of one year under Sec. 11 of Rule has already prescribed.
66 does not apply if the one who initiated the petition is
the government because prescription will not lie against Okay, how did the government rebut that argument?
the government. According to the government, prescription will not lie
against it. That’s their argument. In other words, the
Dissenting opinion of J. Leonen: The rule that prescriptive period found in Sec. 11 applies only to a
prescription will not lie against the State refers to private person who claims that he is the one is entitled to
acquisitive and extinctive prescription in regards to that position. He must file it within 1 year, otherwise, he is
acquisition of ownership of real rights, and not already barred. But if it’s the government who filed the quo
prescription in general under Art. 1108 of the Civil Code. warranto, prescription will not lie.
It is limited to reversion of lands to the public domain after
said lands were fraudulently granted to private persons. But there’s a very nice dissenting opinion from Justice
Marvic Leonen. And he said:
Monte: In that celebrated case of Republic of the
Philippines vs. Chief Justice Ma. Lourdes Sereño – this is “The rule that prescription will not lie against the
not Sereno, but I do not have an ñ when I type it; I don’t State refers to acquisitive and extinctive
know where’s the ñ in my laptop, hehe – which was prescription in regards to acquisition of ownership
decided in 2018. of real rights, and not prescription in general
under Art. 1108 of the Civil Code. It is limited to
(A/N: Based on Google, Wikipedia, various media reports, reversion of lands to the public domain after said
and the case itself, her surname is “Sereno.”) lands were fraudulently granted to private
persons.”
One of the issues raised in that case of Sereño was
prescription. But before we go to that prescription, let me And, Justice Leonen was correct when he said, “Where
discuss briefly what are the other issues. could you find that rule that prescription will not lie against
the State? Anha na nimo makit-an sa Civil Code. And in
Issue 1: One of the main issues there was that the CJ what part of the Civil Code? It is found in the chapter on
cannot be ousted from office by quo warranto. According acquisition of ownership. Dili na muapply on prescription
to the Constitution, she can only be ousted by against the position being held by a public official, diba?”
impeachment because she is one of the impeachable
officials. So, you should not use that argument that prescription will
not lie. And this is a special civil action. Where the rules
But those who filed the case, the SolGen through Jose on special civil action is also special, it is the one which
Calida, argued that the Constitution did not say that should primarily govern.
impeachment is the only mode of ousting the Chief
Justice. Because according to the Constitution, it says: But then, since this is just a dissenting opinion of Leonen,
“The Chief Justice may be removed by impeachment.” the majority opinion will always prevail. And the majority
The word used is “may”. And therefore, the Constitution opinion is that prescription will not lie against the State.
does not preclude the removal of the Chief Justice So mao na run ang rule. Mao na ang interpretation given
through other legal means. by the SC in the Sereno case.

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 Sec. 12. Judgment for Costs R.A. NO. 8974 (Nov. 7, 2000)
FOR GOVERNMENT INFRASTRUCTURE PROJECTS
Section 12. Judgment for costs. — In an action brought
in accordance with the provisions of this Rule, the court Special law to facilitate the acquisition of right of way, site
may render judgment for costs against either the or location for national government infrastructure projects.
petitioner, the relator, or the respondent, or the person or This includes projects under RA 6957 known as the Build-
persons claiming to be a corporation, or may apportion Operate-and-Transfer Law. This law is deemed to amend
the costs, as justice requires. (17a) the standard of initial compensation in Rule 67 from
assessed value to market value or zonal value.
RULE 67
EXPROPRIATION We all know that the assessed value can be determined
from the tax declaration and which is determined by the
THE COMPLAINT assessor. The assessed value as reflected in the tax
declaration is much less than the market value or the
SECTION 1. The Complaint.— The right of eminent zonal value.
domain shall be exercised by the filing of a verified
complaint which shall state with certainty the right and So, it is unfair for the private land owner if his land is taken
purpose of expropriation, describe the real or personal by the government for public use kay “down-an” lang ka
property sought to be expropriated, and join as and the land can already be taken by the government.
defendants all persons owning or claiming to own, or
occupying, any part thereof or interest therein, showing, Expropriation procedure under RA 8974 specifically
so far as practicable, the separate interest of each governs expropriation for national government
defendant. If the title to any property sought to be infrastructure projects.
expropriated appears to be in the Republic of the
Philippines, although occupied by private individuals, or if Basis of initial deposit is market value of the property as
the title is otherwise obscure or doubtful so that the stated in the TD or the relevant zonal valuation.
plaintiff cannot with accuracy or certainty specify who are
the real owners, averment to that effect may be made in FOR NON-GOVERNMENT INFRASTRUCTURE
the complaint. (1a) PROJECTS

Expropriation is a means of enforcing one of the three If expropriation by national government is not for national
infrastructure projects, the assessed value standard and
inherent powers of the State which is the power of
the deposit mode prescribed in Rule 67 continues to
eminent domain. In your political law, the three inherent
apply.
powers are: police power, power of taxation, and power
of eminent domain.
REPUBLIC V. GINGOYON, GR NO. 166429 (PIATCO
What is the power of eminent domain? CASE)
It is the power of the State to acquire private property for In the PIATCO Case, the Supreme Court affirmed the
public use upon payment of just compensation. ruling of the RTC applying RA 8974 instead of Rule 67 as
Expropriation is the process of acquiring private property the basis of the initial deposit to be paid by the
for public use upon payment of just compensation. It is the government in the construction of NAIA 3 complex.
means by which the government can acquire the property.
It is an action that you file in court commenced by the filing N.B. Appropriate standard of just compensation is a
of a verified complaint. substantive matter well within the province of the
legislature to fix.
HOW COMMENCED
By filing a verified complaint in court (RTC) stating the This involves the construction of NAIA 3, built by a
right and purpose of the expropriation and describe the German company—a consortium of European
real or personal property to be expropriated. contractors. It was under the Build-Operate-Transfer. This
was considered as a national government infrastructure
N.B. Rule 67 primarily governs expropriation by the State project. The controversy here is how much will the
through the national government. Expropriation by local government pay for the lands expropriated. Should it be
governments is governed by the Local Government Code based on Rule 67 (assessed value) or should it be based
of 1991. on RA 8974 which provides for market value or zonal
value (which is always much higher than the assessed
It is a right given to the national government and in some value). The case was raffled to Judge Gingoyon, a who is
instances the national government may delegate it to actually from Cebu and a graduate from UV. He ruled that
some government-run companies. it is RA 8974 that will apply so the government should pay
the market or zonal value. Judge Gingoyon, later on, was

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shot dead (Dean doesn’t know if this case has anything to In case of expropriation, the government shall deposit
do with the assassination). with the court an amount equivalent to 100% of the
current zonal value of the land as determined by the BIR.
OTHER MODES OF ACQUISITION After deposit, the court shall immediately issue a writ of
possession in favor of the government and the latter
Section 3, R.A. NO. 8974. Modes of Accounting Real can immediately start the implementation of the project.
Property. - The government may acquire real property
needed as right-of-way, site or location for any national If you are not contented with the zonal value, you may
government infrastructure project through donation, refuse. If imong yuta naay zonal value nga P10,000 per
negotiated sale, expropriation or any other mode of square meter, ang actual value ana is higher. It is up to
acquisition as provided by law. the owner if he will accept it or not. He can withdraw the
amount deposited or he can fight it out in an expropriation
RA 8974 was amended by RA 10752 (March 7, 2016) proceeding.
which provides that real property needed for right of way
site or locations for national government projects may be ENTRY OF PLAINTIFF UPON DEPOSITING VALUE
acquired by donation, negotiated sale, expropriation or WITH AUTHORIZED GOVERNMENT DEPOSITARY
any other modes of acquisition under the law.
SECTION 2. Entry of Plaintiff Upon Depositing Value
So, it is not correct to say that when the government With Authorized Government Depositary.— Upon the
needs this piece of land for a government project, the filing of the complaint or at any time thereafter and after
government will expropriate this land right away. The due notice to the defendant, the plaintiff shall have the
government will first negotiate with the owner. Negotiate right to take or enter upon the possession of the real
whether the owner will donate it. If not, the government property involved if he deposits with the authorized
will buy it. If they cannot arrive at a fair price in the government depositary an amount equivalent to the
negotiation, then that is the time the government will assessed value of the property for purposes of taxation to
exercise its coercive power by way of expropriation. be held by such bank subject to the orders of the court.
Such deposit shall be in money, unless in lieu thereof the
In negotiated sale, the government will offer, as court authorizes the deposit of a certificate of deposit of a
compensation the following: government bank of the Republic of the Philippines
1. Current market value of the land; payable on demand to the authorized government
2. Replacement cost of structures and depositary.
improvements;
3. Current market value of crops and trees. If personal property is involved, its value shall be
provisionally ascertained and the amount to be deposited
This is fair, di para sauna where you will be paid a small shall be promptly fixed by the court.
amount. Now, they will pay you for the market value of the
land, replace you for the cost of structures and After such deposit is made the court shall order the sheriff
improvements, and the market value for the crops and or other proper officer to forthwith place the plaintiff in
trees. possession of the property involved and promptly submit
a report thereof to the court with service of copies to the
TAXES parties. (2a)
In negotiated sale, the government will pay all the taxes (not discussed)
except real property taxes.
DEFENSES AND OBJECTIONS
Section 4, R.A. NO. 8974. Guidelines for Expropriation
Proceedings. - Whenever it is necessary to acquire real SECTION 3. Defenses and Objections.— If a defendant
property for the right-of-way or location for any national has no objection or defense to the action or the taking of
government infrastructure project through expropriation, his property, he may file and serve a notice of appearance
the appropriate implementing agency shall initiate the and a manifestation to that effect, specifically designating
expropriation proceedings before the proper court under or identifying the property in which he claims to be
the following guidelines: interested, within the time stated in the summons.
(a) Upon the filing of the complaint, and after due notice Thereafter, he shall be entitled to notice of all proceedings
to the defendant, the implementing agency shall affecting the same.
immediately pay the owner of the property the amount
equivalent to the sum of (1) one hundred percent (100%) If a defendant has any objection to the filing of or the
of the value of the property based on the current relevant allegations in the complaint, or any objection or defense
zonal valuation of the Bureau of Internal Revenue (BIR); to the taking of his property, he shall serve his answer
and (2) the value of the improvements and/or structures within the time stated in the summons. The answer shall
as determined under Section 7 hereof; specifically designate or identify the property in which he

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claims to have an interest, state the nature and extent of expropriated, for the public use or purpose described in
the interest claimed, and adduce all his objections and the complaint, upon the payment of just compensation to
defenses to the taking of his property. No counterclaim, be determined as of the date of the taking of the property
cross-claim or third-party complaint shall be alleged or or the filing of the complaint, whichever came first.
allowed in the answer or any subsequent pleading. A final order sustaining the right to expropriate the
property may be appealed by any party aggrieved
A defendant waives all defenses and objections not so thereby. Such appeal, however, shall not prevent the
alleged but the court, in the interest of justice, may permit court from determining the just compensation to be paid.
amendments to the answer to be made not later than ten After the rendition of such an order, the plaintiff shall not
(10) days from the filing thereof. However, at the trial of be permitted to dismiss or discontinue the proceeding
the issue of just compensation, whether or not a except on such terms as the court deems just and
defendant has previously appeared or answered, he may equitable. (4a)
present evidence as to the amount of the compensation
to be paid for his property, and he may share in the This is issued after the objections and defenses of the
distribution of the award. (n) defendant are overruled OR no party appears to defend
his right.
If defendant has objections, he must file his answer to
the complaint within the time stated in the summons. Just compensation shall be determined as of the date of
He must state all the grounds for his objections, the taking OR the filing of the complaint, whichever came
otherwise, those not stated are deemed waived. No first.
counterclaim, cross-claim, or third-party complaint is
allowed. A final order sustaining the right to expropriate may be
appealed. There can be multiple appeal here. One. For
However, during the trial of the issue of just the order of expropriation and another for the issue of just
compensation, defendant may present evidence as to the compensation.
amount of compensation even if he has not answered.
The order of expropriation is appealable because it is a
So if the defendant does not agree with the current zonal final order of the court nga ang imong yuta makuha na sa
value offered by the government, mas pa gyud tong gobyerno. But that is not yet the end of the case. After the
replacement for structures and improvements. If you think issuance of the order, the court will now go to the second
the amount is higher, the government would be forced to stage which is the determination of the just compensation.
expropriate. This is a good example of multiple appeal.

Expropriation is a case filed in court by the government, How do you appeal the order of expropriation? By
commenced by a verified petition in court. You will be records on appeal. You cannot bring the entire records
furnished a copy and you will have to answer. In you because wala pa man nahuman ang RTC sa kaso. Mu
answer, you may put up your defenses and objections. determine pa man ang RTC sa second stage which is how
Ang imo gyud depensa ana is: much should you receive as just compensation.
1. The project is not for public use. It will not redound
to the benefit of the public. That it is intended only SECOND STAGE: DETERMINATION OF JUST
for the benefit of a few politicians. COMPENSATION
2. The amount offered is insufficient as just
compensation. SECTION 5. Ascertainment of Compensation.— Upon
3. the rendition of the order of expropriation, the court shall
Even if the defendant did not answer, he is still allowed to appoint not more than three (3) competent and
prove that the amount of compensation should be higher. disinterested persons as commissioners to ascertain and
report to the court the just compensation for the property
There are actually two stages in expropriation: sought to be taken. The order of appointment shall
1. Order of Expropriation designate the time and place of the first session of the
2. Determination of Just Compensation hearing to be held by the commissioners and specify the
time within which their report shall be submitted to the
FIRST STAGE: ORDER OF EXPROPRIATION court.

SECTION 4. Order of Expropriation.— If the objections Copies of the order shall be served on the parties.
to and the defenses against the right of the plaintiff to Objections to the appointment of any of the
expropriate the property are overruled, or when no party commissioners shall be filed with the court within ten (10)
appears to defend as required by this Rule, the court may days from service, and shall be resolved within thirty (30)
issue an order of expropriation declaring that the plaintiff days after all the commissioners shall have received
has a lawful right to take the property sought to be copies of the objections. (5a)

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After the rendition of the order of expropriation, the court P1Mn (FMV) + P200K (CD) – P100K (CB) = P1.1Mn
shall appoint not more than three (3) competent and But if the consequential benefit is P300K, the just
disinterested persons as commissioners to ascertain and compensation will be P1Mn lang gihapon. Di gyud mu us-
report to the court the just compensation. us ang FMV.

Objections to the appointment of any of the PROCEEDINGS BY COMMISSIONERS

commissioners shall be filed with the court within ten (10)
days from service, and shall be resolved within thirty (30) SECTION 6. Proceedings by Commissioners.—
days. Before entering upon the performance of their duties, the
commissioners shall take and subscribe an oath that they
Just compensation is generally the fair market value. will faithfully perform their duties as commissioners, which
oath shall be filed in court with the other proceedings in
The Court will normally pass the determination to a group the case. Evidence may be introduced by either party
of experts who are called commissioners. In these cases, before the commissioners who are authorized to
there will be trial by commissioners because judges are administer oaths on hearings before them, and the
not experts of the value of the lands expropriated. These commissioners shall, unless the parties consent to the
commissioners are real estate brokers or appraisers. contrary, after due notice to the parties to attend, view and
They will be the one to conduct the hearing. In arriving at examine the property sought to be expropriated and its
just compensation, there is a formula for that. First, surroundings, and may measure the same, after which
determine the market value of the property. either party may, by himself or counsel, argue the case.
The commissioners shall assess the consequential
MARKET VALUE damages to the property not taken and deduct from such
consequential damages the consequential benefits to be
Is the price which it will command where it is offered for derived by the owner from the public use or purpose of
sale by one who desired, but is not obliged to sell, and is the property taken, the operation of its franchise by the
bought by one under no necessity of having it. corporation or the carrying on of the business of the
If the buyer and seller are so eager, it will be difficult to corporation or person taking the property. But in no case
arrive at a fair market value. shall the consequential benefits assessed exceed the
consequential damages assessed, or the owner be
EPZA V. DULAY, GR. NO. 59603, APRIL 29, 1987. deprived of the actual value of his property so taken. (6a)
The rule under PD 1533, 76, 464, 794, 1224, etc. that the
basis of just compensation shall be the fair market value 1. Taking of oath;
declared by the owner of the property or the market value 2. Reception of evidence;
determined by the assessor whichever is lower, has been 3. Allow parties to argue during hearing;
declared by the SC as unconstitutional. 4. The commissioner shall assess and add the
consequential damages of the property not taken
BASIS OF JUST COMPENSATION and deduct from such the consequential benefits.
The basis of just compensation shall be the value (FMV) In no case shall the consequential benefits
of the property at the time of its taking OR of the filing of exceed the consequential damage.
the complaint, whichever came first, (Section 4) plus the
consequential damages minus the consequential REPORT BY COMMISSIONERS
benefits, provided that the consequential benefits do not
exceed the assessed consequential damages (Sec. 6). SECTION 7. Report by Commissioners and Judgment
Legal interest must be paid as a matter of law from the Thereupon. — The court may order the commissioners
time the government takes over the land until it pays the to report when any particular portion of the real estate
owner thereof. shall have been passed upon by them, and may render
judgment upon such partial report, and direct the
FORMULA: commissioners to proceed with their work as to
JC = FMV + CD – CB subsequent portions of the property sought to be
expropriated, and may from time to time so deal with such
If there are consequential benefits, it will be deducted. If property. The commissioners shall make a full and
napikas imong yuta kay gi agi-an ug highway, you are accurate report to the court of all their proceedings, and
damaged but then are you not benefited? Ang kilid2 nga such proceedings shall not be effectual until the court
yuta which you still own, pila na man ang price? It used to shall have accepted their report and rendered judgment
be P50 per square meter but now it is P500 per square in accordance with their recommendations. Except as
meter. The benefit will be deducted from the damage but otherwise expressly ordered by the court, such report
in no case shall the consequential benefits exceed the shall be filed within sixty (60) days from the date the
consequential damage. If it exceeds, it will reduce the commissioners were notified of their appointment, which
FMV which should not be allowed. Let’s say: time may be extended in the discretion of the court. Upon

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the filing of such report, the clerk of the court shall serve REPUBLIC V. CFI OF PAMPANGA, L-27006, JUNE
copies thereof on all interested parties, with notice that 30, 1970
they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire. The trial court handling the expropriation proceeding has
(7a) the jurisdiction to determine conflicting claims of
ownership over the property involved in expropriation and
The commissioners shall render a report to the court to declare the lawful owner thereof.
which shall then be the basis of the court’s judgment.
Such report must be made within 60 days from Even if there are conflicting claims, it will not prevent the
appointment unless extended by the court. upon the filing government from going on with the project because it can
of the report, the clerk of court shall immediately notify the pursue whoever is the owner. The government will just
parties who are given ten (10) days to make their deposit the amount in the depository bank. Whoever wins,
objection if they so desire. you collect the money there.

ACTION UPON COMMISSIONERS' REPORT The court may order the deposit with the court of the
SECTION 8. Action Upon Commissioners' Report.— sum awarded as just compensation for the benefit of
Upon the expiration of the period of ten (10) days referred person adjudged as the rightful owner.
to in the preceding section, or even before the expiration
of such period but after all the interested parties have filed Duna may initial deposit which is based on the current
their objections to the report or their statement of zonal value, then mupadayon ang hearing, and there will
agreement therewith, the court may, after hearing, accept be a report by the commissioner, mas mudako pa gyud
the report and render judgment in accordance therewith; ang madawat, then the govt will add a certain amount to
or, for cause shown, it may recommit the same to the what has already been deposited. Whoever wins will be
commissioners for further report of facts; or it may set the one to collect that amount.
aside the report and appoint new commissioners; or it
may accept the report in part and reject it in part; and it Possession by the Government After Payment
may make such order or render such judgment as shall
secure to the plaintiff the property essential to the SECTION 10. Rights of Plaintiff After Judgment and
exercise of his right of expropriation, and to the defendant Payment.— Upon payment by the plaintiff to the
just compensation for the property so taken. (8a) defendant of the compensation fixed by the judgment,
with legal interest thereon from the taking of the
1. Accept the report and render judgment in possession of the property, or after tender to him of the
accordance therewith; amount so fixed and payment of the costs, the plaintiff
2. Recommit the same to the commissioners for shall have the right to enter upon the property
further report of facts; or expropriated and to appropriate it for the public use or
3. Set aside the report and appoint new purpose defined in the judgment, or to retain it should he
commissioners; or it may have taken immediate possession thereof under the
4. Accept the report in part and reject it in part; provisions of Section 2 hereof. If the defendant and his
5. Make such order that is fair and reasonable to counsel absent themselves from the court, or decline to
the parties. receive the amount tendered, the same shall be ordered
to be deposited in court and such deposit shall have the
Uncertain Ownership; Conflicting Claims. same effect as actual payment thereof to the defendant
or the person ultimately adjudged entitled thereto. (10a)
SECTION 9. Uncertain Ownership; Conflicting
Claims.— If the ownership of the property taken is 1. Possession by the government after payment.
uncertain, or there are conflicting claims to any part The plaintiff shall have the right to enter upon
thereof, the court may order any sum or sums awarded the property expropriated and to appropriate it for
as compensation for the property to be paid to the court the public use or purpose defined in the
for the benefit of the person adjudged in the same judgment, or to retain it should he have taken
proceeding to be entitled thereto. But the judgment shall immediate possession thereof.
require the payment of the sum or sums awarded to either
the defendant or the court before the plaintiff can enter 2. Deposit if owner refuses to accept payment. If
upon the property, or retain it for the public use or purpose the defendant and his counsel absent themselves
if entry has already been made. (9a) from the court, or decline to receive the amount
tendered, the same shall be ordered to be
deposited in court

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 Entry Not Delayed by Appeal; Effect of Reversal Power of Guardian in Such Proceedings

SECTION 11. Entry Not Delayed by Appeal; Effect of SECTION 14. Power of Guardian in Such
Reversal. — The right of the plaintiff to enter upon the Proceedings.— The guardian or guardian ad litem of a
property of the defendant and appropriate the same for minor or of a person judicially declared to be incompetent
public use or purpose shall not be delayed by an appeal may, with the approval of the court first had, do and
from the judgment. But if the appellate court determines perform on behalf of his ward any act, matter, or thing
that plaintiff has no right of expropriation, judgment shall respecting the expropriation for public use or purpose of
be rendered ordering the Regional Trial Court to forthwith property belonging to such minor or person judicially
enforce the restoration to the defendant of the possession declared to be incompetent, which such minor or person
of the property, and to determine the damages which the judicially declared to be incompetent could do in such
defendant sustained and may recover by reason of the proceedings if he were of age or competent. (14a)
possession taken by the plaintiff. (11a)
RA 7160
Entry is not delayed by appeal. If on appeal the judgment EXPROPRIATION BY LOCAL GOVERNMENT UNITS
is reversed, the owner may recover damages. (RA 7160)

Costs and Fees WHO CAN FILE?

The chief executive acting through an ordinance.
SECTION 12. Costs, by Whom Paid. — The fees of the
commissioners shall be taxed as a part of the costs of the CONDITIONS
proceedings. All costs, except those of rival claimants 1. A valid and definite offer must have been
litigating their claims, shall be paid by the plaintiff, unless previously made to owner and was not accepted.
an appeal is taken by the owner of the property and the 2. The LGY may immediately take possession of the
judgment is affirmed, in which event the costs of the property upon making the deposit of at least 15%
appeal shall be paid by the owner. (12a) of the fair market value at the time of taking.

Costs and fees of the commissioners shall be paid by the LBP V. MANZANO ET AL, GR NO 188243, JAN 24,
plaintiff. If the owner appeals and found unmeritorious, the 2018
owner shall shoulder the cost of appeal. Just compensation of lands expropriated under the
Comprehensive Agrarian Reform Law (RA 6657) is to be
Recording Judgment, and its Effect determined by the RTC acting as a Special Agrarian
Court. The determination of just compensation by the
SECTION 13. Recording Judgment, and its Effect.— DARAB pursuant to RA 6657 is only recommendatory and
The judgment entered in expropriation proceedings shall not binding. The final decision on the value of just
state definitely, by an adequate description, the particular compensation lies solely on the RTC acting as a Special
property or interest therein expropriated, and the nature Agrarian Court.
of the public use or purpose for which it is expropriated.
When real estate is expropriated, a certified copy of such The jurisdiction over all agrarian matters is not transferred
judgment shall be recorded in the registry of deeds of the to the DARAB but there are still matters retained by the
place in which the property is situated, and its effect shall RTC and these are the determination of just
be to vest in the plaintiff the title to the real estate so compensation and prosecution of criminal offenses
described for such public use or purpose. (13a) involving the Comprehensive Agrarian Reform Law.

WHEN TITLE TO PROPERTY VESTS

1. Personal property – upon payment of just
compensation;
2. Real property – Upon:
a. Payment of just compensation, and
b. Registration of property by recording of
the judgment in the RD where the
property is situated.

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 RULE 68 foreclosure can be had. Extrajudicial foreclosure is
FORECLOSURE OF REAL ESTATE MORTGAGE governed by RA 3135, as amended by Act 4118.

Real Estate Mortgage, defined. If there is no specific provision in the real estate mortgage,
then the only way to foreclose the mortgage is through
What is a real estate mortgage? judicial foreclosure. This is where Rule 68 will come in.
It is actually acollateral for the loan secured by the debtor.
It is a real property used as a collateral. If what is used Rule 68 will only apply to judicial foreclosure of a real
as collateral is a personal property, it shall be called estate mortgage.
chattel mortgage. If the collateral is a land, we call it real
estate mortgage. Monte: Because it is judicial, it means that it is the court
who will decide on the foreclosure.
When can there be foreclosure of real estate
mortgage? Extrajudicial
Judicial Foreclosure
The real estate mortgage that was used as a loan Foreclosure
obtained by the debtor can be foreclosed if the debtor Requires court No court intervention
fails to pay his obligation. The real estate shall be intervention necessary
foreclosed and the real property used as collateral can
now be sold in a public auction sale. There is only an equity of Right of redemption
redemption. [Huerta Alba exists; mortgagor has a
Foreclosure of mortgage is the process by which a Resort, Inc. v. CA, G.R. right to redeem the
mortgagee acquires an absolute title to the property of No. 128567 (2000)] property within one year
which he had previously been only the conditional owner, from registration of the
or upon which he had previously a mere lien or deed of sale. [Huerta Alba
encumbrance. [Benedicto v. Yulo, G.R. No. L-8106 Resort, Inc. v. CA, G.R.
(1913)] No. 128567 (2000), citing
Act 3135]
Foreclosure is the necessary consequence of non- Governed by Rule 68 Governed by Act 3135
payment of mortgage indebtedness. The mortgage can
be foreclosed only when: There could be a No deficiency judgment
1. The debt remains unpaid at the time it is due [Producers deficiency judgment. [Sec. because there is no
Bank v. CA, G.R. No. 111584 (2001)], or 6, Rule 68] judicial
2. In case of default in the payment of obligation [PNB v. proceeding in the
CA, G.R. No. 126908 (2003)] foreclosure of the
mortgage itself. [1
The cause of action in a foreclosure suit is generally the Regalado 859, 2010 Ed.]
non-payment of the mortgage loan, but it may be on other
grounds which under the contract warrant the foreclosure, Deficiency judgment shall Recovery of deficiency is
such as the violation of the other conditions be rendered, on motion. [1 through an independent
therein. [1 Regalado 852, 2010 Ed.] Regalado 859, 2010 Ed.] action. [1 Regalado 859,
(UP BOC 2020) 2010 Ed.]

Two (2) Kinds of Foreclosure of REM Exception: Mortgagor Exception: Juridical

may exercise right of persons shall have the
1. Judicial Foreclosure – mode of foreclosure that is redemption within one right to redeem until, but
done pursuant to Rule 68 of the ROC year after the sale, when not after, the registration
the loan or credit of the certificate of
2. Extrajudicial Foreclosure – mode of foreclosure accommodation is foreclosure sale with the
that is done pursuant to Act 3135 as amended by Act granted by a bank [Sec. Register of Deeds which
4418 47, R.A. 8791] in no case shall be more
than 3 months after
Extrajudicial Foreclosure is allowed only when so foreclosure,
provided in the contract in accordance with RA 3135, as whichever is earlier. [Sec.
amended by Act 4118. 47, R.A. 8791]

Monte: IOW, when the real estate mortgage expressly

authorize the creditor to foreclose the mortgage (UP BOC 2020)
extrajudicially, then that is the time that the extrajudicial

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 Sec 1 – Complaint in Action for Foreclosure exclusive original jurisdiction would fall either in the
MTC or the RTC depending on the assessed value. [2
SECTION 1. Complaint in Action for Foreclosure.— In Riano 312-313, 2016 Bantam Ed.]
an action for the foreclosure of a mortgage or other
encumbrance upon real estate, the complaint shall set
forth the date and due execution of the mortgage; its Judicial Foreclosure vs Extrajudicial Foreclosure
assignments, if any; the names and residences of the
mortgagor and the mortgagee; a description of the Extrajudicial
Judicial Foreclosure
mortgaged property; a statement of the date of the note Foreclosure
or other documentary evidence of the obligation secured Proper only when so No agreement in the
by the mortgage, the amount claimed to be unpaid provided in the contract contract
thereon; and the names and residences of all persons (which is the REM)
having or claiming an interest in the property
subordinate in right to that of the holder of the Governed by RA No. Governed by Rule 68 of
mortgage, all of whom shall be made defendants in 3135 as amended by Act the Rules of Court
the action. (1a) 4115 (See: AM No. 99-
10-05-0 for present
Verified Complaint procedure)

What will you do if you will foreclose the mortgage There is right of There is no right of
judicially? redemption redemption
You have to file a verified complaint for foreclosure.
Complaint for Foreclosure; Defendants
Where to File Complaint
Who must be joined as defendant?
The verified complaint for foreclosure shall be filed in the Debtor, Mortgagor (not necessarily the debtor) and all
Regional Trial Court of the place where the land is persons claiming an interest on the property subordinate
located. in right to that of the holder of the mortgage.

If there are several parcels of land mortgaged and located Monte: The debtor may not necessarily be the mortgagor.
in different areas, you can file it in the city or municipality It is possible that the debtor will borrow money from the
where any of these lands are located. creditor, but the collateral is owned by the debtor’s friend.
It is the friend who executed a real estate mortgage in
Monte: Before, you have to file it in the CFI of the province favor of the creditor to secure the debtor’s obligation.
where the land sought to be foreclosed is located. Since
we no longer have a CFI, the substitute for it now is the So if the creditor will file a judicial foreclosure of the
RTC. mortgage, he has to implead the debtor and the friend as
mortgagor. The principal debtor and the mortgagor shall
Venue be impleaded as defendants and all persons claiming an
A foreclosure action must be brought in the RTC of the interest on the property in right to that of the holder of the
province where the land or any part thereof is mortgage.
situated. If a mortgage contract covers several distinct
parcels of land situated in different provinces, the action Junior Encumbrancer
may be brought in the RTC of any of the provinces and
the judgment will be enforceable against any of the Persons having or claiming an interest in the property
parcels of land involved. [Monte de Piedad v. Rodrigo, subordinate in right to the holder of the mortgagee. (Sec
G.R. No. L-42928 (1936)] 1, Rule 68)

Nature of the action Monte: The junior encumbrancer must be impleaded.

An action to foreclose a real estate mortgage may be
rightly considered as an action involving interest in real Right of junior encumbrancer if not impleaded
property, hence a real action. [2 Riano 312-313, 2016
Bantam Ed.] His right to redeem is not foreclosed and he can therefore
redeem the property from the purchaser.
Jurisdiction
Under BP 129, where the action is one involving title to, A junior encumbrancer could be the other person to
or possession of, real property, the determination of whom the same property was mortgaged after it was first
jurisdiction shall be made by inquiring into the mortgaged to the first creditor.
assessed value of the property. From this point of view,

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Example: I borrowed money from you and executed a by a mortgage, the court will render judgment of
mortgage in your favor. So I am a debtor-mortgagor. Later foreclosure.
on, I borrowed money from another friend and also
mortgaged the same land I mortgaged to you. Since you Order Confirming Foreclosure Sale – After the
are the first mortgagee, the second mortgagee judgment of foreclosure, the court will order a
becomes the junior encumbrancer – that is if you have foreclosure sale and that foreclosure sale will be
registered your mortgage. So the second mortgagee is confirmed.
considered a junior encumbrancer since his right is
considered subordinate in right to that of the first Deficiency Judgment – If there is still a balance after the
mortgagee, because he acquired a lien on the property foreclosure sale, there will be a deficiency judgment.
subsequent to the mortgage.
Sec 2 – Judgment on Foreclosure for Payment or
When you foreclose the mortgage judicially, you also Sale
have to include the junior encumbrancer.
SECTION 2. Judgment on Foreclosure for Payment or
Why? Sale.— If upon the trial in such action the court shall find
In order to prevent him from redeeming the property from the facts set forth in the complaint to be true, it shall
whoever bought the property in the foreclosure sale. His ascertain the amount due to the plaintiff upon the
right to redeem is not foreclosed if he is not mortgage debt or obligation, including interest and other
impleaded as one of the defendants and he can charges as approved by the court, and costs, and shall
therefore redeem the property from the purchaser. render judgment for the sum so found due and order that
the same be paid to the court or to the judgment obligee
Three Stages of Judicial Foreclosure Subject of within a period of not less than ninety (90) days nor more
Appeal than one hundred twenty (120) days from the entry of
judgment, and that in default of such payment the
Each of these stages is subject to appeal: property shall be sold at public auction to satisfy the
1. Judgment on Foreclosure (Sec 2) judgment.
2. Order Confirming Foreclosure Sale (Sec 3)
3. Deficiency Judgment (Sec 6) JUDGMENT ON FORECLOSURE
N.B. In judicial foreclosure, there is no right of redemption When Payment is Made (*90-120* days)
except mortgages with the bank, but the mortgagor has
the equity of redemption before the confirmation of the Monte: After the judgment of foreclosure, the debtor-
foreclosure sale. mortgagor is given a certain period to pay. The period is
not less than 90 days but note more than 120 days.
Monte: Let us discuss each stages.
From the time of entry of the judgment for foreclosure,
When you file a complaint for judicial foreclosure, meaning, it is from the time the judgment of foreclosure
what does it contain? becomes final. When does it become final? After the lapse
It contains who borrowed from you, who owns the real of the period to appeal and no appeal is filed. Remember
property that was used as a collateral, how much was the that a judgment of foreclosure is appealable.
loan obligation, how much is the total obligation of the
debtor secured by the mortgage. Foreclosure is another example of a multiple appeal. If
you appeal the judgment of foreclosure, the appeal should
If the court is convinced that indeed the defendant is be by Records of Appeal.
indebted to the plaintiff, and that the defendant has not
paid its obligation which is secured by a mortgage, the When Order of Foreclosure is Made
court will render judgment of foreclosure.
Upon failure to pay the debt within the period under
And then, later on, it will order a foreclosure sale and Section 2 (90-120 days), it is the ministerial duty of the
that foreclosure sale will be confirmed. court to order the foreclosure sale. It can be done ex
parte.
Thereafter, if there is a balance – there is a deficiency
judgment. Monte: Once the court orders a judgment of foreclosure
and the judgment becomes final, you have not less than
SUMMARY 90 days and not more than 120 days to pay your
Judgment of Foreclosure - If the court is convinced that obligation and prevent the foreclosure sale. If you fail
indeed the defendant is indebted to the plaintiff, and that to pay within that period – after 120 days, the court will
the defendant has not paid is obligation which is secured issue an order of foreclosure. Therefore, there will be a

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sale to be conducted by the sheriff of the court. It is like What is an equity redemption?
an execution sale under Rule 39. It is the right of the debtor to redeem before the
confirmation of the foreclosure sale.
Sec 3 – Sale of Mortgage Property; Effect
From the time the court renders a judgment of
SECTION 3. Sale of Mortgage Property; Effect.— foreclosure, the debtor has 15 days to appeal. Failure to
When the defendant, after being directed to do so as appeal, the judgment of foreclosure becomes final. From
provided in the next preceding section, fails to pay the the time the judgment of foreclosure becomes final, you
amount of the judgment within the period specified have a period of 120 days to redeem the property. You
therein, the court, upon motion, shall order the property to can pay your loan obligation not earlier than 90 days but
be sold in the manner and under the provisions of Rule 39 not more than 120 days. But within this period – from
and other regulations governing sales of real estate under the time of judgment of foreclosure up to the time of 120
execution. Such sale shall not affect the rights of persons days – you can pay your entire obligation and prevent
holding prior encumbrances upon the property or a part the foreclosure sale.
thereof, and when confirmed by an order of the court, also
upon motion, it shall operate to divest the rights in the If you did not, the court will order the foreclosure sale.
property of all the parties to the action and to vest their Once it is sold to the highest bidder, the court will issue
rights in the purchaser, subject to such rights of an order of confirmation of sale. But until the court has
redemption as may be allowed by law. issued an order of confirmation, the debtor can still
redeem the property from the creditor. That is called
Upon the finality of the order of confirmation or upon the equity of redemption.
expiration of the period of redemption when allowed by
law, the purchaser at the auction sale or last Exception: Mortgages with the Bank
redemptioner, if any, shall be entitled to the possession of
the property unless a third party is actually holding the NOTE: In judicial foreclosure, there is no right of
same adversely to the judgment obligor. The said redemption except mortgages with the bank, but the
purchaser or last redemptioner may secure a writ of mortgagor has the equity of redemption BEFORE the
possession, upon motion, from the court which ordered confirmation of the foreclosure sale.
the foreclosure. (3a)
In judicial foreclosure of mortgages by PNB, DBP, and
Confirmation of Sale (Effect) other banking institutions, the mortgagor has one year
from the registration of the deed of sale, whether the
Motion for Confirmation of Sale requires hearing to give foreclosure was judicial or extra-judicial. But, the party
the mortgagor to show cause why the sale should not be redeeming must pay the amount fixed by the court in the
confirmed. Upon confirmation, the equity redemption is order of execution, not the amount for which the property
cut off, except if done by the bank i.e. DBP, PNB was purchased at public auction.

Monte: After the order of judgment of foreclosure and Monte: In the case of mortgages with the bank,
thereafter, the foreclosure sale, the court will now issue particularly government banks such as DBP and PNB, a
an order confirming the sale. This is now the confirmation judicial foreclosure of a real estate mortgage conducted
of sale. The Motion for Confirmation of Sale requires a by the bank has no equity redemption. BUT then the
hearing to give the mortgagor to show cause why the sale debtor-mortgagor is still given the right to redeem the
should not be confirmed. Upon confirmation, the equity property within a period of one year from the
redemption is cut off, except if done by the bank. foreclosing mortgagee (bank).

In judicial foreclosure sale, there is no right of If the bank foreclosed the mortgage, the debtor-
redemption. The debtor-mortgagor cannot redeem the mortgagor can still exercise right of redemption
property unlike in extrajudicial foreclosure. within a period of 1 year. BUT – there is a big BUTt –
when the mortgagor-debtor will redeem the land that
In an extrajudicial foreclosure, the debtor-mortgagor can was foreclosed by the bank, he will not just pay the
redeem the property that was sold in a foreclosure sale amount of the foreclosure sale paid by the purchaser
within 1 year from the registration of the certificate of in order for him to get back his land, but HE MUST
sale issued by the sheriff after the foreclosure sale. PAY the ENTIRE LOAN to the bank. He is given a 1 year
period to redeem, but if he so decides to redeem it, he
But in judicial foreclosure, there is no 1 year redemption must pay the full loan obligation, and not just the amount
period. However, the debtor has an equity redemption. paid by the purchaser in the foreclosure sale.

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There is no right of redemption in a judicial Monte: There is another person holding the property
foreclosure under Rule 68. This right exists only in adverse to the debtor. In which case, the sheriff cannot
extrajudicial foreclosure where there is always a right evict that person without court proceeding. Magkinihaay
of redemption within one year from the date of sale, but na sad sila because that person who is holding the
interpreted by the court to mean one year from the property adverse to the debtor shall be given his day in
registration of the sale. court. Since he is not party to the mortgage, he must be
given the chance to show to the court how he acquired
In judicial foreclosure, there is only an equity of possession of the property.
redemption which can be exercised prior to the order of
confirmation of the foreclosure sale. This means that after The writ of possession is a means of recognizing and
the foreclosure sale but before its confirmation, the enforcing the rights of the purchaser, since the
mortgagor may exercise his right to pay the proceeds of confirmation of the foreclosure sale operates to divest all
the sale and prevent the confirmation of the sale. parties to the action of their rights in the property and
• Exception: There is a right of redemption in a judicial vests them in the purchaser. [2 Riano 320, 2016 Bantam
foreclosure if the foreclosure is in favor of banks, as Ed.]
provided for in the General Banking Law. [Sec. 47]
General Rule: Upon the finality of the order of
Equity Redemption Right of Redemption confirmation or upon the expiration of the period of
Right of defendant Right of the debtor, his redemption, the purchaser at the auction sale or last
mortgagor to extinguish successor in interest, or redemptioner, if any, shall be entitled to the possession of
the mortgage and retain any judicial creditor of the property.
ownership of the property said debtor or any person
by paying the secured having a lien on the Order of Confirmation
debt within the 90 to 120- property subsequent to • After the foreclosure sale, the mortgagee should file a
day period after entry of the motion for the confirmation of the sale. Such requires
judgment or even after the mortgage. notice and hearing. During the hearing, the mortgagor
foreclosure sale but prior will be allowed to show why the sale should not be
to its confirmation Period of redemption is 1 confirmed. If, after such, the court finds ground to
year from the date of confirm, it shall issue the order of confirmation. [2
registration of certificate Riano 318-319, 2016 Bantam Ed.]
of sale • Such order of confirmation is appealable. [2 Riano
320, 2016 Bantam Ed.]
Governed by Rule 68 Governed by Secs. 29-31, • Such order removes from the parties the right to the
Rule 39 property, and grants such right to the purchaser,
subject to redemption. [2 Riano 319, 2016 Bantam
Ed.]
Note: What Secs. 2-3, Rule 68 provide for is the
mortgagor’s equity of redemption. This may be exercised Exception: When a third party is actually holding the
by him even beyond the period to pay the judgment same adversely to the judgement obligor. In such a
obligation (i.e. 90-120 days) and even after the case, the purchaser or the last redemptioner may secure
foreclosure sale itself, provided it be before the order of a writ of possession, upon motion, from the court. [Sec. 3,
the confirmation of sale. [Rosales v. Alfonso, G.R. No. Rule 68]
137792 (2003)]
Sec 4 – Disposition of Proceeds of Sale
Writ of Possession
SECTION 4. Disposition of Proceeds of Sale.— The
After the confirmation of the sale, the purchaser becomes amount realized from the foreclosure sale of the
the owner of the property. That is when the purchaser of mortgaged property shall, after deducting the costs of the
the property will acquire ownership and that is when he sale, be paid to the person foreclosing the mortgage, and
will ask the court to issue a writ of possession to place him when there shall be any balance or residue, after paying
in possession of the land he bought in the foreclosure off the mortgage debt due, the same shall be paid to junior
sale. The court will issue a writ of execution and order encumbrancers in the order of their priority, to be
the sheriff to place the purchaser of the land in possession ascertained by the court, or if there be no such
of the land. encumbrancers or there be a balance or residue after
payment to them, then to the mortgagor or his duly
Exception: Unless a third party is actually holding the authorized agent, or to person entitled to it.
property adverse to the debtor

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How is the proceeds of the sale disposed of? sa court ang debtor-mortgagor sa balance. That is
The proceeds of the sale will now be given to the what we call as deficiency judgment.
mortgagee-creditor. If the proceeds is more than the
obligation – for example the loan is only 1M but the land IOW, the creditor does not have to file another case to
was sold for 1.3M, the excess of 300K will be given to the recover the balance. In the very same case of judicial
mortgagor-debtor. foreclosure, the court can order the debtor-mortgagor to
pay the balance. If he cannot pay, the mortgagee can ask
If there is a junior encumbrancer impleaded as a the court for a writ of execution so that the other properties
defendant – one who has acquired a lien subsequent to of the judgment debtor or debtor-mortgagor can be made
the mortgage – the excess of 300K will be given to him to answer for the balance.
in order that he can also recover the indebtedness of
the debtor-mortgagor. The balance will be given to him. No deficiency judgment if the mortgagor is a third
person
Sec 5 – How Sale to proceed in Case the Debt is Not But there is no deficiency judgment if the mortgagor is not
All Due the principal debtor but a third person. There is no
deficiency judgment if the mortgagor is a third person.
SECTION 5. How Sale to Proceed in Case the Debt is
Not All Due.— If the debt for which the mortgage or To recover the balance, the mortgagee will have to file a
encumbrance was held is not all due as provided in the separate action just like in an extrajudicial foreclosure of
judgment, as soon as a sufficient portion of the property mortgage.
has been sold to pay the total amount and the costs due,
the sale shall terminate; and afterwards, as often as more Sec 7 – Registration
becomes due for principal or interest and other valid
charges, the court may, on motion, order more to be sold. SECTION 7. Registration.— A certified copy of the final
But if the property cannot be sold in portions without order of the court confirming the sale shall be registered
prejudice to the parties, the whole shall be ordered to be in the registry of deeds. If no right of redemption exists,
sold in the first instance, and the entire debt and costs the certificate of title in the name of the mortgagor shall
shall be paid, if the proceeds of the sale be sufficient be cancelled, and a new one issued in the name of the
therefor, there being a rebate of interest where such purchaser.
rebate is proper. (5a)
Where a right of redemption exists, the certificate of title
Sec 6 – Deficiency Judgment in the name of the mortgagor shall not be cancelled, but
the certificate of sale and the order confirming the sale
SECTION 6. Deficiency Judgment.— If upon the sale of shall be registered and a brief memorandum thereof
any real property as provided in the next preceding made by the registrar of deeds upon the certificate of title.
section there be a balance due to the plaintiff after In the event the property is redeemed, the deed of
applying the proceeds of the sale, the court, upon motion, redemption shall be registered with the registry of deeds,
shall render judgment against the defendant for any such and a brief memorandum thereof shall be made by the
balance for which, by the record of the case, he may be registrar of deeds on said certificate of title.
personally liable to the plaintiff, upon which execution may
issue immediately if the balance is all due at the time of If the property is not redeemed, the final deed of sale
the rendition of the judgment; otherwise, the plaintiff shall executed by the sheriff in favor of the purchaser at the
be entitled to execution at such time as the balance foreclosure sale shall be registered with the registry of
remaining becomes due under the terms of the original deeds; whereupon the certificate of title in the name of the
contract, which time shall be stated in the judgment. (6a) mortgagor shall be cancelled and a new one issued in the
name of the purchaser. (n)
Monte: If the proceeds is not sufficient to pay the loan
obligation of the mortgagor to the mortgagee, then there Registration of the final order confirming the sale in the
will be a deficiency judgment that will be issued by the Registry of Deeds. If no right of redemption exists, the
court. certificate of title of the mortgagor shall be cancelled, a
new one will be issued in the name of the purchaser. If
Deficiency Judgment means that the court will order the there is right of redemption, the order shall be annotated
mortgagor to pay the balance. only. If not redeemed, the final deed of sale shall be
registered and only then that the title will be cancelled and
Example: His obligation is 1M and the REM was judicially in lieu thereof a new title will be issued to the purchaser.
foreclosed. Remember that in extrajudicial forecelosure,
there is no deficiency judgment. But in judicial AM No. 99-10-05-0
foreclosure, if the proceeds is not enough, pabayron No TRO or Injunction is allowed in extrajudicial or judicial
foreclosure of REM.

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 18 of 22

 Sec 8 - Applicability of other Provisions Sec 1 – Complaint for Partition of Real Estate

SECTION 8. Applicability of Other Provisions.— The SECTION 1. Complaint in Action for Partition of Real
provisions of sections 31, 32 and 34 of Rule 39 shall be Estate.— A person having the right to compel the partition
applicable to the judicial foreclosure of real estate of real estate may do so as provided in this Rule, setting
mortgages under this Rule insofar as the former are not forth in his complaint the nature and extent of his title and
inconsistent with or may serve to supplement the an adequate description of the real estate of which
provisions of the latter. (8a) partition is demanded and joining as defendants all other
persons interested in the property. (1a)
RULE 69
PARTITION Complaint for Partition

Voluntary and Compulsory Partition If a co-owner will file a judicial partition, he must implead
as defendants all the other co-owners. All the co-owners
Two (2) Kinds of Partition must be impleaded because they are all
1. Voluntary Partition indispensable parties.
2. Compulsory Partition
Monte: Failure to implead all of the parties is fatal to your
Partition will take place if a property is owned by several complaint. If one of the co-owners refuse to participate,
persons. They are co-owners over several properties. he can be impleaded as a defendant. Those who are in
favor of partition shall be joined as plaintiffs. Those who
Example: Property left behind both deceased parents. do not want the partition, you will implead them as
They have so many properties left behind to the 5 defendants.
children. All the 5 children will become co-owners of these
properties left behind by the parents. Where to File

You cannot have this properties remain in co-ownership. Where will you file the complaint for partition?
Anyone can demand for partition. If you want to get Regional Trial Court where the properties are located. If
your share, you cannot be compelled to stay in the co- there are several properties located in different areas, you
ownership. You may demand for the co-ownership to be can file it in different places where any of the properties
dissolved and the property will now be partitioned. are located.

Voluntary Partition (Extrajudicial Partition) Sec 2 – Order of Partition: Voluntary or Compulsory

If you and your siblings agree on how to partition it, that is SECTION 2. Order for Partition, and Partition by
very good. You do not have to go to court. You can Agreement Thereunder.— If after the trial the court finds
partition the property extrajudicially – that is what we call that the plaintiff has the right thereto, it shall order the
as extrajudicial partition. The other term for that is partition of the real estate among all the parties in interest.
voluntary partition. Thereupon the parties may, if they are able to agree,
make the partition among themselves by proper
Compulsory Partition (Judicial Partition) instruments of conveyance, and the court shall
confirm the partition so agreed upon by all the
If you cannot agree on how to partition, you will go to court parties, and such partition, together with the order of the
and the latter will be the one to effect the partition of the court confirming the same, shall be recorded in the
property. This is what we call as compulsory partition or registry of deeds of the place in which the property is
judicial partition. situated. (2a)

Judicial Partition can be resorted only when the co- A final order decreeing petition and accounting may be
owners cannot agree among themselves on how to appealed by any party aggrieved thereby. (n)
partition the property. Anyone of the co-owners can
demand for partition. If the other co-owners will not agree, Order of Partition
he can go to court and file a complaint for partition of
real estate. This is where Rule 69 will come in – judicial The Complaint for Partition must be heard by the court. It
partition. must be set for hearing. During the hearing, the parties
will be allowed to present their respective evidence. After
the hearing, the court will decide.

When the court decides to grant the prayer for

partition, it will issue an Order of Partition. The

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partition from then on can be done either voluntarily or Sec 4 – Oath and Duties of Commissioners
compulsorily.
SECTION 4. Oath and Duties of Commissioners.—
Confirmation of Partition Before making such partition, the commissioners shall
take and subscribe an oath that they will faithfully perform
It is possible that after the court decided to grant the their duties as commissioners, which oath shall be filed in
partition and issued the decree of partition, it is possible court with the other proceedings in the case. In making
that they will come into an agreement. If they will agree, the partition, the commissioners shall view and examine
their partition will now be voluntary. But since there the real estate, after due notice to the parties to attend at
is already a case filed, what they have mutually such view and examination, and shall hear the parties as
agreed on how to divide the property, they will submit to their preference in the portion of the property to be set
it to the court for confirmation of the partition. apart to them and the comparative value thereof, and
shall set apart the same to the parties in lots or parcels as
Recording of the Order of Confirmation with the will be most advantageous and equitable, having due
ROD regard to the improvements, situation and quality of the
different parts thereof.
The Order of Confirmation of the Partition must be
recorded in the office of the Register of Deeds because Monte: Before the Commissioners will assume their
that will be the basis for the ROD in cancelling the old title functions, they will have to take an oath and duties as
and issuing a new title in favor of a co-owner to whom that Commissioners. This is the same as in expropriation.
property was adjudged in that project of partition.
Partition and Expropriation has a lot of common
Order of partition provisions like the appointment of a Commissioner.
If after the trial the court finds that the plaintiff has the right
thereto, it shall order the partition of the real estate among Sec 5 – Assignment or Sale of Real Property
all the parties in interest. [Sec. 2, Rule 69]
SECTION 5. Assignment or Sale of Real Estate by
Partition by agreement Commissioners.— When it is made to appear to the
a. The parties may, if they are able to agree, make the commissioners that the real estate, or a portion thereof,
partition among themselves by proper instruments of cannot be divided without prejudice to the interests of the
conveyance, parties, the court may order it assigned to one of the
b. The court shall confirm the partition so agreed upon by parties willing to take the same, provided he pays to
all the parties, and the other parties such amounts as the commissioners
c. Such partition, together with the order of the court deem equitable, unless one of the interested parties asks
confirming the same, shall be recorded in the registry of that the property be sold instead of being so assigned, in
deeds of the place in which the property is situated. [Sec. which case the court shall order the commissioners to sell
2, Rule 69] the real estate at public sale under such conditions and
within such time as the court may determine. (5a)
Sec 3 – Commissioners to Make Partition When
Parties Fail to Agree Monte: In the partition, the commissioners will decide
how to apportion. If dili gyud nila matarong kay makwake
SECTION 3. Commissioners to Make Partition When gyud ang pagkabahin, the commissioner might as well
Parties Fail to Agree.— If the parties are unable to agree advice the co-owners to sell the property and divide the
upon the partition, the court shall appoint not more than proceeds among them – OR if not, sell the property to
three (3) competent and disinterested persons as one of them and a Deed of Assignment will be made
commissioners to make the partition, commanding them in favor of one and he will be the one to pay the other
to set off to the plaintiff and to each party in interest such co-owners their rightful share.
part and proportion of the property as the court shall
direct. (3a) This can be done except if one of the co-owners will
object. That is when the commissioners will decide to sell
Monte: If they still cannot agree despite the Order of it to other persons.
Partition, the court will appoint not more than three (3)
Commissioners to effect the partition of the properties. Assignment of real estate to one party
General rule: When it is made to appear to the
The Commissioners will be the one to decide how to commissioners that the real estate, or a portion thereof,
apportion the properties fairly to all the co-owners. cannot be divided without prejudice to the interests of the
parties, the court may order it assigned to one of the

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parties willing to take the same, provided he pays to the Hearing on the report
other parties such amounts as the commissioners deem
equitable. a. Upon the expiration of the period of 10 days to file
objections, or
Exception: If one of the interested parties asks that the
property be sold instead of being so assigned, in which b. Even before the expiration of such period but
case the court shall order the commissioners to sell the after the interested parties have filed their
real estate at public sale under such conditions and within objections to the report or their statement of
such time as the court may determine. [Sec. 5, Rule 69] agreement therewith, the court may:

Sec 6 – Report of the Commissioners 1. Upon hearing, accept the report and render judgment
in accordance therewith, or,
SECTION 6. Report of Commissioners; Proceedings 2. For cause shown, recommit the same to the
Not Binding Until Confirmed.— The commissioners commissioners for further report of facts, or
shall make a full and accurate report to the court of all 3. Set aside the report and appoint new commissioners,
their proceedings as to the partition, or the assignment of or
real estate to one of the parties, or the sale of the same. 4. Accept the report in part and reject it in part.
Upon the filing of such report, the clerk of court shall serve
copies thereof on all the interested parties with notice that The court may make such order and render such
they are allowed ten (10) days within which to file judgment as shall effectuate a fair and just partition of the
objections to the findings of the report, if they so desire. real estate, or of its value, if assigned or sold as above
No proceeding had before or conducted by the provided, between the several owners thereof.
commissioners shall pass the title to the property or bind
the parties until the court shall have accepted the report Sections 8 – 13 (not discussed)
of the commissioners and rendered judgment thereon.
(6a) SECTION 8. Accounting for Rent and Profits in Action
for Partition.— In an action for partition in accordance
Monte: After that the Commissioners will render a report with this Rule, a party shall recover from another his just
to the court. share of rents and profits received by such other party
from the real estate in question, and the judgment shall
Sec 7 – Action of the Court on the Report include an allowance for such rents and profits. (8a)

SECTION 7. Action of the Court Upon SECTION 9. Power of Guardian in Such

Commissioners' Report.— Upon the expiration of the Proceedings.— The guardian or guardian ad litem of a
period of ten (10) days referred to in the preceding minor or person judicially to be incompetent may, with the
section, or even before the expiration of such period but approval of the court first had, do and perform on behalf
after the interested parties have filed their objections to of his ward any act, matter, or thing respecting the
the report or their statement of agreement therewith, the partition of real estate, which the minor or person judicially
court may, upon hearing, accept the report and render declared to be incompetent could do in partition
judgment in accordance therewith; or, for cause shown, proceedings if he were of age or competent. (9a)
recommit the same to the commissioners for further report
of facts; or set aside the report and appoint new SECTION 10. Costs and Expenses to be Taxed and
commissioners; or accept the report in part and reject it in Collected.— The court shall equitably tax and apportion
part; and may make such order and render such judgment between or among the parties the costs and expenses
as shall effectuate a fair and just partition of the real which accrue in the action, including the compensation of
estate, or of its value, if assigned or sold as above the commissioners, having regard to the interests of the
provided, between the several owners thereof. (7) parties, and execution may issue therefor as in other
cases. (10a)
What will be the action of the court to the report of the
commissioner? SECTION 11. The Judgment and its Effect; Copy to be
Just like in expropriation, the court may accept the Recorded in Registry of Deeds.— If actual partition of
recommendation of the commissioners and make it as property is made, the judgment shall state definitely, by
basis of its judgment or the court may recommit or metes and bounds and adequate description, the
remand the matter to the Commissioners or to deny particular portion of the real estate assigned to each party,
the report or modify the report. It is up to the judge and the effect of the judgment shall be to vest in each
because he is in command of everything. 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

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fact of such payment and of the assignment of the real
estate to the party making the payment, and the effect of
the judgment shall be 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 purchaser, and the effect of the judgment shall be 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. A certified copy of the judgment
shall in either case be recorded in the registry of deeds of
the place in which the real estate is situated, and the
expenses of such recording shall be taxed as part of the
costs of the action. (11a)

SECTION 12. Neither Paramount Rights Nor Amicable

Partition Affected by this Rule.— Nothing in this Rule
contained shall be construed so as to prejudice, defeat,
or destroy the right or title of any person claiming the real
estate involved by title under any other person, or by title
paramount to the title of the parties among whom the
partition may have been made; nor so as to restrict or
prevent persons holding real estate jointly or in common
from making an amicable partition thereof by agreement
and suitable instruments of conveyance without recourse
to an action. (12a)

SECTION 13. Partition of Personal Property.— The

provisions of this Rule shall apply to partitions of estates
composed of personal property, or of both real and
personal property, in so far as the same may be
applicable.

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 22 of 22

 RULE 70 One year from when?
FORCIBLE ENTRY & UNLAWFUL DETAINER A:
1) If it is a forcible entry case, the one-year period
Monte: Okay class, let’s now discuss Rule 70, which is will start to run from the dispossession if the
the rule on ejectment. dispossession was done through force,
intimidation or threat. But if the dispossession
Now, as you very well know, there are two kinds of was through stealth or strategy, then the one-year
ejectment: period will start to run from the discovery by the
1) Forcible entry plaintiff of the dispossession;
2) Unlawful detainer
Monte: In forcible entry cases, the plaintiff was
Sec. 1. Who May Institute Proceedings and When dispossessed by the use of force, intimidation,
threats, stealth or strategy. In other words, the
Section 1. Who may institute proceedings, and when. possession of the defendant of the property was
— Subject to the provisions of the next succeeding unlawful from the very start. Whereas in unlawful
section, a person deprived of the possession of any land detainer, the possession of the defendant is
or building by force, intimidation, threat, strategy, or lawful from the start. So, this is one of the basic
stealth, or a lessor, vendor, vendee, or other person distinctions between forcible entry and unlawful
against whom the possession of any land or building is detainer.
unlawfully withheld after the expiration or termination of
the right to hold possession, by virtue of any contract, 2) In an unlawful detainer case, the one-year period
express or implied, or the legal representatives or assigns will start to run from the date of the last demand
of any such lessor, vendor, vendee, or other person, may, to vacate. (A/N: This was supplied, as Dean did
at any time within one (1) year after such unlawful not discuss this in his lecture.)
deprivation or withholding of possession, bring an action
in the proper Municipal Trial Court against the person or Distinguish Between Unlawful Detainer and Forcible
persons unlawfully withholding or depriving of Entry
possession, or any person or persons claiming under
them, for the restitution of such possession, together with Forcible Entry Unlawful Detainer
damages and costs. (1a) The possession of the The possession of the
defendant is unlawful from defendant was originally
Now, who may file an ejectment case? the very beginning, as he lawful, but then became
A: Under Sec. 1 of Rule 70, any person who is deprived acquired possession of unlawful by reason of the
of his possession, of his land or building by force, the land through: termination of his right to
intimidation, threat, strategy or stealth may bring an action a. Force the possession over the
for ejectment. And the kind of ejectment he will file is the b. Intimidation property under his
forcible entry case. c. Threats contract with the plaintiff.
d. Stealth or
Now, if the plaintiff is dispossessed of the property e. Strategy Example: There is a
because it is now in the possession of a person against contract of lease. The
whom the action is filed, and that person unlawfully defendant leased the land
withheld the possession of that property from the plaintiff, from the plaintiff. So, his
even after the expiration or termination of the right to hold possession of the land is
possession, then an ejectment case of unlawful detainer valid. When the lease
can be filed by the plaintiff against the defendant. contract expires, the
plaintiff no longer wants to
So, where do you file the ejectment case? extend the contract. So,
A: The ejectment case falls in the jurisdiction of the the plaintiff wants to get
Municipal Trial Court. So, you file the ejectment case back possession of the
whether it is one for forcible entry or unlawful detainer in land because he wants to
the MTC of the place where the land/building which is the use it. Now, the defendant
subject matter of the case is situated. refused to return the
possession of the land to
Now, when can you file the ejectment case? the plaintiff. So, this is
A: Ejectment cases must be filed only within a period of where unlawful detainer
one (1) year. will lie.
There is no need for a In unlawful detainer,
prior demand to vacate previous demand is
because his possession required or is necessary

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 1 of 14

 over the property is before you can file an Accion Publiciana (Real Right of Possession)
unlawful from the very ejectment case. You have
beginning unlike the to make demand to the Monte: Accion publiciana is the recovery of the real right
defendant in the case of defendant to vacate. of possession.
an unlawful detainer,
whose possession was So, you want to recover your possession of the property,
lawful at the start but but the one-year period to file that has already expired.
which became unlawful Then your action to recover that real property will now be
after the period of the accion publiciana, and you file it now with the RTC.
contract expired, and he
refused to vacate. Accion Reivindicatoria (Ownership & Possession)
In forcible entry, the The plaintiff need not
plaintiff must prove that he have been in prior Monte: Accion reivindicatoria is not only recovery of
was in prior physical physical possession. possession, but also of ownership. And you file that also
possession of the in the RTC.
premises until he was
deprived thereof by the BERNABLE VS. DAYRIT, ET. AL.
defendant. G.R. No. 58399, October 27, 1983
The one year period to file The one-year period shall
a case is generally start to run from the date Monte: In the case of Bernabe vs. Dayrit, the court said:
counted from the date of of demand. And if there
actual entry into the land. were several demands If the defendant refuses to vacate on the ground that he
So, that is the time that the made, from the last is the lessee of the plaintiff’s predecessor-in-interest, the
defendant has demand. court will have to determine who has a better right of
dispossessed the plaintiff. possession and/or whether the antecedent lease contract
is binding on the plaintiff; hence, the case is an accion
Monte: So, what really determines the action, whether it publiciana and within the jurisdiction of the RTC, even if
is a forcible entry or unlawful detainer is the nature of the the action was brought within 1 year from demand to
defendant’s entry into the land. If the dispossession is vacate the premises.
not alleged to have taken place by any of the means
specified in Sec. 1 – and what are those means? The Issue is Only Physical or Material Possession

Forcible entry: the entry was by force, intimidation, threat, Monte: The issue in ejectment is only physical or material
stealth or strategy. Or, in unlawful detainer: the possession, or possession de facto – not possession de
possession of the defendant was lawful from the start but jure. So, who has the prior physical possession of the
it became unlawful after the period for the defendant to property.
stay has expired. So, if that is not specified or alleged in
the complaint, the action is a preliminary action, within the Take note that in ejectment, you can even file an
competence of the court of first instance. So, it will not be ejectment case against the real owner of the land if you
anymore considered as an ejectment case. And therefore, are in prior physical possession of the land, and you were
it may be filed even within 1 year from the dispossession dispossessed.
committed by the defendant in the court of first instance.
Example: There was a contract of lease, so your
There are actually three kinds of actions for the recovery possession is valid. Then, the owner of the land has
of possession of real property. dispossessed you even if the contract of lease has not
expired. You can file an ejectment case against the owner
Three Stages of Recovery of Possession of the land.

(1) Accion Interdictal (Ejectment) Sec. 2. Lessor to Proceed Against Lessee Only After
(2) Accion Publiciana (Real Right of Possession) Demand
(3) Accion Reivindicatoria (Ownership & Possession)
Section 2. Lessor to proceed against lessee only after
Accion Interdictal (Ejectment) demand. — Unless otherwise stipulated, such action by
the lesser shall be commenced only after demand to pay
Monte: This is what we now call as ejectment. So, it could or comply with the conditions of the lease and to vacate
either be forcible entry or unlawful detainer. This will be is made upon the lessee, or by serving written notice of
filed in the MTC. such demand upon the person found on the premises if
no person be found thereon, and the lessee fails to

Gaviola Sevilla Torres | REM Review 2020-2021 | Civil Procedure | Page 2 of 14

comply therewith after fifteen (15) days in the case of land though a monthly rent is paid, and no period for the lease
or five (5) days in the case of buildings. (2a) has been set, the courts may fix a longer term for the
lease after the lessee has occupied the premises for over
Distinguish Unlawful Detainer vs. “Tacita one year. If the rent is weekly, the courts may likewise
Reconduccion” determine a longer period after the lessee has been in
possession for over six months. In case of daily rent, the
Tacita Reconduccion courts may also fix a longer period after the lessee has
stayed in the place for over one month. (1581a)
When the period of lease has already expired, the Lessor
may bring an action for ejectment even without prior Rural Lands
demand.
In the case of rural land, the implied new lease is for a
However, if no demand is made, and the Lessee period necessary for the gathering of the fruits which the
continues in the possession of the premises with the estate may yield in one year, or which it may yield once.
acquiescence of the Lessor for 15 days after the expiry of
the term, an implied new lease is deemed to have been Urban Lands
made for a period of time provided in the Civil Code.
Or, in the case of urban lands, for the period as may be
Now, how do you distinguish unlawful detainer from fixed by the court depending on the period of prior
tacita reconduccion? And what is “tacita occupation by the lessee. This is what we call as “tacita
reconduccion”? reconduccion.” And it constitutes as a defense to unlawful
A: Now, you take note in Civil Law, the rule is that after detainer case.
the expiry of the term of the lease, the possession of the
lessee becomes unlawful, and the lessor may bring suit An implied new lease or tacita reconduccion will set in
for his ejectment even without prior notice. If the term of when the following requisites are found to exist: a) the
the contract of lease has already expired, and the lessee term of the original contract of lease has expired; b) the
refused to vacate, the plaintiff/lessor can bring an action lessor has not given the lessee a notice to vacate; and c)
even without prior notice. the lessee continued enjoying the thing leased for fifteen
days with the acquiescence of the lessor. [Paterno v.
However, if no notice has been given, and the lessee Court of Appeals, 339 Phil. 154, 160-161 (1997)]
continues in possession of the premises with the
acquiescence of the lessor for fifteen days after the expiry ROSALES VS. CFI OF LANAO DEL NORTE, ET. AL.
of the term, an implied new lease is deemed to have G.R. No. 62577, September 21, 1987
been made for the period or time provided for in the Civil Note: Not discussed; slide not shown
Code of the Philippines.
If the tenant filed a case in the RTC for the extension of
Pertinent Civil Code Provisions: the lease period AND the Lessor filed an ejectment case
in the MTC, the case in the RTC should be dismissed on
Article 1670. If at the end of the contract the lessee the ground of litis pendentia even if it was filed first
should continue enjoying the thing leased for fifteen days because the issue raised therein could very well be
with the acquiescence of the lessor, and unless a notice threshed out in the ejectment case.
to the contrary by either party has previously been given,
it is understood that there is an implied new lease, not for CO KENG KIAN VS. CA
the period of the original contract, but for the time G.R. No. 75676, August 29, 1990
established in Articles 1682 and 1687. The other terms of Note: Not discussed; slide not shown
the original contract shall be revived.
Demand to vacate shall be made personally or through
Article 1682. The lease of a piece of rural land, when its registered mail.
duration has not been fixed, is understood to have been
for all the time necessary for the gathering of the fruits Rules on Summary Procedure
which the whole estate leased may yield in one year, or
which it may yield once, although two or more years have Sec. 3. Summary Procedure
to elapse for the purpose. (1577a)
Section 3. Summary procedure. — Except in cases
Article 1687. If the period for the lease has not been
covered by the agricultural tenancy laws or when the law
fixed, it is understood to be from year to year, if the rent
otherwise expressly provides, all actions for forcible entry
agreed upon is annual; from month to month, if it is
and unlawful detainer, irrespective of the amount of
monthly; from week to week, if the rent is weekly; and from
damages or unpaid rentals sought to be recovered, shall
day to day, if the rent is to be paid daily. However, even

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be governed by the summary procedure hereunder reply, etc. – they are not allowed. We will discuss later
provided. (n) what are the prohibited pleadings.

Monte: Now, the Rules on Summary Procedure will apply Sec. 5. Action on Complaint
to ejectment cases – to both forcible entry and unlawful
detainer cases. Section 5. Action on complaint. — The court may, from
an examination of the allegations in the complaint and
Ejectment cases are under the Rules on Summary such evidence as may be attached thereto, dismiss the
Procedure. And under the Rules on Summary case outright on any of the grounds for the dismissal of a
Procedures, only small civil actions – only civil actions civil action which are apparent therein. If no ground for
where the amount involved is very small or not more than dismissal is found, it shall forthwith issue summons. (n)
P10,000.
Monte: So, when a complaint for ejectment is filed in the
However, by express provision of the law, ejectment MTC, considering that the case falls under the Rules on
cases – forcible entry and unlawful detainer – shall fall Summary Procedure, what will the court do with your
under the coverage of the Rules on Summary Procedures complaint?
irregardless of the amount of the claim for damages, or
claim of unpaid rentals. Okay. The action of the court, after the court made an
examination of the allegations in your complaint and such
So, bisan pa mangayo ang plaintiff ug unpaid rentals nga evidences that you may have attached to your complaint,
P500k, damages of another P500k, bisan muabot pa ug the court may dismiss your case outright on any of the
P1Mn ang claim sa plaintiff, it does not matter. Because grounds of the dismissal of an action which are apparent
what matters is that the main action, which is ejectment, in the complaint.
is governed by the Rules on Summary Procedure.
Or, when there is no ground or basis for the dismissal, it
From the title alone, “Summary” Procedure, means that shall issue summons and require the defendant to
the case can be decided expeditiously by the court answer.
without unnecessary delay. It can be decided
immediately. So, there are only two possibilities when your complaint
for ejectment is filed in the municipal court. The municipal
Sec. 4. Pleadings Allowed court may:
1) Dismiss your case outright; or
Section 4. Pleadings allowed. — The only pleadings 2) It may require – if the court finds that your
allowed to be filed are the complaint, compulsory complaint is sufficient in form and substance – it
counterclaim and cross-claim pleaded in the answer, and may require the defendant to file his answer. And
the answers thereto. All pleadings shall be verified. (3a, therefore, it will issue summons, and the
RSP) defendant will be required to file his answer.

Monte: Under the Rules on Summary Procedure, only a Sec. 6. Answers

few pleadings are allowed. And what are these pleadings
allowed under the Rules on Summary Procedure? They Section 6. Answers. — Within ten (10) days from service
are only the: of summons, the defendant shall file his answer to the
1) Complaint; complaint and serve a copy thereof on the plaintiff.
2) Compulsory counterclaim; and Affirmative and negative defenses not pleaded therein
3) Cross-claim shall be deemed waived, except lack of jurisdiction over
the subject matter. Cross-claims and compulsory
That’s it. But your counterclaim must be a compulsory counterclaims not asserted in the answer shall be
counterclaim, not a permissive counterclaim. And your considered barred. The answer to counterclaims or cross-
cross-claim is against your co-defendant. Both your claims shall be served and filed within ten (10) days from
counterclaim and cross-claim must be incorporated in service of the answer in which they are pleaded. (5 RSP)
your answer. In other words, your answer will be entitled
“Answer with Counterclaim” or “Answer with Cross- Monte: Now, if the defendant receives the summons and
Claim.” he is required to answer, his answer must be filed within
ten (10 ) days from service of summons, unlike in an
You cannot treat the counterclaim and the cross-claim ordinary civil action where the period to answer is fifteen
separately from the answer. So basically, what is allowed (15) days – and now, it is even thirty (30) days, under the
there is only the complaint and the answer. And your new Rules. Okay?
answer contains counterclaim or cross-claim. These are
the only pleadings allowed. No third-party complaint,

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So, within 10 days from service of summons, the Sec. 3 (c), Rule 9
defendant must file his answer to the complaint, and
serve a copy thereof to the plaintiff. The affirmative and Rule 9
the negative defenses not pleaded in the answer are Effect of Failure to Plead
deemed waived, except of course lack of jurisdiction over
the subject matter. Sec. 3. Default; declaration of. — If the defending party
fails to answer within the time allowed therefor, the court
Cross-claims and compulsory counterclaims not asserted shall, upon motion of the claiming party with notice to the
in the answer shall also be considered waived or barred. defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall
The answer to counterclaim or cross-claim shall be proceed to render judgment granting the claimant such
served and filed within 10 days from service of the answer relief as his pleading may warrant, unless the court in its
in which they are pleaded. So, if there’s a counterclaim, discretion requires the claimant to submit evidence. Such
the plaintiff will have to answer that counterclaim, and he reception of evidence may be delegated to the clerk of
is also given 10 days. court. (1a, R18)

If there’s a cross-claim from one defendant to another xxxx

defendant, the cross-defendant is also given 10 days to
file his answer. (c) Effect of partial default. — When a pleading
asserting a claim states a common cause of action
Sec. 7. Effect of Failure to Answer against several defending parties, some of whom answer
and the others fail to do so, the court shall try the case
Section 7. Effect of failure to answer. — Should the against all upon the answers thus filed and render
defendant fail to answer the complaint within the period judgment upon the evidence presented. (4a, R18).
above provided, the court, motu proprio or on motion of
the plaintiff, shall render judgment as may be warranted Sec. 8. Preliminary Conference
by the facts alleged in the complaint and limited to what is
prayed for therein. The court may in its discretion reduce Section 8. Preliminary conference; appearance of
the amount of damages and attorney's fees claimed for parties. — Not later than thirty (30) days after the last
being excessive or otherwise unconscionable, without answer is filed, a preliminary conference shall be held.
prejudice to the applicability of section 3 (c), Rule 9 if there The provisions of Rule 18 on pre-trial shall be applicable
are two or more defendants. (6, RSP) to the preliminary conference unless inconsistent with the
provisions of this Rule.
Now, what is the effect of the failure to answer on the
part of the defendant? The failure of the plaintiff to appear in the preliminary
A: If the defendant fails to file his answer to the complaint conference shall be cause for the dismissal of his
within the period of 10 days as required, the court may complaint. The defendant who appears in the absence of
motu propio render judgment as may be warranted by the the plaintiff shall be entitled to judgment on his
facts as alleged in the complaint, and limited to what is counterclaim in accordance with the next preceding
prayed for therein. section. All cross-claims shall be dismissed. (7, RSP)

Monte: So, if the defendant did not answer, the court can If a sole defendant shall fail to appear, the plaintiff shall
motu propio decide the case, without hearing na. Either likewise be entitled to judgment in accordance with the
the court will motu propio decide the case or the plaintiff next preceding section. This procedure shall not apply
will file a motion requesting the court to decide the case where one of two or more defendants sued under a
immediately on the basis of the complaint filed by the common cause of action defense shall appear at the
plaintiff. preliminary conference.

So, the basis of the decision of the court shall be the No postponement of the preliminary conference shall be
complaint and other documents attached to the complaint, granted except for highly meritorious grounds and without
or evidences. And the decision of the court shall be limited prejudice to such sanctions as the court in the exercise of
only to what is prayed for in the complaint. sound discretion may impose on the movant. (n)

The court, however, in its discretion may reduce the Monte: Now, if the defendant filed his answer within the
amount of damages and attorney’s fees claimed for being reglementary period of 10 days, the court will set it for
excessive or otherwise unconscionable, without prejudice preliminary conference.
to the applicability of Sec. 3 (c) of Rule 9.

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Preliminary conference under the Rules on Summary Monte: Now, the preliminary conference, just like pre-
Procedure is similar to the rule on pre-trial under Rule 18 trial, is recorded. And the record of the preliminary
for ordinary civil action. conference shall be kept by the court, and within five (5)
days from the termination of the preliminary conference,
“Not later than 30 days after the last answer is filed, the the court shall issue an order stating the matters taken up
court may set a preliminary conference. The provisions of during the preliminary conference, including but not
Rule 18 on pre-trial shall be applicable to the preliminary limited to the following:
conference unless inconsistent with the provisions of this
Rule.” 1. Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;
Effect of Absence during Preliminary Conference
2. The stipulations or admissions entered into by the
Monte: Now, during the preliminary conference, if the parties;
plaintiff fails to appear, the case will be dismissed. If the
defendant is the one who failed to appear during the 3. Whether, on the basis of the pleadings and the
preliminary conference, the plaintiff will be entitled to a stipulations and admission made by the parties,
judgment on his counter-claims in according with the next judgment may be rendered without the need of
preceding section. All cross-claims shall also be further proceedings, in which event the judgment
dismissed. So, it is the defendant who appears in the shall be rendered within thirty (30) days from
absence of the plaintiff shall be entitled to judgment. issuance of the order;

So, simply stated, the effect of failure to appear during 4. A clear specification of material facts which
pre-trial is more or less the same with the effect of failure remain controverted; and
to appear during the preliminary conference:
• If plaintiff fails to appear: dismiss; 5. Such other matters.
• If defendant fails to appear: the plaintiff may
ask the court to render judgment immediately. Sec. 10. Submission of Affidavits and Position
Papers
No Postponement Allowed
Section 10. Submission of affidavits and position
Monte: There is no postponement of the preliminary papers. — Within ten (10) days from receipt of the order
conferences that the court will grant, except for highly mentioned in the next preceding section, the parties shall
meritorious grounds. submit the affidavits of their witnesses and other evidence
on the factual issues defined in the order, together with
Sec. 9. Record of Preliminary Conference their position papers setting forth the law and the facts
relied upon by them. (9, RSP)
Section 9. Record of preliminary conference. — Within
five (5) days after the termination of the preliminary Monte: Okay, after the preliminary conference, the court
conference, the court shall issue an order stating the will require the parties to submit the affidavits of their
matters taken up therein, including but not limited to: witnesses. The affidavit of the witnesses will state what
they are supposed to testify in open court if there will be
1. Whether the parties have arrived at an amicable a hearing. The affidavit must be based on the personal
settlement, and if so, the terms thereof; knowledge (see Sec. 14) of the witness. And thereafter,
the court may require them to submit position papers. Or,
2. The stipulations or admissions entered into by the they may submit position papers together with the
parties; affidavits – they may attach the affidavit to the position
paper of the party.
3. Whether, on the basis of the pleadings and the
stipulations and admission made by the parties, Now, that affidavit submitted will now serve as the
judgment may be rendered without the need of further testimony of the witness himself, in lieu of the actual
proceedings, in which event the judgment shall be testimony in open court. Mao na na ilang testimony,
rendered within thirty (30) days from issuance of the kanang affidavit nga ilang gi-submit.
order;
And then we have the position paper, which contains the
4. A clear specification of material facts which remain arguments of the plaintiff and the defendant why the court
controverted; and should rule in their favor.

5. Such other matters intended to expedite the

disposition of the case. (8, RSP)

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 Sec. 11. Rendition of Judgment 8. Motion to declare the defendant in default;

Section 11. Period for rendition of judgment. — Within 9. Dilatory motions for postponement;
thirty (30) days after receipt of the affidavits and position
papers, or the expiration of the period for filing the same, 10. Reply;
the court shall render judgment.
11. Third-party complaints;
However, should the court find it necessary to clarify
certain material facts, during the said period, issue an 12. Interventions. (19a, RSP)
order specifying the matters to be clarified, and require
the parties to submit affidavits or other evidence on the Monte: The following are the prohibited pleadings under
said matters within ten (10) days from receipt of said the Rules on Summary Procedure:
order. Judgment shall be rendered within fifteen (15) days
after the receipt of the last affidavit or the expiration of the 1. Motion to dismiss the complaint except on the
period for filing the same. ground of lack of jurisdiction over the subject
matter, or failure to comply with Section 12;
The court shall not resort to the foregoing procedure just
to gain time for the rendition of the judgment. (n) 2. Motion for a bill of particulars;

Monte: So, after the submission of their affidavit and 3. Motion for new trial, or for reconsideration of a
position paper, the case shall now be considered judgment, or for reopening of trial;
submitted for decision. And the court is only given thirty
(30) days to decide the case. 4. Petition for relief from judgment;

Sec. 12. Referral for Conciliation 5. Motion for extension of time to file pleadings,
affidavits or any other paper;
Section 12. Referral for conciliation. — Cases requiring
referral for conciliation, where there is no showing of 6. Memoranda;
compliance with such requirement, shall be dismissed
without prejudice, and may be revived only after that 7. Petition for certiorari, mandamus, or prohibition
requirement shall have been complied with. (18a, RSP) against any interlocutory order issued by the
court;
A/N: Not discussed.
8. Motion to declare the defendant in default;
Sec. 13. Prohibited Pleadings − Monte: That is why if the defendant fails to
answer, the court can right away decide the case
even without the plaintiff asking for it. And if the
Section 13. Prohibited pleadings and motions. — The
court will decide the case, he will just base his
following petitions, motions, or pleadings shall not be
decision on what is prayed for by the plaintiff in
allowed:
his complaint. The plaintiff cannot ask the court to
declare the defendant in default.
1. Motion to dismiss the complaint except on the ground
of lack of jurisdiction over the subject matter, or failure
9. Dilatory motions for postponement;
to comply with Section 12;
10. Reply;
2. Motion for a bill of particulars;
11. Third-party complaints;
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
12. Interventions.
4. Petition for relief from judgment;
Nota Bene:
5. Motion for extension of time to file pleadings, − The Rules on Summary Procedure is not applicable
affidavits or any other paper; to ejectment under the agricultural tenancy law;
o Monte: Now, the Rules on Summary
6. Memoranda; Procedures apply to ejectment cases filed in
the MTC. If the ejectment case is filed in the
7. Petition for certiorari, mandamus, or prohibition DARAB (or the Department of Agrarian
against any interlocutory order issued by the court; Reform Adjudication Board), which as the
exclusive jurisdiction to hear ejectment

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 including agricultural tenancy agreements A possessor deprived of his possession through forcible
between the agricultural landlord and the from the filing of the complaint, present a motion in the
agricultural tenant. action for forcible entry or unlawful detainer for the
o So, if the land involved is an agricultural land issuance of a writ of preliminary mandatory injunction to
covered by an agricultural tenancy restore him in his possession. The court shall decide the
agreement – if the landlord would like to eject motion within thirty (30) days from the filing thereof. (3a)
the tenant, he cannot file an ordinary
ejectment case in the MTC. He must have to Motion for Issuance of Preliminary Injunction in
file it in the DARAB. Ejectment Cases
o And the Rules on Summary Procedure will
not apply in the DARAB. It will only apply in Motion for the Issuance of a Preliminary Injunction in
the MTC. This is because the ejectment in the ejectment cases mist be filed within five (5) days from the
DARAB is governed by different rules – the filing of the complaint for ejectment, and the same must
Comprehensive Agrarian Reform Law be resolved by the court within thirty (30) days.
(CARL). That law, the CARL, is the one that
created the DARAB, and it also provides Should there be an appeal by the defendant to the RTC,
there for the procedures in the conduct of the plaintiff may, within ten (10) days from the perfection
ejectment under the DARAB. of the appeal, file a motion for preliminary mandatory
injunction to restore him in possession, which the court
− Municipal courts retain jurisdiction over ejectment may grant if it finds the appeal frivolous or dilatory.
cases even if the question of possession cannot be
resolved without passing upon the issue of Monte: The first paragraph actually refers to an ejectment
ownership. through forcible entry. So, it applies only to forcible entry.
When you file a case for forcible entry, you can ask the
GATCHALIAN VS. CESAR FLORES court to issue a writ of preliminary *mandatory* injunction
G.R. No. 225176, January 19, 2018 to restore you in the possession of the land which was
acquired by the defendant from you through force,
The owners of a parcel of land which had been used as a intimidation, threat, strategy or stealth. So, pwede ka
road lot for years have the right to file an ejectment suit mangayo ug preliminary *mandatory* injunction so that
against the people residing therein by tolerance IF the you will be placed back in possession of the land – back
road lot has not yet been expropriated nor paid for by the to the status quo.
government. Hence, absent expropriation and without
evidence that it was donated or sold to the government, Now, the second paragraph applies more to the other kind
the same is private property. of ejectment, which is unlawful detainer. If you file an
unlawful detainer case, and the court renders judgment in
Sec. 14. Affidavits your favor, but the defendant appealed the case to the
RTC – should there be an appeal by the defendant to the
Section 14. Affidavits. — The affidavits required to be RTC, the plaintiff may, within ten (10) days from the
submitted under this Rule shall state only facts of direct perfection of the appeal, file a motion for preliminary
personal knowledge of the affiants which are admissible mandatory injunction to restore him in possession, which
in evidence, and shall show their competence to testify to the court may grant if it finds the appeal frivolous or
the matters stated therein. dilatory.

A violation of this requirement may subject the party or the But now, under the new Rules, preliminary *prohibitory*
counsel who submits the same to disciplinary action, and injunction will also apply to both cases. It’s not only
shall be cause to expunge the inadmissible affidavit or preliminary mandatory injunction, but also preliminary
portion thereof from the record. (20, RSP) prohibitory injunction.

A/N: Not discussed individually, but embedded in earlier Kinds of Preliminary Injunction
section. There are generally two kinds of preliminary injunction: (1)
a prohibitory injunction which commands a party to refrain
Sec. 15. Preliminary Injunction from doing a particular act; and (2) a mandatory injunction
which commands the performance of some positive act to
correct a wrong in the past. (See Levi Strauss & Co. v.
Section 15. Preliminary injunction. — The court may
Clinton Apparelle, Inc., G.R. No. 138900, September 20,
grant preliminary injunction, in accordance with the
2005, 470 SCRA 236, 252.)
provisions of Rule 58 hereof, to prevent the defendant
from committing further acts of dispossession against the
plaintiff.

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 Sec. 16. Resolving the Defense of Ownership Sec. 19. Immediate Execution of Judgment; How to
Stay the Same
Section 16. Resolving defense of ownership. — When
the defendant raises the defense of ownership in his Section 19. Immediate execution of judgment; how to
pleadings and the question of possession cannot be stay same. — If judgment is rendered against the
resolved without deciding the issue of ownership, the defendant, execution shall issue immediately upon
issue of ownership shall be resolved only to determine the motion unless an appeal has been perfected and the
issue of possession. (4a) defendant to stay execution files a sufficient supersedeas
bond, approved by the Municipal Trial Court and executed
Judgment in ejectment is conclusive only on possession; in favor of the plaintiff to pay the rents, damages, and
it is not conclusive in actions involving title or ownership. costs accruing down to the time of the judgment appealed
(A/N: See also Sec. 18.) from, and unless, during the pendency of the appeal, he
deposits with the appellate court the amount of rent due
Monte: But as we already know, now, the MTC can from time to time under the contract, if any, as determined
already pass upon the issue of ownership in ejectment by the judgment of the Municipal Trial Court. In the
cases if the determination of the issue of ownership is absence of a contract, he shall deposit with the Regional
necessary to the determination of possession. But, the Trial Court the reasonable value of the use and
resolution of the court regarding ownership is not binding occupation of the premises for the preceding month or
yet on the true ownership. I mean, it’s just preliminary. It period at the rate determined by the judgment of the lower
is only for the purpose of determining possession court on or before the tenth day of each succeeding
because the issue in ejectment is only possession. month or period. The supersedeas bond shall be
transmitted by the Municipal Trial Court, with the papers,
Sec. 17. Judgment to the clerk of the Regional Trial Court to which the action
is appealed.
Section 17. Judgment. — If after trial court finds that the
allegations of the complaint are true, it shall render All amounts so paid to the appellate court shall be
judgment in favor of the plaintiff for the restitution of the deposited with said court or authorized government
premises, the sum justly due as arrears of rent or as depositary bank, and shall be held there until the final
reasonable compensation for the use and occupation of disposition of the appeal, unless the court, by agreement
the premises, attorney's fees and costs. If a counterclaim of the interested parties, or in the absence of reasonable
is established, the court shall render judgment for the sum grounds of opposition to a motion to withdraw, or for
found in arrears from either party and award costs as justifiable reasons, shall decree otherwise. Should the
justice requires. (6a) defendant fail to make the payments above prescribed
from time to time during the pendency of the appeal, the
A/N: Not discussed individually. appellate court, upon motion of the plaintiff, and upon
proof of such failure, shall order the execution of the
Sec. 18. Judgment Conclusive Only on Possession, judgment appealed from with respect to the restoration of
Not Ownership possession, but such execution shall not be a bar to the
appeal taking its course until the final disposition thereof
on the merits.
Section 18. Judgment conclusive only on
possession; not conclusive in actions involving title
After the case is decided by the Regional Trial Court, any
or ownership. — The judgment rendered in an action for
money paid to the court by the defendant for purposes of
forcible entry or detainer shall be conclusive with respect
the stay of execution shall be disposed of in accordance
to the possession only and shall in no wise bind the title
with the provisions of the judgment of the Regional Trial
or affect the ownership of the land or building. Such
Court. In any case wherein it appears that the defendant
judgment shall not bar an action between the same
has been deprived of the lawful possession of land or
parties respecting title to the land or building.
building pending the appeal by virtue of the execution of
the judgment of the Municipal Trial Court, damages for
The judgment or final order shall be appealable to the
such deprivation of possession and restoration of
appropriate Regional Trial Court which shall decide the
possession and restoration of possession may be allowed
same on the basis of the entire record of the proceedings
the defendant in the judgment of the Regional Trial Court
had in the court of origin and such memoranda and/or
disposing of the appeal. (8a)
briefs as may be submitted by the parties or required by
the Regional Trial Court. (7a)
Judgment in Ejectment Cases

Judgment in ejectment is immediately executory. To

stay execution, defendant has to file a supersedeas
bond approved by the MTC to pay the rent, damages and

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costs accruing down to the time of the judgment appealed Sec. 21. Immediate Execution on Appeal to the CA or
from. SC

He must also deposit with the appellate court the amount Section 21. Immediate execution on appeal to Court
of rent due from time to time as stated in the contract, or of Appeals or Supreme Court. — The judgment of the
the reasonable value for the use of the property. Regional Trial Court against the defendant shall be
immediately executory, without prejudice to a further
Monte: So, in ejectment cases, once the MTC rules in appeal that may be taken therefrom. (10a)
favor of the plaintiff, and the defendant appeals the
decision to the RTC, the decision of the MTC is Monte: If the decision of the RTC is further appealed to
immediately executory. So, he can already dispossess the CA, as what we have already known, it is immediately
the defendant. executory also; the appeal to the CA by way of a petition
for review under Rule 42 will not stay the judgment unless
So, in order for the defendant to prevent his there is a TRO issued by the court. Okay, I think that’s all
dispossession, he must put up a supersedeas bond. And for ejectment.
his supersedeas bond must be approved by the MTC, and
will pay for the rent, damages, and costs accruing down RULE 71
to the time of the judgment appealed from. So, kung CONTEMPT
unsay decision sa MTC, imo nang bayran daan. You have
to deposit that in court by way of a supersedeas bond. This is the last rule on special civil actions. Contempt of
Court is a remedy provided for by the rules to vindicate
In addition to that, while the case is already pending in the the court in the event that there are transgressions or
RTC, you must continually deposit with the RTC the rental offenses committed by a party or a person against the
amount due from time to time, as stated in the contract, if court.
there’s a contract of lease – in other words, the ejectment
case filed was an unlawful detainer. TWO KINDS OF CONTEMPT

Now, what about if the case filed is forcible entry? There 1. Direct Contempt – a misbehavior is committed by
is no contract there. So, how will we know how much will a person in the presence of the judge. This can be
the defendant pay as monthly rental? Well, that is a matter summarily penalized by the judge.
to be ruled by the MTC. So, when the MTC decides the
ejectment case in favor of the plaintiff – siyempre, against 2. Indirect Contempt – the act is committed outside
the defendant, who forcibly entered the property – the the court but is still considered as an insult or an
decision of the MTC will already contain an amount of the offense against the dignity of the court.
monthly rental that the defendant is supposed to pay. And
that will be the basis also for the supersedeas bond and AS TO PURPOSE
the periodic deposit of monthly rentals.
1. Criminal in nature – to vindicate public authority.
Summary:
To stay the immediate execution of MTC decision: 2. Civil in nature – to protect the rights of litigants.
1. Put up a supersedeas bond; and
2. Pay periodic rentals: DIRECT CONTEMPT
a. If forcible entry: as set by the MTC;
b. If unlawful detainer: as stated in the SECTION 1. Direct Contempt Punished
contract of lease Summarily.— A person guilty of misbehavior in the
presence of or so near a court as to obstruct or
Sec. 20. Preliminary Mandatory Injunction in Case of interrupt the proceedings before the same, including
Appeal disrespect toward the court, offensive personalities
toward others, or refusal to be sworn or to answer as
Section 20. Preliminary mandatory injunction in case a witness, or to subscribe an affidavit or deposition
of appeal. — Upon motion of the plaintiff, within ten (10) when lawfully required to do so, may be summarily
days from the perfection of the appeal to the Regional adjudged in contempt by such court and punished by
Trial Court, the latter may issue a writ of preliminary a fine not exceeding two thousand pesos or
mandatory injunction to restore the plaintiff in possession imprisonment not exceeding ten (10) days, or both, if
if the court is satisfied that the defendant's appeal is it be a Regional Trial Court or a court of equivalent or
frivolous or dilatory or that the appeal of the plaintiff is higher rank, or by a fine not exceeding two hundred
prima facie meritorious. (9a) pesos or imprisonment not exceeding one (1) day, or
both, if it be a lower court. (1a)
A/N: Not discussed.

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HOW COMMITTED Execution will be suspended during the pendency of the
petition for certiorari provided he will file a bond.
a. Misbehavior in the presence of or so near a
court as to interrupt the proceedings before the Direct contempt can be imposed by the court summarily
same; or without hearing.

b. Disrespect towards the court; What happens if you accuse the judge of corruption
For letter a and b, an example is when you shouted in open court? The judge can, right then and there, cite
at the top of your voice inside the courtroom that the you for contempt, and order any police officer around to
judge is corrupt, biased, and that s/he was bought arrest you. But you can put up a bond so you will not
by the other party. Even if you did it outside the stay in jail.
courtroom but you did it within the hearing distance
of the judge, that constitutes direct contempt. Right INDIRECT CONTEMPT
there and then the judge can penalize you. If you
show disrespect to the court or you show offensive SECTION 3. Indirect Contempt to be
personalities towards others, the judge can bang Punished After Charge and Hearing.— After
the gavel and right there and then cite you for direct charge in writing has been filed, and an opportunity
contempt of court. given to the respondent to comment thereon within
such period as may be fixed by the court and to be
c. Offensive personalities towards others; heard by himself or counsel, a person guilty of any
of the following acts may be punished for indirect
d. Refusal to be sworn or to answer as witness, or contempt:
to subscribe an affidavit or deposition when
lawfully required to do so. (a) Misbehavior of an officer of a court in the
If you are presented as a witness but you refused performance of his official duties or in his
to take your oath as a witness or refused to official transactions;
subscribe an affidavit or deposition, the court may
cite you for direct contempt and immediately (b) Disobedience of or resistance to a lawful writ,
impose the corresponding penalty. process, order, or judgment of a court,
including the act of a person who, after being
PENALTY dispossessed or ejected from any real
property by the judgment or process of any
1. RTC – Fine not exceeding P2,000 OR court of competent jurisdiction, enters or
imprisonment not exceeding 10 days OR both; attempts or induces another to enter into or
upon such real property, for the purpose of
2. MTC – Fine not exceeding P200 or imprisonment executing acts of ownership or possession, or
not exceeding one (1) day, or both. in any manner disturbs the possession given
to the person adjudged to be entitled thereto;
The penalty is very negligible. If grabe2x gyud ang
kalagot sa huwes nimo, pwede ang duha—fine plus (c) Any abuse of or any unlawful interference with
imprisonment. the processes or proceedings of a court not
constituting direct contempt under Section 1
REMEDY of this Rule;

SECTION 2. Remedy Therefrom.— The (d) Any improper conduct tending, directly or
person adjudged in direct contempt by any court may indirectly, to impede, obstruct, or degrade the
not appeal therefrom, but may avail himself of the administration of justice;
remedies of certiorari or prohibition. The execution of
the judgment shall be suspended pending resolution (e) Assuming to be an attorney or an officer of a
of such petition, provided such person files a bond court, and acting as such without authority;
fixed by the court which rendered the judgment and
conditioned that he will abide by and perform the (f) Failure to obey a subpoena duly served;
judgment should the petition be decided against him.
(2a) (g) The rescue, or attempted rescue, of a person
or property in the custody of an officer by
REMEDY: A petition for certiorari or prohibition. virtue of an order or process of a court held by
Appeal is not a remedy. him.

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 But nothing in this section shall be so G. The rescue, or attempted rescue, of a person
construed as to prevent the court from issuing or property in the custody of an officer by
process to bring the respondent into court, or virtue of an order or process of a court held
from holding him in custody pending such by him.
proceedings. (3a) Someone was arrested but you rescued the
arrested person so that they can escape. Or
HOW COMMITTED some properties were already taken by the sheriff
in the implementation of the writ of execution,
A. Misbehavior of an officer of a court in the then you remove it from the possession of the
performance of his official duties; sheriff. These would constitute as indirect
Like the sheriff is found to have committed contempt.
behavior when instead of serving the summons
to the defendant, he kept it because he was given HOW INDIRECT CONTEMPT IS COMMENCED
P50K by the plaintiff to make it appear that the
defendant has already received the summons. SECTION 4. How Proceedings
He made a report to the court that he had already Commenced.— Proceedings for indirect contempt
served the summons when in truth and in fact he may be initiated motu proprio by the court against
did not. That is a misbehavior that would which the contempt was committed by an order or any
constitute indirect contempt. other formal charge requiring the respondent to show
cause why he should not be punished for contempt.
B. Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court; In all other cases, charges for indirect
If the court issues a writ of preliminary injunction contempt shall be commenced by a verified petition
against you but you disobey it, the court can cite with supporting particulars and certified true copies of
you for indirect contempt. documents or papers involved therein, and upon full
compliance with the requirements for filing initiatory
C. Any abuse of or any unlawful interference pleadings for civil actions in the court concerned. If
with the processes or proceedings of a court the contempt charges arose out of or are related to a
not constituting direct contempt; principal action pending in the court, the petition for
The one charged with indirect contempt is not a contempt shall allege that fact but said petition shall
party to the case but he intervened with the be docketed, heard and decided separately, unless
processes of the court. Like, a writ of execution the court in its discretion orders the consolidation of
was served and you prevented the sheriff from the contempt charge and the principal action for joint
implementing it. A warrant of arrest is served on hearing and decision. (n)
the accused but you prevented the police from
arresting the accused. Those would constitute It is commenced by filing a verified petition OR by
indirect contempt. the court motu propio. The proceeding is criminal
in nature, so no formal answer is required.
D. Any improper conduct tending, directly or Before, under the old rules, indirect contempt can be
indirectly, to impede, obstruct, or degrade the filed by a mere motion if the act constituting contempt is
administration of justice; related to a pending case. When you file a motion, you
The same example I gave a while ago. do not have to pay a filing fee so that is why it was
practiced by many lawyers before. The Supreme Court
E. Assuming to be an attorney or an officer of a said wait a minute, contempt is a special civil action! It
court, and acting as such without authority; cannot be initiated by a mere motion. It should be
Mag pretend ka nga abogado but you did not treated as an independent action so you have to file a
finish JD. What you have is MA—Murag petition to cite that person in indirect contempt and you
Abogado. Okayhehe. Not masters. There was a have to pay docket fee.
case before where someone pretended to be a
lawyer and he was being questioned by the court. In Direct Contempt, when initiated by a party or a
So, if it will be proven that he is really not a lawyer third person, it must be done or commenced by a
then he can be cited for indirect contempt. verified petition. But in Indirect Contempt, it can
also be initiated by the Court whose dignity was
F. Failure to obey a subpoena duly served; offended by the act of respondent.
If you are subpoenaed by the court to testify and It can be initiated by the court motu propio and the court
you did not obey, that would constitute indirect does not have to file a formal complaint. The offended
contempt. judge can simply issue an order requiring you to answer
why you should not be cited for indirect contempt. You
will be given a certain time to explain.

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Unlike in ordinary civil actions where you are given 15 consists in the violation of a writ of injunction,
days to file a written answer. In Indirect Contempt, your temporary restraining order or status quo order, he
answer need not be formal. There is no prescribed form. may also be ordered to make complete restitution to
the party injured by such violation of the property
The court must fix the date of hearing. involved or such amount as may be alleged and
Indirect contempt, being a special civil action, cannot be proved.
adjudged without a hearing. The writ of execution, as in
ordinary civil actions, shall issue for the enforcement
WHERE TO FILE of a judgment imposing a fine unless the court
otherwise provides. (6a)
SECTION 5. Where Charge to be Filed.— SECTION 8. Imprisonment Until Order
Where the charge for indirect contempt has been Obeyed. — When the contempt consists in the
committed against a Regional Trial Court or a court of refusal or omission to do an act which is yet in the
equivalent or higher rank, or against an officer power of the respondent to perform, he may be
appointed by it, the charge may be filed with such imprisoned by order of the court concerned until he
court. Where such contempt has been committed performs it. (7a)
against a lower court, the charge may be filed with the
Regional Trial Court of the place in which the lower PENALTY
court is sitting; but the proceedings may also be 1. RTC – Fine not more than P30,000 or
instituted in such lower court subject to appeal to the imprisonment not exceeding six months or
Regional Trial Court of such place in the same both.
manner as provided in Section 2 of this Rule. (4a) 2. MTC – Fine not more than P5,000 or
imprisonment not exceeding one month or
If indirect contempt is initiated by a party or a third both.
person, where will he file it?
In the same court where the contumacious act was Imprisonment until order is obeyed.
committed. But if the contumacious act was committed If the respondent is ordered by the court to do a
against a judge in a municipal court, you can file the particular act such as there is a mandatory preliminary
verified petition for indirect contempt with that municipal injunction to do that particular act and he stubbornly
court or you can file it with the RTC that has jurisdiction refused to do that act, the court can order him arrested
over the area where that municipal court sits. and be imprisoned until he obeys the order.

HEARING; RELEASE ON BAIL PROCEEDING WHEN PARTY RELEASED ON BAIL

FAILS TO ANSWER
SECTION 6. Hearing; Release on Bail.— If
the hearing is not ordered to be had forthwith, the SECTION 9. Proceeding When Party
respondent may be released from custody upon filing Released on Bail Fails to Answer.— When a
a bond, in an amount fixed by the court, for his respondent released on bail fails to appear upon the
appearance at the hearing of the charge. On the day day fixed for the hearing, the court may issue another
set therefor, the court shall proceed to investigate the order of arrest or may order the bond for his
charge and consider such comment, testimony or appearance to be forfeited and confiscated, or both;
defense as the respondent may make or offer. (5a) and, if the bond be proceeded against, the measure
of damages shall be the extent of the loss or injury
There will be a hearing and the court may in the sustained by the aggrieved party by reason of the
meantime release the respondent on bail. misconduct for which the contempt charge was
prosecuted, with the costs of the proceedings, and
PENALTY such recovery shall be for the benefit of the party
injured. But if there is no aggrieved party, the bond
SECTION 7. Punishment for Indirect shall be liable and disposed of as in criminal cases.
Contempt.— If the respondent is adjudged guilty of (8a)
indirect contempt committed against a Regional Trial
Court or a court of equivalent or higher rank, he may If a person that is released on bail fails to attend the
be punished by a fine not exceeding thirty thousand hearing for the indirect contempt, the court can order
pesos or imprisonment not exceeding six (6) months, him again arrested and can even confiscate the bond
or both. If he is adjudged guilty of contempt committed that he set up.
against a lower court, he may be punished by a fine
not exceeding five thousand pesos or imprisonment
not exceeding one (1) month, or both. If the contempt

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 COURT MAY RELEASE RESPONDENT and you are being subpoenaed to appear but you did not
appear. This contempt power of congress cannot be
SECTION 10. Court May Release delegated to the local governments. Local legislature has
Respondent.— The court which issued the order no contempt power.
imprisoning a person for contempt may discharge him
from imprisonment when it appears that public FIN.
interest will not be prejudiced by his release. (9a) ---------------------------------------------------------------------------
The court my release respondent if public interest will
not be prejudiced.

JUDGMENT IN INDIRECT CONTEMPT IS

APPEALABLE

SECTION 11. Review of Judgment or Final

Order; Bond for Stay.— The judgment or final order
of a court in a case of indirect contempt may be
appealed to the proper court as in criminal cases. But
execution of the judgment or final order shall not be
suspended until a bond is filed by the person Dean’s Parting Message:
adjudged in contempt, in an amount fixed by the court “Thank you for being with me for the past three weeks. I
from which the appeal is taken, conditioned that if the hope you I enlightened you on many aspects of the rules
appeal be decided against him he will abide by and on civil procedure. Thank you and see you once again.
perform the judgment or final order. (10a) Thank you.”

Judgment in indirect contempt is appealable as in

criminal cases. But, appeal does not stay the execution
unless respondent files a bond.

CONTEMPT AGAINST QUASI-JUDICIAL BODIES

SECTION 12. Contempt Against Quasi-

Judicial Entities.— Unless otherwise provided by
law, this Rule shall apply to contempt committed
against persons, entities, bodies or agencies
exercising quasi-judicial functions, or shall have
suppletory effect to such rules as they may have
adopted pursuant to authority granted to them by law
to punish for contempt. The Regional Trial Court of
Prepared by:
the place wherein the contempt has been committed
shall have jurisdiction over such charges as may be
filed therefor. (n)

Normally, quasi-judicial bodies cannot cite a person in

contempt of court. So if a party in the case they decided
disobeys the court, the court can file an indirect contempt
case before the RTC.
GAVIOLA | SEVILLA | TORRES
But if that quasi-judicial power is vested with contempt
SY 2020-2021
powers by the law that created it, they can exercise
CIVIL PROCEDURE | REM REVIEW
contempt power.

Contempt power is basically a judicial power. That is why

it can only be exercised by the courts. Quasi-judicial
bodies cannot, not unless they are expressly authorized.

Legislative Bodies
Congress has contempt power. Congress can cite you in
contempt if they are conducting a congressional inquiry

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