CIVIL PROCEDURE Reviewer

REMEDIAL LAW
CIVIL PROCEDURE
SEC. 3: CASES GOVERNED: govern the procedure to be
RULE 1 observed in actions, civil or criminal and special
proceedings.
General Provisions
1) CIVIL ACTION: suit for the enforcement or
Section 1. Title of the Rules. — These Rule shall be protection of a right (di pa nangyari), or the
known and cited as the Rules of Court. (1) prevention or redress of a wrong (there is already a
delict or wrong or it was already done to you).
Section 2. In what courts applicable. — These Rules shall a) ORDINARY:
apply in all the courts, except as otherwise provided by the b) SPECIAL:
Supreme Court. (n)
Section 3. Cases governed. — These Rules shall govern ORDINARY CIVIL ACTION SPECIAL CIVIL ACTIONS
the procedure to be observed in actions, civil or criminal
and special proceedings. Both are governed by the rules for ordinary civil actions,
subject to specific rules prescribed for a special civil
(a) A civil action is one by which a party sues another action.
for the enforcement or protection of a right, or the Rule 62:
prevention or redress of a wrong, (1a, R2)
a) Interpleader
A civil action may either be ordinary or special. Both are b) Declaratory relief and
governed by the rules for ordinary civil actions, subject to similar remedies
the specific rules prescribed for a special civil action. (n) c) Review of judgments
and final orders or
(b) A criminal action is one by which the State resolutions of the
prosecutes a person for an act or omission COMELEC and COA
punishable by law. (n) d) Certiorari, prohibition,
(c) A special proceeding is a remedy by which a party and mandamus
seeks to establish a status, a right, or a particular e) Quo warrant
fact. (2a, R2) f) Expropriation
g) Foreclosure of real
Section 4. In what case not applicable. — These Rules estate mortgage
shall not apply to election cases, land registration, h) Partition
cadastral, naturalization and insolvency proceedings, and i) Forcible entry and
other cases not herein provided for, except by analogy or unlawful detainer
in a suppletory character and whenever practicable and j) Contempt
convenient. (R143a)
2) CRIMINAL ACTION: one by which the State
Section 5. Commencement of action. — A civil action is prosecutes a person for an act or omission
commenced by the filing of the original complaint in court. punishable by law.
If an additional defendant is impleaded in a later pleading, 3) SPECIAL PROCEEDINGS: a remedy by which a
the action is commenced with regard to him on the dated party seeks to establish a status, a right, or a
of the filing of such later pleading, irrespective of whether particular fact.
the motion for its admission, if necessary, is denied by the
court. (6a)
ACTION SPECIAL PROCEEDING
Section 6. Construction. — These Rules shall be liberally
construed in order to promote their objective of securing a Requires the filing of a Relief may be obtained by a
just, speedy and inexpensive disposition of every action formal pleading mere application or petition
and proceeding. (2a) Always two definite and There is a definite
particular adverse party: petitioner, but there is no
PLAINTIFF (demands the definite party as it is usually
SEC. 1: 1997 Code of Civil Procedure. right); defendant (to whom against the whole world
the right is sought)
 When the Court makes a comparison with the old Petition for land
one and this one. registration:
 Effective: July 1, 1997.
ACTION: a civil action is one by which a person sues
SEC. 2: apply in all courts, except as otherwise provided another.
by the SC.
 An ordinary action is a suit in court.
 Is CTA governed by the ROC? YES, as it is not a  ACTION v. SUIT → can be used interchangeably.
quasi-judicial body, but a full-fledged court.  Suit: pursuit for a claim or demand.
CLASSIFICATION OF ACTIONS:
ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 1 of 270

REMEDIAL LAW
CIVIL PROCEDURE
1) As to their NATURE: ORDINARY or SPECIAL. property, to (application and disposition of the
2) As to their CAUSE/FOUNDATION: REAL ACTION recover a sum of petition) – to property of the
or PERSONAL ACTION, some authors include money. establish the fact defendant,
MIXED. that you are the whether
owner of fee voluntarily
simple, or a right (mortgage) or
REAL ACTION PERSONAL MIXED of being a naked involuntarily (by
ACTION ACTION owner in a attachment issue
property. by the court).
One that is On that is founded on Mixed of real
founded on privity of contracts or and personal:
privity of real quasi-delict, such as pertain to CHING V. COURT OF APPEALS: an action for
estate for the action to recover sum some degree reconveyance after the land was sold to Ching, who died
purpose of of money, or to real and in the US.
affecting title to recover damages, or personal.
or possession of for the enforcement EXAMPLE: o Because the plaintiff was not sure whether Ching is
real property or of a contract, or for a recovery of still alive, he amended his complaint by adding his
any interest recovery of a land, and estate, as they cannot serve summons personally.
therein. personal property. damages.  Served summons by publication, which was
No. 2 No. 8 allowed by the court.
 Ching was declared in default after 60 days.
3) As to PLACE OF FILING: LOCAL or TRANSITORY o RTC: rendered judgment on default.
o This action was filed 13 years from the death of
Ching.
LOCAL TRANSITORY o When the judgment became final and executory, the
son of Ching filed a verified petition to set it aside
One which must be brought Follows the party wherever for lack of jurisdiction.
with a particular place, like he may reside. o RULE: in actions in personam, the court must
a real action. acquire jurisdiction over the person.
 Publication was only allowed for in rem
and quasi-in rem.
4) As to OBJECT: IN PERSONAM and IN REM, o SC: did not acquire jurisdiction over the person, as
QUASI-IN REM the person already died, and he ceased to be.
o Distinction between in personam and in rem.
o IMPORTANT: even if it involves a real property, it
IN PERSONAM IN REM QUASI IN REM does not necessarily mean that it is already an
action in rem, or quasi in rem.
The object there The object is to Directed to the o REASON: it still remains in personam as it seeks a
of the suit is to BAR indifferently thing, still, like in claim against a particular individual, as it seeks a
establish a ALL who might rem, as the judgment that is binding only upon the party
claim against a be reminded to judgment is on impleaded in the case.
particular make an the thing. Quasi
person and that objection of any (almost) in rem.
you are seeking a sort against a The judgment IN PERSONAM IN REM
judgment for him right, fact or a remains
to be held liable. status sought to conclusive only Directed against a specific Directed against the thing
be established. against the person. as against the real world.
parties, not Action to recover a parcel
against the whole of land, even if it is a real
world. action.
Binds his body; If anyone in the In here, an
only certain whole has the individual is o The fact that another petition in rem is pending: the
persons are right to be heard named as petition for the settlement of the estate with the
1
entitled to be on the strength of defendant . The Pasay City Court, and that is PUBLIC.
heard. alleging facts to purpose of the  The plaintiff should have made the
Seeks personal be true shows an proceeding is to administrator of the estate the defendant,
claim against a inconsistent subject his and to whom service of summons should be
particular interest to that property to an made.
individual. petitioner. obligation or lien  There is constructive knowledge of an in rem
burdening it. proceeding.
An action to Land registration Sole object: the
2
recover a case sale or
1
Unlike in in rem. But both of them, the object is against the thing. registration is handed by the court, after the person of one day, his title
2
Not to confer ownership, but to CONFIRM ownership. Object of the to the property becomes indefeasible, unassailable, and
suit is to bar indifferently all individuals. Otherwise, when the decree of imprescriptible.

REMEDIAL LAW
CIVIL PROCEDURE
prescription of actions, when the time is interrupted:
PADERANGA V. BUISAN: the leased property was upon filing in court or written demand.
located in Ozamis City.  The 10-year period has not yet elapsed when
the complaint was filed in court.
o The lessee (plaintiff) filed for an action for damages o The fact the summons was served at the end of the
and to fix the period of the lease in CFI of 10-year period is of no consequence as a civil
Zamboanga del Norte, based in Dipolog City (which complaint is deemed filed upon the filing of the
is the residence of the plaintiff). complaint docketing of the complaint.
o A Motion to Dismiss was filed, as petitioner
contends that the suit must be filed in Ozamis,
which is the location of the property → real action. FILING OF THE COMPLAINT: it is not enough that you
 That venue was improperly laid. file the original complaint in court.
o QUESTION: is this a real action, or a personal
action?  ―FILING‖ → not just the mechanical presentation of
o SC: in personam → where the plaintiff resides. the pleading in court.
 Only affects the parties alone, not the whole  There must also be proper payment of the
world. required docket fees.
o Fixing of the period of lease will result to
repossession of the property → does not follow that
it is already a personal action. AYALA V. MADAYAG: is there failure to pay prescribed
o SC: while it may be that the complaint does not docket fee and failure to specify in the body and the prayer
explicitly pray for the recovery of possession of the the amount of exemplary damages they sought.
real property, such is the necessary consequence in
this case as the instant action hereto is to recover ½ o Plaintiff only paid P1,616.
portion that was earlier repossessed by the lessor. o Argument of Sabio: it is not necessary → if the
o ULTIMATE PURPOSE: seeks recovery of judgment subsequently awards a claim not specified
possession, such an action be a real action, and in the pleadings, and the same is left for the
such shall be filed where it lies. determination of the court, then the filing fee shall
 Effect of the judgment is to recover the ½ merely constitute a lien on the judgment, to be
portion he has earlier repossessed. enforced by the Clerk of Court.
o ACTION IN PERSONAM, but REAL ACTION.  As per Sun Insurance v. Asuncion.
o SC: RTC must dismiss the case for improper venue. o Sustained by the SC? NO.
o Tacay v. RTC of Tagum: refers only to ―damages
NOTE: While it may be that the instant complaint does not arising AFTER the filing of the complaint or similar
explicitly pray for recovery of possession, such is the pleading.‖
necessary consequence thereof. The instant action o SC: limited only to the damages that may arise
therefore does not operate to efface the fundamental and AFTER the fling of the complaint → they are
prime objective of the nature of the case which is to damages arising pendente lite, that accrues after
recover the one-half portion repossessed by the lessor, the filing of the complaint.
herein petitioner. Indeed, where the ultimate purpose of an  As it will be impossible for the claimant to
action involves title to or seeks recovery of possession, specify the amount thereof.
partition or condemnation of, or foreclosure of mortgage o Refers only to those damages that will arise
on, real property, such an action must be deemed a real pendente lite (during the pendency of the litigation).
action and must perforce be commenced and tried in the o RULE: in Manchester Development: where the
province where the property or any part thereof lies. appropriate docket fee is not paid, then the court
shall not acquire jurisdiction over the action.
AUGUST 1, 2016
SEC. 5: COMMENCEMENT OF ACTION: commenced by SUN INSURANCE V. ASUNCION: if there is non-payment

the filing of the original complaint in court. of docket fees, the court does not acquire jurisdiction over
the complaint.
CABRERA V. TEJANO: the sale was executed on July 2, o RULES:

1947. 1. It is not simply the filing of the complaint or
appropriate initiatory pleading, but the
o An action for Partition & Recovery of Real Estate payment of the prescribed docket fee, that
with Damages was filed on June 20, 1957. vests a trial court with jurisdiction over the
o Defendant claimed that the action was already subject matter or nature of the action. Where
prescribed, as it was brought ten years from the the filing of the initiatory pleading is not
purchase (he received the summons on July 2, accompanied by payment of the docket fee,
1957). the court may allow payment of the fee within
o SC: the action was deemed commenced at the time a reasonable time but in no case beyond the
of the filing of the original complaint, not at the time
of the service of summons.
o Under ART. 1155 of the CC, which provides for

REMEDIAL LAW
CIVIL PROCEDURE
applicable prescriptive or reglementary o If the damages are not specified, then only that
3
period . action can be dismissed.
2. The same rule applies to permissive o The court has jurisdiction for the action for the real
4
counterclaims , third-party claims and property and not divested of that authority when it
similar pleadings, which shall not be did not acquire jurisdiction over the case for
considered filed until and unless the filing fee damages.
prescribed therefor is paid. The court may o What should have been done is to expunge the
also allow payment of said fee within a claim for damages which amount are not specified
reasonable time but also in no case beyond as basis for the amount of payment of docket fees
its applicable prescriptive or reglementary or to order additional claims.
period.
3. Where the trial court acquires jurisdiction
over a claim by the filing of the appropriate Filing fees for criminal cases?
pleading and payment of the prescribed filing
fee but, subsequently, the judgment awards
a claim not specified in the pleading, or if MAERSK-TABACALERA SHIPPING V. COURT OF
specified the same has been left for APPEALS: damages were awarded which are not
determination by the court, the additional specified in the complaint.
filing fee therefor shall constitute a lien on the
judgment. It shall be the responsibility of the o Contract of carriage → unloaded the goods without
Clerk of Court or his duly authorized deputy notice.
to enforce said lien and assess and collect o TC: Judgment was rendered for plaintiff for breach
the additional fee. of contract.
o If not reasonably paid → reasonable time, as long o CA: affirmed.
as the prescriptive period has not yet lapsed. o On appeal, the losing party questioned the
jurisdiction of the TC.
o SC: If you do not raise the lack of payment of
docket fee in the TC, you cannot anymore raise that
HODGES V. COURT OF APPEALS: three attorneys filed for the first time on appeal → defect is deemed
a complaint for damages for defamatory statements. waived.
o When the judgment awarding a claim not specified /
o Special appearance by the defendant: only P32 was left to the determination of the court → just
paid as docket fees. constitute a lien on the judgment.
o SC: judgment must be set aside.  The filing fee shall constitute a lien on the
o Lazaro v. Endencia: an appeal is not deemed judgment (maunang bayaran).
perfected if the appellate court docket fee is not fully o The counsel was reprimanded for not specifying the
paid. damages in the body and the prayer of the
o Magaspi v. Ramoleta: a case is deemed filed only complaint to defraud the Government of the proper
upon payment of the docket fee regardless of the fee for docketing said complaint.
actual date of its filing in court.
SEC. 33, BP 129: requirement of stating the amount of ORIGINAL DEVELOPMENT V. COURT OF APPEALS: a
damages. claim for breach of contract, but the amount of damages
were unspecified.
 EXCLUSIVE: when pertaining to jurisdiction.
 BUT its specific amount must be alleged as it shall o MTD: non-payment of docket fees.
be included in the determination of filing fees. o It paid, but not the whole.
 Based on P2M → representing the amounts
due to the plaintiff for take out proceeds.
SALIENTES V. COURT OF APPEALS: mixed action.  Prayed for damages, without specifying their
amounts, which will be proved in the trial.
o The petitioner filed a complaint seeking to recover o Required to amend → equivalent to 25% of the total
possession of a portion of a real property (P500k) monetary liability and other expenses of litigation.
AND damages (not less than P500k). o SC: it is evident that the complaint did not state
o RTC: Dismissed the complaint for failure to pay enough facts and sums to enable the COC of the
docket fees. lower court to compute the docket and other fees.
o CA: not a fixed amount, and dismissed the petition. o The plaintiff must ascertain in his own the fees.
o SC: NOT correct, and the RTC can only dismiss the o SC: left to the judge mere guesswork as to the
case for the action for damages, not for the amount, which is FATAL.
recovery of the real property as they paid the docket
fees for the real action.
 The docket fee for the real action was paid.
INTERNATIONAL INDUSTRIAL MANAGEMENT V.
3
Provided it has not yet lapsed.
COURT OF APPEALS: the filing fees for the additional
4
Only permissive, and not compulsory. claims of damages must be specified and paid.

REMEDIAL LAW
CIVIL PROCEDURE
principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction. (5a)
CRIMINAL CASES: is there a filing fee? DEPENDS,
whether the civil action arising from the offense charged is Section 6. Misjoinder of causes of action. — Misjoinder of
deemed instituted with the criminal case. causes of action is not a ground for dismissal of an action.
A misjoined cause of action may, on motion of a party or
 If it is, there is payment. on the initiative of the court, be severed and proceeded
 If none, there is no payment. with separately. (n)
SEC. 4: shall not apply to election cases, land registration

and cadastral proceedings, naturalization and CAUSE OF ACTION: what is required of every ordinary
naturalization cases, and other cases herein provided for, civil action?
etc.
 SEC. 1: every ordinary civil action must be based
SEC. 6: objective → to secure a just, speedy, ad on a cause of action.
inexpensive disposition of every action and proceeding.  SEC. 2: the act or omission by which a party
violates a right of another.
 If there is a call for interpretation, and there is no  Should every action be based on a cause of
specific rule on that point, you can you this. action? Only on ORDINARY civil actions.
 Liberal → to promote the purpose.  NOT included: special civil actions, where
there is no act or omission yet (essence of
RULE 2: declaratory relief).
 A.K.A delict or wrong committed by the
defendant in violation of the plaintiff’s right.
Civil Actions  BASIS: the rule is judicial power can only be
exercised if there is only a controversy
Ordinary Civil Actions (actual case or justiciable controversy).
 When it involves right which are
RULE 2 enforceable and demandable.
 If there is a violation, a controversy is
Cause of Action created.
 If there is an impending violation, it
Section 1. Ordinary civil actions, basis of. — Every will still involve a right (he still has the
ordinary civil action must be based on a cause of action. locus standi).
(n)  What are the ESSENTIAL REQUISITES OF
A CAUSE OF ACTION:
Section 2. Cause of action, defined. — A cause of action 1) Right vested on the plaintiff
is the act or omission by which a party violates a right of 2) A corresponding duty on the part of
another. (n) the defendant to respect plaintiff’s
right
Section 3. One suit for a single cause of action. — A party 3) The act or omission of the defendant,
may not institute more than one suit for a single cause of by which the primary right and duty
action. (3a) have been violated
Section 4. Splitting a single cause of action; effect of. — If

two or more suits are instituted on the basis of the same RIGHT OF ACTION CAUSE OF ACTION
cause of action, the filing of one or a judgment upon the
merits in any one is available as a ground for the dismissal Right of the plaintiff to Refers to the act or
of the others. (4a) bring/institute an action, or omission committed by the
to prosecute that action to defendant.
Section 5. Joinder of causes of action. — A party may in final judgment.
one pleading assert, in the alternative or otherwise, as 1) The plaintiff must
many causes of action as he may have against an have a valid/right
opposing party, subject to the following conditions: cause of action
2) He must have
(a) The party joining the causes of action shall comply performed all
with the rules on joinder of parties; condition precedent
(b) The joinder shall not include special civil actions or to the filing of the
actions governed by special rules; action
(c) Where the causes of action are between the same 3) The right to institute
parties but pertain to different venues or the action must be in
jurisdictions, the joinder may be allowed in the plaintiff (he is the real
Regional Trial Court provided one of the causes of party in interest)
action falls within the jurisdiction of said court and Determined by substantial Determined by the
the venue lies therein; and law. pleadings.
(d) Where the claims in all the causes action are

REMEDIAL LAW
CIVIL PROCEDURE
May be taking away by the Such does not affect the  PURPOSE: to prevent repeated litigations in regard
running of the statute cause of action. to the same parties, and same objects.
limitation, estoppel, or other  To protect the defendant from unnecessary
circumstances. litigation.
 To prevent multiplicity of suits.
RELIEF:  TEST: how to determine whether a cause of action
is single → when they refer to one and the same
obligation.
RELIEF REMEDY  There is only one delict or wrong.
 When there is only one delict or wrong, or
The redress sought or The appropriate legal form one act or omission, there is but ONE single
prayed for by the plaintiff of relief whereby a cause of action, regardless of the number of
(his prayer). remediable right may be rights violated, and all of the rights violated
enforced. must be alleged in one complaint, as there is
In one action, there can be only one act.
many remedies.  Whether the case falls within and without the
rule in splitting depends whether the wrong
SUBJECT MATTER OF THE ACTION: is one and the same in both actions, and not
upon whether different grounds for relief for
the same wrong are set for.
CAUSE OF ACTION SUBJECT MATTER  Single act or omission must only be
committed in a single contract or separate
The delict or wrongful act The physical facts, the contracts.
or omission committed by thing real or personal, the  EXAMPLE: A contracted one loan
the defendant in violation money, lands, chattels, from B, covered by a PN. Then A
of the primary rights of the and the like, in relation to contracted another, covered by
plaintiff. which the suit is another PN. When A violate both, two
prosecuted, and not the actions can be filed as there are two
delict or wrong committed omissions (non-payment), which is in
by the defendant. violation of the act of the plaintiff.
Refers to the thing or
OBJECT in dispute.
INDUSTRIAL FIANANCE CORP. V. APOSTOL: trucks
NATURE OF THE ACTION and JURISDICITON OF THE were secured by PN, chattel mortgage and REM.
COURT: allegations of the complaint and the reliefs
prayed for. o They then failed to pay, and a collection suit was
filed against them.
 The nature of the action, as constituted in the o The debtor-spouses sold a property subject of the
allegation of the complaints → cannot change. REM to a third person.
 Same theory, always. o In TCT, a mortgage lien was annotated in the
 If you are the defendant, and you are the Certificate of Title the third person bought, so they
defense, you must formulate the theory of asked for the cancellation of the mortgage lien.
your case, and your legal basis. o The creditor opposed the cancellation, as it is not
 PRESENT RULES: the allegations of the complaint yet paid.
as well as the reliefs prayed for. o SC: should the prayer or petition for cancellation be
granted? YES.
SEC. 3: How many suits may a party institute for a single o The action to recover the debt, the mortgage claim
cause of action? NOT MORE THAN ONE SUIT. is deemed abandoned, and the inscription may now
be stricken off.
SEC. 4: SPLITTING A SINGLE CAUSE OF ACTION: o Why is there abandonment? The filing of the
consequences of splitting of cause of action. collection suit will constitute an abandoning of the
mortgage, otherwise, that will constitute splitting of
 ―Splitting‖: Plaintiff files two or more suits are the cause of action because there is only one delict
instituted for one cause of action. or wrong.
 The practice of dividing one cause of action  If there is no abandonment, he can proceed
into different parts, and each part is a subject to the second remedy.
of a separate action. o REASON: if it is not abandoned, you are allowing
 EFFECT: a ground for the dismissal of the other the creditor to pursue the second remedy, and
actions. allowing such, then that is a second action for ONE
 The filing of the first may be pleaded in DELICT, which is non-payment.
abatement of the other/s. o Creditor has two remedies for non-payment:
 Lis pendentia: if other’s do not yet 1) Collection, OR
2) Foreclosure of mortgage.
have judgment.
 If there is already a judgment in one, then o There is only one delict or wrong committed by the
that judgment is available as a bar to the defendant; to pursue one means abandoning the
other/s → invoke res judicata. other.

REMEDIAL LAW
CIVIL PROCEDURE
IMPORTANT: to know the basic difference between a SEC. 5: JOINDER OF ACTIONS: all the causes of action
cause of action and a remedy for its enforcement. must arise from same contract, same obligation, or same
relations of the parties.
 Splitting: plaintiff must not pursue all remedies,
whether simultaneously or successively.  What if the plaintiff in one complaint sued for a (1)
 BREACH OF CONTRACT: single cause of action. collection of unpaid loan, (2) specific performance
Remedies: of contract A, (3) rescission of contract B, and (4)
1) Specific performance, or recovery of damages for quasi-delict? Can they be
2) Rescission joined?
 ONLY alternative remedies.  YES, as the rules do not prohibit such.
 If containing several stipulations:  The rule on permissive joinder is only subject
 GENERAL RULE: contract only constitutes to four rules.
single cause of action.  Does not mention that it must arise from the
 EXCEPTION: a contract which provides same relations of the parties.
several obligations at different times gives  ONLY LIMITATIONS/Conditions which will govern
rise to many causes of actions as there are in permissive joinder:
violations. 1. The party joining the causes of action shall
 HOWEVER, even if a contract provides for comply with the rules on joinder of parties,
several stipulations to be performed at 2. The joinder shall not include special civil
different times, all obligations already actions or actions governed by special rules,
matured at the time of the suit must be 3. Where the causes of action are between the
integrated as one, and those not included same parties but pertain to different venues
will be bared under the rules of splitting a or jurisdictions, the joinder may be allowed in
cause of action. the RTC provided one of the causes of
actions falls within the jurisdiction of said
court and the venue lies therein,
EXAMPLE: PN to be paid in different installments. If one 4. Where the claims in all the causes action are
installment is not paid, can you already sue? YES, as principally for recovery of money, the
there is already an omission. aggregate amount claimed shall be the test
of jurisdiction.
o If the second installment is not paid, can you sue?
YES. JOINDER OF CAUSES OF ACTION:
o Unless, it has an escalation clause, which renders
the entire amount due and demandable. When is there a PERMISSIVE joinder of parties?
o If when the complaint was filed, three installments
are pending, you need to file that in one complaint. 1) There is a right to relief in favor of or against the
parties joined in respect to or arising out of the
same transaction or series of transactions, AND
2) There is a question of law or fact common to all of
such parties.
BAYANG V. COURT OF APPEALS: Bayang filed quieting EXAMPLE: A and B, as passengers rode Bus 1. Bus 1
of title with damages against Biong. collided Bus 2.
o Pending the case, Biong succeeded in possessing o A and B can filed separate actions.
the lot. o But they can also join in one action.
o TC: in favor of Biong. o REASON: the right to relief is in relation to arises
o CA: declared Bayang owner of the land, and entitled out of the same transaction or contract.
to the share of proceeds of copra, and the judgment  One transaction, one incident: the same
became final. vehicular accident.
o Bayang filed for recovery of income. o Is there a common question of fact? Of law in all the
o SC: plaintiff’s second action is barred by the first parties? YES, all the same evidence, and same law
judgment. to be applied.
o Splitting causes of action is not allowed.
BACHRACH V. ENCARANGAL: same as INDUSTRIAL A, an owner of a land, wanted to sell his land. Since he
V. APOSTOL. does not have the network, he went to a real estate
broker, X. If X is able to sell, he agrees to pay him 3%, but
o Recovery of ownership of land without claiming the only for a period of 1 month, otherwise, A will find another
produce, or the principal without the interest, a brokers. X then went to B (sub-agent), who knows many
subsequent action to collect the produce or interest rich people around. X told him that B will get half of the
is BARRED, otherwise, such will constitute splitting. commission. Through the efforts of B, the land was sold.

REMEDIAL LAW
CIVIL PROCEDURE
A, the landowner, withdrew the agency.  Each action must be based according to its own
merit.
o X and B filed a complaint against A for the
commission.
o A filed a Motion to Dismiss, to drop B, as there is HOW MAY CAUSES OF ACTION BE JOINED?
misjoinder of parties. ALTERNATIVELY or OTHERWISE.
o Can the sub-agent sue and join the agent? YES, as
the rules only require two elements.  ―Otherwise‖ → CUMULATIVELY.
 The old Rules prohibited such, as there is a specific CUMULATIVE ALTERNATIVE

requirement.
Action for declaration of Breach of action or tort.
NO. 2: special civil actions and special rules have different paternity and for support.
rules than ordinary civil actions.
NO. 3: INSURANCE V. WARNER: there is an admiralty case

here, and Security Bank ordered spare parts from London
1) Same parties, and was shipped on board belonging to Warner.
2) Only applicable when it is filed with the TC, not with
the MTC. o Upon arrival, the items were damaged.
o Security Bank sought to be compensated by the
NO. 4: all the causes of action are principally for recovery marine insurance, and the marine insurance was
of money. taken by Insurance Company of North America.
o ISSUE: was there proper joinder of party
 Test of jurisdiction: aggregate amount → defendants? YES.
TOTALITY RULE. o In the ALTERNATIVE.
o BASIS OF CAUSE OF ACTION:
1) Against Warner: based on breach of contract,
FLORES V. MALLARE-PHILLIPS: plaintiff, a dealer of IN THE ALTERNATIVE
tires, loaned A P11K and B P10K. 2) Against the Bureau of Custom: based on
quasi-delict.
o That time, the jurisdictional threshold is P20K, and o There is proper joinder of causes of action as it can
by sheer computation, he filed in in the RTC. be in the alternative or otherwise.
o Defendants filed a MTD on the ground that the RTC
has no jurisdiction over the case.
o RTC has jurisdiction? YES, present rule. Is joinder of causes of action here compulsory or
 SEC. 33 (1), BP 129: TOTALITY RULE for permissive? Merely PERMISSIVE, as there is no law
the demand for the test of jurisdiction. which compels a party to join his causes of action and
 For purposes of jursidiciton, the totality of the bring them in one or at one and the same time.
amount of money claim, even if it arose of
different transaction owing/owed by different RULE 3
parties, it is the totality rule which is Parties to Civil Actions
applicable.
o Test of jurisdiction: totality of all of the claims.
CLASSES OF PARTIES:
o RTC HAD jurisdiction, BUT is there proper joinder of
parties? NO. 1) Real Parties in Interest
1) Right to relief must arise from same 2) Representative Parties
transaction, and 3) Permissive Parties
2) There is a question of fact and law common 4) Indispensable Parties
to all parties joined. 5) Necessary Parties
o Once parties are dropped, the complaint shall be
amended, and the original ceases to exist. SEC. 1. Who may be parties; plaintiff and defendant.
o Since the claim is below P20K, then the case is
properly dismissed by the RTC. Only natural or juridical persons, or entities authorized by
law may be parties in a civil action. The term plaintiff may
refer to the claiming party, the counter-claimant, the cross-
SEC. 6: Is misjoinder of causes of action a ground for a claimant, or the third (fourth, etc.)-party plaintiff. The term
dismissal of action? NO. defendant may refer to the original defending party, the
defendant in a counterclaim, the cross-defendant, or the
 May be severed, or dropped, or proceeded with third (fourth, etc.)-party defendant. (1a)
separately.
 Duty of the court to order their separation.
 The dismissal of one does not affect others if there ―Only natural or juridical persons‖
is no legal ground to dismiss the same.
Q: When does personality begin?

REMEDIAL LAW
CIVIL PROCEDURE
A: At birth The term PLAINTIFF refers to the one who has a claim
while the DEFENDANT is the person against whom a
Q: When does it end? claim is demanded.
A: Upon death.
But a plaintiff also includes the party claiming in a
Q: Can you sue a dead person? counterclaim, in a cross claim, or third (fourth, etc.)-party
A: NO, as he is not anymore a natural person. He is complaint.
already a dead meat; he has no more personality.
A defendant may be an original defending party, a
In Ching vs. CA, one of the reasons given by the Court as defendant in a counterclaim, or defendant in a cross claim
to why there was no proper jurisdiction over the defendant or third (fourth, etc.)-party complaint.
Ching was because he was already six feet below the
ground. He was already substituted by his administrator SEC. 2. Parties in interest.
(the estate of the deceased Ching). There was publication
of the notice of hearing for the petition for the settlement of A real party in interest is the party who stands to be
estate. The summon was never served to him, therefore benefited or injured by the judgment in the suit, or the
the Court never acquired jurisdiction over his person. party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be
Q: What is a juridical person? prosecuted or defended in the name of the real party in
A: interest.
ART. 44, CIVIL CODE
The following are juridical persons:

―A real party in interest is the party who stands to be
(1) The State and its political subdivisions; benefited or injured by the judgment in the suit‖
(2) Other corporations, institutions and
Q: Who is a real party in interest?
establishments for public interest or purpose,
A: One who stands to be benefited or injured by the
created by law; their personality begins as soon
judgment of the court.
as they have been constituted according to law;
(3) Corporations, partnerships and associations for Q: Why may an action be only prosecuted and
private interest or purpose to which the law defended in the name of a real party in interest?
grants a juridical personality, separate and A: Because an action always relates to a RIGHT.
distinct from that of each shareholder, partner or
member. (35a) An ACTION is that by which one prosecutes another for
the enforcement or protection of a right or prevention or
redress of a wrong (because of a right violated).
Juridical persons are not natural persons but they are
given rights because they are created by law. We all know that the courts may exercise judicial power in
cases where there is an actual controversy involving
One example of a juridical person is a corporation. Hindi RIGHTS which are legally demandable and enforceable.
mo masasampal yan, o masisipa yan kasi hindi mo nga How can you demand if you don‟t have a right? How can
makita eh. But if you buy say, a beer, in a store and you you be a defendant if you did not violate a right? So, the
don’t pay, that corporation na pinagbilihan mo can sue basis is RIGHT.
you. And the Court will award it damages for you to pay
kasi „di ka nagbayad. ―Or the party entitled to the avails of the suit‖
―Entities authorized by law‖ A REAL PARTY IN INTEREST is:

1) the party who stands to benefited or injured by
Entities authorized by law are those created directly by the judgment in the suit, OR
law, e.g. MWSS or waterworks district. 2) the party entitled to the avails of the suit
Remember, a juridical entity may be created by a Others may not be benefited or injured yet the law allows
GENERAL LAW or by a SPECIAL LAW. For instance, them to prosecute a case – those who are suing in a
NAWASA, electric cooperatives. Under the Local REPRESENTATIVE CAPACITY.
Government Code, a municipal government may sue and
be sued. Q: What is an example of an instance where a party,
although he is not directly benefited or injured,
―The term plaintiff may refer to the claiming party, the nonetheless the law allows them to the avails of the
counter-claimant, the cross-claimant, or the third suit?
(fourth, etc.)-party plaintiff. The term defendant may A: A derivative suit
refer to the original defending party, the defendant in o In a derivate suit, the corporation is the real party
a counterclaim, the cross-defendant, or the third in interest, but the one suing is the minority
(fourth, etc.)-party defendant‖ stockholder.
A corporation is a juridical person having separate

personality from the stockholders or officers. In a derivate

REMEDIAL LAW
CIVIL PROCEDURE
suit, the law allows the party to sue even if he will not be
benefited or injured (someone else will be benefited or When two or more persons not organized as an
injured by the judgment of the court). So they are entitled entity with juridical personality enter into a
to the avails by the suit. transaction, they may be sued under the name by
which they are generally or commonly known.
―Unless otherwise authorized by law or these Rules‖
In the answer of such defendant, the names and
GENERAL RULE: Only juridical persons may be allowed addresses of the person composing said entity
to sue. If there is an aggrupation of persons and they want must all be revealed. (15a)
to sue (e.g. AUF Saturday Dance Club – not
incorporated), ALL of them should be parties. o When two or more persons are being
sued under a common name, having
EXAMPLE: entered into a transaction
Suppose we formed the AUF Saturday Dancing and o Under the old rule, what was provided
Drinking Club, where every Saturday, we hire a hotel was ―two or more persons associated in
where we dance and drink. a business transact such business
Suppose the food and drinks that were served were under a common name.‖ The word
not in accordance to what we and the hotel have agreed ―business‖ was removed because that is
upon (e.g. kulang ang cake, kulang ang drinks, etc.) for profit. But now, you just transact,
Now we want to sue the hotel (or the hotel wants to there is no business
sue us). Who should be parties? ALL of us should be o In our example (Saturday
named plaintiffs and defendants, because we are not Dance Club), we hire the hotel
juridical persons – we are natural persons. to entertain ourselves. There
In other words, there is proper JOINDER OF was no business. We will not
PARTIES because: profit financially. Although there
1) there is a right to relief for the parties joined; is a psychological profit, e.g.
2) in respect to or arising out of the same rest, recreation, there is no
transaction or series of transaction; and financial profit. We can be sued
3) there is a common question of law or fact. under a common name: AUF
SO ALL OF US SHOULD BE Saturday Dance Club – the
IMPLEADED. name under which we
transacted
EXCEPTIONS (to the rule requiring the impleading of all
real parties in interest, if there are plenty, considering they 3) EJECTMENT (Art. 487, Civil Code)
are not juridically incorporated or established): ART. 487.
Any one of the co-owners may bring an action in
1) CLASS SUIT (Sec. 12) ejectment.
SEC. 12. Class suit. o Allows anyone of the co-owners to bring
an action for ejectment
When the subject matter of the controversy is
one of common or general interest to many ―Every action must be prosecuted or defended in the
persons so numerous that it is impracticable to name of the real party in interest‖
join all as parties, a number of them which the
court finds to be sufficiently numerous and Q: In whose name must an action be prosecuted and
representative as to fully protect the interests of defended?
all concerned may sue or defend for the benefit A: In the name of the real party in interest.
of all. Any party in interest shall have the right to
intervene to protect his individual interest. Take note that the law does not require the principal to file
o When the parties are so numerous that the case because, the law does not say ―every action must
it is impracticable to bring them all be prosecuted and defendant BY the real party in
before the court, in which case some interest.‖ Hindi naman sinabing “by” eh. So an attorney-in-
may be made parties if they represent fact can prosecute or defend a party but in the name of the
sufficiently the interest of all. real party in interest. The real party in interest has
o In other words, the subject matter of the submitted to the jurisdiction of the court by filing the
action is common to many and this complaint through his lawyer.
―many‖ is so numerous that it would be
impracticable to bring them all to the SEC. 3. Representative as parties
court so that in such an instance, only a
few or some that are sufficiently Where the action is allowed to be prosecuted or defended
representative of the interest of all may by a representative or someone acting in a fiduciary
bring the suit to the court. capacity, the beneficiary shall be included in the title of the
case and shall be deemed to be the real party in interest.
2) SUIT UNDER A COMMON NAME (Sec. 15) A representative may be a trustee of an express trust, a
guardian, an executor or administrator, or a party
SEC. 15. Entity without juridical personality authorized by law or these Rules. An agent acting in his
as defendant.

REMEDIAL LAW
CIVIL PROCEDURE
own name and for the benefit of an undisclosed principal Registry of Property in case the assignment involves real
may sue or be sued without joining the principal except property. (1526)
when the contract involves things belonging to the
principal. EXAMPLE:
You have a promissory note. „Yung mga bad debts
iniipon, meaning hindi na nagbabayad yan, hindi na
Q: May an agent sue alone? makasingil. Pina-pacakage nila „yan then they assign it to
A: YES. a collecting agency. If the agency is able to collect, they
1) WHEN HE ACTS IN HIS OWN NAME (Art. will get a percentage of whatever is collected. Pero malaki
1883, Civil Code) pa ung parte nila, sobra pa sa 50-50, kasi actually bad
ART. 1883 debts nay an. It was even already claimed as a loss.
If an agent acts in his own name, the principal Nadeduct na sa taxes nila yan for purposes of computing
has no right of action against the persons with their taxable income. Pero kung may makuha, ok lang.
whom the agent has contracted; neither have Contract
such persons against the principal. In such case
the agent is the one directly bound in favor of the The real parties in interest in a contract are those who, in
person with whom he has contracted, as if the the face of the contract, appear to be parties thereof.
transaction were his own, except when the
contract involves things belonging to the Heirs of a deceased
principal. The provisions of this article shall be
understood to be without prejudice to the actions Q: Are the heirs of a deceased person real parties in
between the principal and agent. interest?
A: YES, they are real parties in interest if:
2) WHEN HE EXPRESSLY BINDS HIMSELF (Art. 1) The action arises out of a right pertaining to the
1897) deceased;
2) The action is one that survives, meaning it is not
ART. 1897 extinguished by the death of the decedent.
The agent who acts as such is not personally
liable to the party with whom he contracts, unless SEC. 16. Death of party; duty of counsel.
he expressly binds himself or exceeds the limits Whenever a party to a pending action dies, and
of his authority without giving such party sufficient the claim is not thereby extinguished, it shall be
notice of his powers the duty of his counsel to inform the court within
thirty (30) days after such death of the fact
3) WHEN HE EXCEEDS THE LIMITS OF HIS thereof, and to give the name and address of his
AUTHORITY without giving the other party legal representative or representatives. Failure of
sufficient notice of his powers (Art. 1897) counsel to comply with his duty shall be a ground
for disciplinary action.
But an agent can be sued in his own name, if he acts in
his own name, meaning undisclosed principal. But later The heirs of the deceased may be allowed to be
on, if it was discovered that the things subject of the substituted for the deceased, without requiring
litigation belong to some other persons, then the court the appointment of an executor or administrator
may order an AMENDMENT by impleading the real party. and the court may appoint a guardian ad litem for
Q: So in case the agent is authorized by the principal the minor heirs.
to bring the action, in whose name must the action be
prosecuted? Generally, any right pertaining to the deceased by
A: In the name of the PRINCIPAL, because the principal succession is also inherited. If you are a plaintiff, it is to
is the real party in interest. the extent of the right of the deceased. If you are a
descendant, it is to the extent of the estate that the heirs
Q: Is an assignee of a right of action a real party in have inherited.
interest?
A: YES. A right of action is assignable. Therefore, an
assignee, for valuable considerations is a real party in Q: Give examples of certain actions that do not
interest even if the assignment is only for the purpose of survive, meaning those that also die with a person.
collection. Articles 1624-1624 1) CRIMINAL LIABILITY
o But in civil liability, heirs are still liable by
ART. 1624. reason of act or omission. How about
An assignment of creditors and other incorporeal rights civil liability arising from the offense
charged? Does it survive? NO, it is also
shall be perfected in accordance with the provisions of
extinguished. How can you charge civil
article 1475. (n)
liability arising from offense if there is no
ART. 1625. more offense?
An assignment of a credit, right or action shall produce no o You have to distinguish. Prior to the
effect as against third persons, unless it appears in a judgment becoming final and executory,
public instrument, or the instrument is recorded in the namatay pending the case. Can the
offended party go against the heirs to

REMEDIAL LAW
CIVIL PROCEDURE
recover civil liability arising from the COMMENT:
offense charged?
i. Kung after, may finality of Q: May the bad son be a party to an action to annul
judgment, pwede because it is the sale on the ground that it is simulated?
just a matter of execution.
ii. Pero before the nullity of Q: When the son was initially sued, was he a real party
judgement? Can the offended in interest?
party still seek liability from the A: YES, because he has a right. He would either be
heir the civil liability from the benefited if he wins the case or injured if he loses the
offense charged? NO more, case.
because there can be no
more civil liability. Because On appeal, the RTC ruled that the sale was fictitious
the civil liability arising from so the court allowed the annulment. On appeal, the CA
the offense charged is ruled initially that the judgment of the trial court was
dependent upon the correct because he was deprived of his legitime.
existence of that same
criminal liability. If the But in the meantime, the will of the deceased father
criminal liability has been was probated by the probate court and ruled disinheriting
extinguished by death, how the bad son. So when the disinheritance was confirmed by
can you award civil liability of the probate court was valid, then a motion for . The
something that is not existent? disinheritance appearing in the will was confirmed by the
o Read People vs. Sumaya probate court as valid disinheritance.
HELD:
2) ACTION FOR SUPPORT
The bad son ceased to be a real party in interest. A
validly disinherited heir, and not claiming to be a creditor
3) LEGAL SEPARATION
of his deceased father, Pedro Ralla had no legal
o What can be a more permanent
personality to question the deed of sale between Ralla and
separation than death itself?
Pablo. Legally speaking, Pedo was a stranger to the
transaction as he did not stand to benefit from its
4) ANNULMENT
annulment. His disinheritance had rendered him hors de
combat.
In an action derivatively brought by the minority
stockholders against the board of directors to redress the
wrong done to the corporation, the real party in interest is IBONILLA vs. CA
the corporation itself. The minority stockholders who bring G.R. No. 97463, June 26, 1992
and actively prosecute the action is merely a nominal Grino-Aquino, J.
plaintiff. So the minority stockholders are persons entitled
to the avails of the suit. FACTS:
The Province of Cebu donated 40 parcels of land to
Q: Is it required that a civil action be prosecuted and Cebu Agricultural School (CAS) subject to two conditions:
defended by the real party in interest? (1) that if the school ceases to operate, the ownership of
the lots will automatically revert to the Provincial
TUASON vs. BULANOS Government of Cebu, and (2) that the School cannot
G.R. No. L-4935, May 28, 1954 alienate, lease or encumber the properties.
Reyes, J.
A law was passed and Cebu Agricultural School
HELD: became an extension of the Cebu State College of
The law only requires that it must be prosecuted ―in Agriculture. The province of Cebu demanded the return of
the name of, NOT necessarily ―by‖, the real party in the lands on the ground that the donation was void ab
interest, so the only mandatory requirement is that it must ignition since CAS did not have the personality to be a
be in the name of. done of the real property.
On the matter of real parties in interest, let’s go to some
cases to understand it better. The plaintiffs (officials, faculty and employees of
CAS, parents of enrolled student, and various school
RALLA vs. RALLA organizations) opposed the rescission of the donation.
G.R. No. 78646, July 23, 1991 They filed an action for quieting of title to the lots.
Cruz, J. The RTC dismissed the complaint on motion of the
Province on the ground that the case has become moot
FACTS: and academic and that the Province and CAS have
A father had two sons, one is good (Rosendo) one is already entered into a memorandum of agreement.
bad (Pedro). The father decided to give everything to the Plaintiffs appealed to the appellate court and the
good son. He executed a deed of sale in favor of the good appellate court affirmed the dismissal of the lower court.
son over of 149 parcels of land. When he died, the bad So they elevated the matter to the SC.
son filed a complaint to annul the deed of sale on the
ground that the contract of sale is simulated. ISSUE: WON petitioners are real parties in interest. NO.

REMEDIAL LAW
CIVIL PROCEDURE
HELD: Defendant filed a Motion for Reconsideration, but was
The numerous petitioners are admittedly not the denied. Hence, the present petition imputing grave abuse
owners of the lots in question. They do not claim any of discretion on the part of the appellate court in allowing
interest in them that was violated, nor have they suffered respondents to prosecute the case despite the clear
any injury that might warrant a grant of relief. Clearly, the allegations that respondents are not the real parties in
finding of the appellate court and the trial court that they interest
are not real parties in interest who may sue to quiet the
title to the properties in question, is correct. ISSUE: WON plaintiffs are real parties in interest. NO.
Only a real party in interest is allowed to prosecute HELD:

and defend an action in court (Sec. 2, Rule 3 of the Rules Under Rule 3, Section 2 of ROC, a real party in
of Court). interest is defined as "the party who stands to be
benefited or injured by the judgment in the suit, or the
COMMENT: party entitled to the avails of the suit." "Interest" within
Since the action is for quieting of the title, it is only the the meaning of the rule means material interest, an
owner who can file such. How can you ask to quiet title if interest in issue and to be affected by the decree, as
you are not the one claiming to be owner of the property in distinguished from mere interest in the question involved,
question? So they did not claim any interest in the or a mere incidental interest. The interest of the party
property in question. They cannot even claim any interest must also be personal and not one based on a desire
in the subject or the right that was violated nor have they to vindicate the constitutional right of some third and
suffered any injury that might warrant a grant of relief. unrelated party. Real interest, on the other hand, means
a present substantial interest, as distinguished from a
In other words, if you are asking to recover title to property mere expectancy or a future, contingent, subordinate,
or to recover property or erase a cloud in ownership or or consequential interest.
title, the party there must be the OWNER.
Plaintiffs are mere lessees of the property in
Halimbawa, ito may-ari ayaw mag-sue sa usurper question. As such, they have no present substantial
(pumasok sa property). Ikaw ngayon, nakikialam ka. Nag- and personal interest with respect to issues involving
sue ka against the owner, “Oy ibalik mo sa kanya!” Yung ownership of the disputed property. The only interest
may-ari nga hindi na nagrereklamo. Ikaw pa. Anong rights they have, in the event that petitioner's title over the
mo? You are not claiming to be the owner. How can you subject property is cancelled and ownership reverts to the
be a plaintiff in an action for quieting of title? That is point. State, is the hope that they become qualified buyers of
the subject parcel of land. Undoubtedly, such interest is
a mere expectancy.
VSC COMMERCIAL ENTERPRISE vs. CA
G.R. No. 121159, December 16, 2002
Austria-Martinez, J. Even the plaintiffs themselves claim that in case of
reversion of ownership to the State, they only have "pre-
emptive rights" to buy the subject property; that their real
FACTS: interest over the said property is contingent upon the
Plaintiffs (as leseees) filed a complaint for reversion government's consideration of their application as buyers
against VSC Commercial (as lessor) on the ground that of the same. It is only the government that has the
defendant’s title is "fraudulent, spurious and highly personality to bring an action for the cancellation of
questionable." In other words, nakialam ang lessees, petitioner's title and reversion of ownership of the
saying na dapat daw ibalik sa State because the lessors subject property to the State. Section 101 of the Public
acquired title to the property through fraud. Land Act categorically declares that only the government
They prayed for the cancellation of VSC's title over may institute an action to recover ownership of a public
the subject property to qualified applicants in accordance land.
with law.
Plaintiffs alleged that they the bona-fide stallholders

inside the 'Pamilihang Sentral ng Sta. Mesa', for about 10 COMMENT:
years and they have been paying their market fees to Only the State can ask for reversion of title, being the
defendant VSC Commercial Enterprises, Inc. under the owner. Another person cannot ask for reversion of title
latter's claim that it is the registered owner of the lot and because he does not even claim to be the owner.
building known as the 'Pamilihang Sentral ng Sta. Mesa.
Q: If ever, according to the Court, what right do the
Defendant VSC filed a Motion to Dismiss on the lessees have?
ground that plaintiffs are not the real parties in A: The right is merely an INCHOATE right. In other words,
interest, as such, they have no cause of action against when you say interest, what kind of interest does the
the corporation. person have to be a real party in interest? It must be
DIRECT and MATERIAL interest, and not merely
RTC dismissed the complaint. Plaintiffs appealed to inchoate.
CA. The appellate court reversed and set aside the
order of dismissal and remanded the case to the court Q: In what sense do they have inchoate rights?
of origin for further proceedings. A: As qualified applicants, assuming later on the title will
be reverted to the State, they can later on apply to have

REMEDIAL LAW
CIVIL PROCEDURE
the property. In the future pa „yan. But to ask title to be alone if, for instance, the husband abandons her with
reverted can be claimed only by the owner, who is the real another woman. The husband need not be made a party
party in interest. Kung hindi ka may-ari, hindi ka because it is precisely from his fault and inability to act
makakapag file ng action for reversion of title. Neither can that the wife derives her cause of action to recover it.
you be a defendant if you are not claiming adverse title to
the property, adverse to that of the owner. Q: What is the effect if there is non-joinder of the
husband or the wife in a suit affecting the community
EXAMPLE: property?
A: The Supreme Court ruled that that it is merely a
For instance, a property is being tenanted. Now you FORMAL DEFECT, it can be corrected even for the first
claim to be the owner of the property. Can you sue the time on appeal.
tenant? Of course not! Sabihin ng tenant, ―I don’t claim
that I am the owner, so how can you demand for me to So if a spouse, as a real party in interest, has the capacity
return title to you when I don’t have title?‖ ―I will not be to sue, even if the other is not joined, that defect is merely
injured kung kukunin mo „to sakin. But you respect my procedural and may be corrected by amendment at any
right of possession (iba yun) because I have an stage of the action.
agreement and it is annotated in the Certificate of title: my
leasehold rights.‖ But if you are asking for reversion or Q: May the husband, maintain alone, a suit with
reconveyance of title, that’s a different thing. respect to the paraphernal or exclusive property of the
wife?
A: Alone, he may not. He may not maintain an action of
SEC. 4. Spouses as parties.
any kind with respect to the paraphernal or exclusive
Husband and wife shall sue or be sued jointly, except as
property of the wife because he is NOT the owner.
provided by law. (4a)
SEC 5. Minor or incompetent persons.
Q: What are those instances when a husband and wife
may sue separately and when they may be sued A minor or a person alleged to be incompetent, may sue
separately? or be sued, with the assistance of his father, mother,
A: guardian, or if he has none, a guardian ad litem. (5a)
1) When they are judicially separated (there is a
judgment of legal separation); or Q: May a minor sue alone?
2) When there has been a separation of property A:
agreed upon in the ante-nuptial agreement where GENERAL RULE: NO, he has no legal capacity.
the property regime is absolute community EXCEPTION: He may sue or be sued, with the assistance
property; or of his father, mother, guardian, or if he has none, a
3) When they have been in fact separated for at guardian ad litem.
least 1 year; or
4) When the litigation is between the husband and A representative may be a trustee of an express trust, a
the wife (how can they be joined eh magkalaban guardian, an executor or administrator, or a party
nga sila?); or authorized by law or these Rules. An agent acting in his
5) GENERAL RULE: When the suit concerns only own name and for the benefit of an undisclosed principal
the separate property of either husband or wife may sue or be sued without joining the principal except
(syempere walang pakelam ung isa „dun) when the contract involves things belonging to the
EXCEPTION: But usually, if there is an income, principal.
you should also sue the other spouse because
the income of the property owned separately by Going back to Sec. 3, among those enumerated there
the spouses will belong to the community suing in a capacity, are… a GUARDIAN. Pero „pag minor,
property or to the conjugal partnership of gains; specific ang guardianship. The father and the mother are
or the legal guardian of their minor children.
6) When the action is upon civil liability arising from
a criminal offense; or Art. 2225 (?) of the Civil Code
7) If the litigation is incidental to the profession, The father and the mother are also the legal guardian of
occupation, or business of one spouse; or the properties belonging to their minor children. It is such
8) In an action upon quasi-delict. kind of guardianship, they need not secure judicial
appointment; it is the law itself that appoints them.
Q: May a married woman sue alone to recover
damages for the use of her paraphernal property? ―A minor or a person alleged to be incompetent‖
A: If a married woman claims damages for the use of her Q: Who is an incompetent?
paraphernal property, such damages pertain, however, to A:
the conjugal partnership, and the husband must be joined Sec. 2, Rule 92:
also in the suit.
Under this rule, the word incompetent includes:
Q: So, may a married woman also sue alone to
recover conjugal property? 1) Persons suffering the penalty of civil interdiction
A: As a GENERAL RULE, a married woman should join (like a minor – you cannot sue and be sued, but a
her husband to recover conjugal property. She may sue guardian can be appointed)

REMEDIAL LAW
CIVIL PROCEDURE
2) Who are hospitalized lepers (may leprosy ka,
pero sa ospital. Kung sa bahay ka lang, hindi ka FACTS:
“hospitalized”) Hang Lung Bank (plaintiff) lent money to Worlder
3) Prodigals, Enterprises, a corporation in Hong Kong. The loan was
4) Deaf and dumb who are unable to read and write, also secured by a surety, by the name of Cordova Chin
5) Those who are of unsound mind, even though San in Hong Kong. For failure of the principal debtor to
pay the obligation, Hang Lung Bank filed a collection suit
they have lucid intervals, and
against the debtor corporation and the surety with the SC
6) Persons not being of unsound mind, but by
of Hong Kong.
reason of age, disease, weak mind, and other A judgment was rendered in favor of Hang Lung
similar causes, cannot, without outside aid, take Bank. Unable to execute the judgement in Hong Kong
care of themselves and manage their property, (because debtor had no properties in Hong Kong), Hang
becoming thereby an easy prey for deceit and Lung Bank filed a suit in the Philippines against the surety
exploitation who had now visible assets in the Philippines. It was an
action for the enforcement of a foreign judgment – a
judgment in Hong Kong.
Take note of the words ―ALLEGED TO BE The surety filed a motion to dismiss on the ground
incompetent‖, meaning the incompetence need NOT be that Hang Lung Bank cannot file have access to our courts
judicially declared. It is enough that you just allege a party because it had no license to do business in the
to be incompetent. Ok na „yun. Then, they can already be Philippines.
represented by their father, mother, guardian, or if none, The RTC dismissed the case on the ground that since
seek the appointment of a guardian ad litem. Kung orphan Hang Lung Bank had no license to do business in the
na or kung incompetent, walang guardian, you secure a Philippines, it cannot sue.
guardian ad litem (―for that litigation only‖, a guardian TO
THE litigation). ISSUE: WON Hang Lung can sue before our courts. YES.
FOREIGN CORPORATION HELD:

SEC. 69: ―No foreign corporation or corporation
Q: May the State be sued? formed, organized, or existing under any laws other than
A: Generally, NO. those of the Philippines shall be permitted to transact
business in the Philippines or maintain by itself or
Q: But when can you not sue the State? What is the assignee any suit for the recovery of any debt, claim, or
extent of non-suability? When can the State invoke demand whatever, unless it shall have the license
non-suability? prescribed in the section immediately preceding.‖
A: When you invoke a claim for DAMAGES. It is not the lack of the prescribed license (to do
business in the Philippines) but doing business without
Suppose you believe that a law passed by the Congress is license, which bars a foreign corporation from access to
unconstitutional, can you not sue the State to declare the our courts.
law unconstitutional? ***
A foreign corporation not licensed to do business in
When the State sues you, then you CAN file a counter- the PH may not be denied the right to file an action in our
claim for damages for the unfounded suit. You can do that courts for an isolated transaction.
because the State has reduced itself to an ordinary ***
person. If you are being sued, pantay na kayo. Hindi Since plaintiff foreign banking corporation was not
naman pwedeng lamang pa rin siya. doing business in the PH, it may not be denied the
privilege of pursuing its claims against defendant for a
Q: What is the rule on foreign corporations having contract which was entered into and consummated
access to our courts? outside the Philippine courts. Otherwise, we will be along
A: It depends on whether they are engaged in trade or the law to serve as protective shield for unscrupulous
business in the Philippines. Filipino citizens who have business relationships abroad.
***
Q: If a private foreign juridical entity is doing business The complaint appears to be one of the enforcement of
in the Philippines, can they have access to our courts the Hongkong judgement because it prays for the grant of
(can they sue)? the affirmative relief given by said foreign judgment.
A: Private foreign juridical entity can have access to our However, a foreign judgment may not be enforced if it is
courts (it can sue), if it has a LICENSE to do business in not recognized in the jurisdiction where affirmative relief is
the Philippines. Otherwise, they cannot sue. being sought. Hence, the complaint should be considered
a petition for the recognition of the Hong Kong judgment
Q: What is the rule on isolated transaction? What do under Sec. 50(b) Rule 39 of the Rules of Court in order
you mean by isolated transaction? that defendant may present evidence of lack of
A: If the foreign corporation is NOT engaged in business jurisdiction, notice, collusion, fraud, or clear mistake of fact
in the Philippines, it can sue. and law.
HANG LUNG BANK vs. SAULONG COMMENT:

G.R. No. 73765, August 26, 1991 Foreign private juridical entities are not altogether
Fernan, C.J. prohibited, with license to do business in the Philippines,

REMEDIAL LAW
CIVIL PROCEDURE
from suing or maintaining an action in our courts. What the A foreign corporation which has never done any
law seeks to prevent is foreign corporation doing business business in the Philippines and which is unlicensed to do
in the Philippines without a license (one barred from business here, but is widely and favorably known in the
claiming access to our PH courts. Philippines has a legal right to maintain an action in the
It is not the lack of the prescribed license (to do Philippines to restrain the residents thereof from
business in the Philippines) but doing business without organizing a corporation therein bearing the same
license, which bars a foreign corporation from access to name as the foreign corporation, when it appears that
our courts. they have personal knowledge of the existence of such
a foreign corporation, and it is apparent that the purpose
Q: Why? of the proposed domestic corporation is to deal and trade
A: Because there is such a thing as isolated transaction in the same goods as those of the foreign corporation
rule. You are not doing business here, but you can sue in (Western Equipment vs. Reyes).
our courts. Why? Because again, it is not the lack of the
prescribed license to do business, but rather, it is the That company is not here seeking to enforce any
doing business without a license is the one that bars a rights arising from any business which it has transacted in
foreign juridical entity from having access to our courts. the Philippine Islands. The sole purpose of the action is to
protect its reputation, its corporate name, its goodwill, its
Q: Hang Lung Bank was not doing business here. Can property right, a right which it may assert and protect
it sue in our courts? against all the world, in any of the courts of the world even
A: YES, because it does not require a license. There is no in jurisdictions where it does not transact business-just the
necessity for it to secure a license – it is not doing banking same as it may protect its tangible property, real or
business in the Philippines. Wala naman siyang branch personal against trespass, or conversion. Since it is the
dito. It is suing under the ISOLATED TRANSACTION trade and not the mark that is to be protected, a trademark
RULE. acknowledges no territorial boundaries of municipalities or
states or nations, but extends to every market where the
trader's goods have become known and Identified by the
CONVERSE RUBBERS SHOES vs. UNIVERSAL use of the mark. Thus, just because Converse is not
RUBBER PRODUCTS licensed to do business here and is actually not doing
G.R. No. L-27906, January 8, 1987 business here, it does not mean that its goods are not
Fernan, J. being sold here or that it has not earned a reputation as
regards its products.
FACTS:
Defendant Universal Rubber Products, Inc. filed an In consonance with the Convention of the Union of
application with the Philippine Patent office for registration Paris for the Protection of Industrial Property to which the
of the trademark "UNIVERSAL CONVERSE AND Philippines became a party on September 27, 1965.
DEVICE" used on rubber shoes and rubber slippers. Article 8 thereof provides that "a trade name [corporate
name] shall be protected in all the countries of the Union
Plaintiff Converse Rubber Corporation (foreign without the obligation of filing or registration, whether or
corporation) filed its opposition to the application for not it forms part of the trademark."
registration on grounds that:
COMMENT:
1) The trademark sought to be registered is What the law prohibits in barring foreign corporations from
confusingly similar to the word ―converse‖ which having access to our courts is foreign corporations doing
is part of plaintiff’s corporate name; business in the Philippines without a license.
2) That the registration will cause irreparable injury
to plaintiff Again, it is not the lack of prescribed license to do
business in the Philippines, rather, it is the doing business
Defendant filed an answer where it stated that plaintiff without a license that bar foreign entities from having
has no cause of action since it is not licensed to do access to our courts.
business in the Philippines and it is not doing business
here. Q: Let us say Hang Lung Bank came here just to sue
to enforce a judgment secured from Hong Kong court.
Director of Patents ruled in favor of defendant on the
May Hang Lung Bank be sued in our courts?
ground that since plaintiff is not license to do business in
A: NO, it cannot be sued because our courts cannot
the country and is actually not doing business on its own
acquire jurisdiction.
in the PH it has no name to protect in the forum and thus,
it is futile for it to establish that CONVERSE as part of its
Q: In Ching vs. CA, what is the nature of the suit? Say
corporate name.
you sued Hang Lung Bank for damages?
Plaintiff filed a Motion for reconsideration, but it was A: It is an action in personam, ergo, summons must be
denied. served by personal service of summons.
HELD: In extra-territorial service of summons, the action is either

The rule is that it is not the lack of license but doing in rem or quasi-in rem.
business without a license is the bar from suing in our
courts. Since there is an ISOLATED TRANSACTION here, COMMISSIONER OF CUSTOMS vs. K.M.K. GANI
plaintiff can sue. G.R. No. 7372, February 26, 1990

REMEDIAL LAW
CIVIL PROCEDURE
Sarmiento, J. IN THE CASE AT BAR, the private respondents K.M.K.
and INDRAPAL aver that they are "suing upon a singular
and isolated transaction." But they failed to prove their
FACTS:
legal existence or juridical personality as foreign
Two containers loaded with certain cartons of
corporations.
merchandise consigened to KMK Gani and Indrapal. The
cargoes were seized and subjected to seizure and
Counsel Armando S. Padilla stated before the
foreclosure proceedings for technical smuggling by the
respondent CTA that his clients are "suing upon a singular
Commissioner of Customs.
and isolated transaction." But there is no proof to show
Atty. Armando Padilla entered his appearance for the that K.M.K. and INDRAPAL are indeed what they are
consignees KMK Gani and Indrapal. Records of the case represented to be. It has been simply stated by Attorney
do not show any appearance of the consignees in person. Padilla that K.M.K. Gani is "a single proprietorship," while
He moved for the transshipment of the cargoes consigned INDRAPAL is "a firm," and both are "doing business in
to his clients. The SolGen, on the other hand, averred that accordance with the laws of Singapore ... ," with specified
defendants did not present any testimonial evidence. addresses in Singapore. In cases of this nature, these
allegations are not sufficient to clothe a claimant of
The Collector of Customs ruled for the forfeiture of all suspected smuggled goods of juridical personality and
the cargoes in said containers. Atty. Padilla appealed to existence. The "isolated transaction rule" refers only to
the Commissioner of Customs. The latter affirmed the foreign corporations.
Collector’s decision, on the ground that there was an In other words, the allegations of your complaint, you
intention to import said goods in violation of the put that you are a foreign juridical entity not doing
Dangerous Drugs Act and to smuggle goods into our business and therefore suing under the isolated
country. transaction rule. You have to prove also your existence as
a foreign juridical entity.
Atty. Padilla appealed before the CTA contending that
the goods were never intended importations into the CONCLUSION: The petition is granted.
Philippines. Also, defendants averred that they are suing
upon a singular transaction and isolated transaction: ***
that K.M.K. Gani is “single proprietorship doing business in SINGLE PROPRIETORSHIP
accordance with the laws of Singapore” with a specified
address and that Indrapal is “a firm doing business in Only natural and juridical persons may be sued.
accordance with the laws of Singapore” with a specified
address. A single proprietorship cannot be sued in court. While the
law recognizes the existence of sole proprietorship as a
The CTA reversed the decision of the Commissioner of form of business conducted for profit by a single individual,
Customs. The Commissioner filed a petition for review it does NOT, however, vest juridical or legal personality
before the SC contending that defendants failed to
upon the sole proprietorship and therefore, it has no power
establish their personality to sue in a representative
to file or defend an action in court. The action must be in
capacity, hence making their action dismissible.
the name of the PROPRIETOR or OWNER.
ISSUE: WON the defendants failed to establish their For example, ―Juan Dela Cruz Sari-sari Store.‖ You cannot
personality to sue in a representative capacity. YES. sue that because it is not a juridical person, nor is it a
natural person. While the law recognizes it as a form of
HELD: business organization, nonetheless, it is not empowered to
The law is clear: "No foreign corporation transacting sue or be sued in that name.
business in the Philippines without a license, or its
successors or assigns, shall be permitted to maintain or
intervene in any action, suit or proceeding in any court or
administrative agency of the Philippines; but such
corporation may be sued or proceeded against before
Philippine courts or administrative tribunals on any valid
cause of action recognized under Philippine laws."
JUASING VS. MENDOZA
However, a foreign corporation not engaged in G.R. No. L-55687, July 30, 1982
business in the Philippines may not be denied the Guerrero, J.
right to file an action in the Philippine courts for an
isolated transaction. FACTS:
The fact that a foreign corporation is not doing Juasing Hardware, a single proprietorship
business in the Philippines must be disclosed if it represented by its manager Ong Bon Yong, filed a
desires to sue in Philippine courts under the "isolated complaint for the collection of a sum of money against
transaction rule." Without this disclosure, the court Pilar Dolla.
may choose to deny it the right to sue. Under this rule, Defendant filed a Motion for Dismissal of Action
it must also prove LEGAL EXISTENCE or JURIDICAL (Demurrer to Evidence) on the ground that plaintiff has no
PERSONALITY as a foreign corporation before it can legal capacity to sue, that it is a single proprietorship, not a
qualify for availment of the said isolated transaction rule. corporation or a partnership duly registered in accordance

REMEDIAL LAW
CIVIL PROCEDURE
with law, and therefore is not a juridical person with legal ―When two or more persons not organized as an
capacity to bring an action in court. entity with juridical personality enter into a
transaction, they may be sued under the name by
Plaintiff filed an Opposition and moved for the which they are generally or commonly known‖
admission of an Amended Complaint. CFI dismissed the
case for plaintiff’s lack of legal capacity to sue, petitioner Section 15 is an EXCEPTION to the rule that requires that
not being either a natural nor a juridical person. Hence, only natural or juridical persons may be parties to a civil
this petition. action.
ISSUE: WON Juasing Hardware has the capacity to sue. Q: What is the exception?
NO. A: When two or more persons not organized as an entity
with juridical personality enter into a transaction, they may
HELD: be sued under the name by which they are GENERALLY
Sec. 1, Rule 3: OR COMMONLY KNOWN.
Who may be parties
Only natural or juridical persons or entities authorized by Q: If two or more persons are acting without a juridical
law may be parties in a civil action." personality, if they want to sue or be sued, who
should be made parties?
Petitioner is definitely not a natural person; nor is it a A: ALL such persons, because they are natural persons.
juridical person as defined in the New Civil Code of the
Philippines thus: When two or more persons enter into a transaction under
a COMMON NAME, but they are not juridically
Art. 44. The following are juridical persons: incorporated, the law allows that they may be sued under
a common name.
1) The State and its political subdivisions;
2) Other corporations, institutions and entities for Take note of the word, ―THEY MAY BE SUED.‖
public interest or purpose, created by law; their Q: What is the implication?
personality begins as soon as they have been A: It means that these ―two or more persons‖ are
constituted according to law; DEFENDANTS. They can never be plaintiffs.
o The rule that not all the members of
3) Corporations, partnerships and associations for
unincorporated society, pwede silang defendants.
private interest or purpose to which the law
But they cannot sue as plaintiffs under their
grants a juridical personality, separate and common name.
distinct from that of each shareholder, partner or o The law only allows that they may be sued as
member. defendants under their common name, but never
as plaintiffs under that common name.
There is no law authorizing sole proprietorships
like petitioner to bring suit in court. The law merely CHIANG KAI SHEK vs. CA
recognizes the existence of a sole proprietorship as a form G.R. No. L-58028, April 18, 1989
of business organization conducted for profit by a single Cruz, J.
individual, and requires the proprietor or owner thereof to
secure licenses and permits, register the business name, FACTS:
and pay taxes to the national government. It does not vest Plaintiff was illegally dismissed without just cause.
juridical or legal personality upon the sole proprietorship She sued the school for separation pay and other benefits.
nor empower it to file or defend an action in court. Chiang kai shek had been in existence before 1932, but it
was not incorporated. Chiang Kai Shek filed a motion to
Thus, the complaint in the court below should dismiss on the ground that it cannot be sued. CFI
have been filed in the name of the owner of Juasing dismissed the complaint. On appeal, CA reversed CFI and
Hardware. The allegations in the body of the complaint held that the school is suable and liable. School filed a
would show that the suit is brought by such person AS MFR, denied.
proprietor or owner of the business conducted under the
name and style "Juasing Hardware". The descriptive ISSUE: WON a school that has not been incorporated
words "doing business as `Juasing Hardware'" may be may be sued by reason alone of its long continued
added in the title of the case, as is customarily done. existence and recognition by the government. NO.
SEC. 15. Entity without juridical personality as HELD:

defendant. We hold against the petitioner. Rule 3, Sec. 1 clearly
When two or more persons not organized as an entity with provides that ―only natural or juridical persons may be
juridical personality enter into a transaction, they may be parties in a civil action.‖ It is not denied that the school had
sued under the name by which they are generally or not been incorporated. But this omission should not
commonly known. prejudice plaintiff in the assertion of her claims against the
In the answer of such defendant, the names and school.
addresses of the persons composing said entity must all As a school, defendant was governed by Act No.
be revealed. 2706 as amended by CA 180: ―any private school
recognized by the government shall be incorporated within

REMEDIAL LAW
CIVIL PROCEDURE
90 days after the date of recognition.‖ It appears that Lara spouses for the recovery of a debt, interest,
defendant had not done so at the time the complaint was damages, and attorney's fees.
filed notwithstanding that it had been in existence even Lara spouses filed a motion to dismiss on the
earlier than 1932. It cannot now invoke its own non- ground:
compliance with the law to immunize it from the plaintiff’s 1) that Merrill Lynch had no legal capacity to sue
complaint. because the transactions subject of the complaint
were entered by them not with MLFUTURES but
Having contracted with plaintiff for 32 years and with ML PIERCE FENNER & SMITH, INC.
thus represented itself as possessed of juridical 2) that the complaint states no cause of action
personality to do so, the defendant is now estopped RTC granted the motion to dismiss. MFR filed by
from denying such personality to defeat her claim Merrill Lynch was denied. Merrill Lynch appealed to the
against it. Art. 1431 of the CC, ―through estoppel an Court of Appeals. Affirmed RTC.
admission or representation is rendered conclusive upon
the person making it and cannot be denied or disproved COMMENT:
as against the person relying on it.‖ Q: What is a contract of futures?
CONCLUSION: The petition is denied. A: In a contract of futures, you are selling commodities,
e.g. soya bean, coffee, sugar.
COMMENT: Q: Why do you say futures?
A: Because coffee are still being planted in the mountains
DOCTRINE: When two or more persons without juridical
of Colombia or Kenya. So bili ka ngayon in the hope na
personality enter into a transaction, they may be sued pagharvest time, tataas yung presyo. So you play with the
under a name by which they are generally or commonly market. Sometimes, you pray also that there would be a
known. typhoon in Colombia, Kenya, or Nigeria, para ang supply
ng coffee kokonti, tataas ang presyo ng futures mo. Kung
binili mo ng 100, tataas ng 500. This is the contract in
which the parties entered into.
EXAMPLE:
Merril Lynch has been doing business in the
Philippines without a license in the Philippines for the past
Suppose I buy bread from a store named ―Luisa and 7 years and this fact was known to the defendant spouses.
Sons.‖ Assuming that after I ate the bread, my stomach Alam nila na walang lisensya.
hurt and I got sick. I then sued ―Luisa and Sons‖ in their
common name. What is the purpose? ISSUE: WON Merrill Lynch may sue before the Philippne
courts to enforce its rights against Lara spouses. YES.
o To protect the public kasi hahanapin pa „yan.
Sino ba si Luisa? Sino bang mga anak niyan? HELD:
That is too burdensome for the public to be Lara Spouses are now estopped to impugn Merrill
doing. Lynch’s capacity to sue because they willingly transacted
o That is why Sec. 15 gives an EXCEPTION to the with MLFUTURES knowing that it is a foreign corporation
rule na pwede muna initially, to sue “Luisa and doing business in the PH without a license. ONE WHO
HAS DEALT WITH A CORPORATION OF FOREIGN
Sons” bakery because that is the common name
ORIGIN AS A CORPORATE ENTITY IS ESTOPPED TO
that they are doing business in. But in their DENY ITS CORPORATE EXISTENCE AND CAPACITY
answer, kailangan sabihin nila kung sino si Luisa TO SUE. The court is convinced that the Lara’s transacted
(nanay), and kung sino ang sons niya, kung ilan business with Merrill Lynch through its agent in the
ba sila, etc. Philippines. The fact is that ML FUTURES dealt with US
stocks for and in behalf of Lara spouses.
MERRILL vs. CA The rule is that a party is estopped to challenge the

G.R. No. 97816, July 24, 1992 personality of a corporation after having
Narvasa, C.J. acknowledged the same by entering into a contract
with it. And the "doctrine of estoppel to deny corporate
DOCTRINE: If a foreign juridical entity is doing business in existence applies to foreign as well as to domestic
the Philippines, in order to have access to our courts, it corporations. One who has dealt with a corporation of
must have license. If it is doing business but without a foreign origin as a corporate entity is estopped to deny its
license, it cannot sue BUT it may be sued. So service of corporate existence and capacity."
summons can be made.
COMMENT:
FACTS: The court here applied the principle of estoppel because it
Merrill Lynch , a non-resident foreign corporation, not found that Merril Lynch has been doing business in the
doing business in the Philippines, agreed to act as a Philippines without a license for the past 7 years and that
broker for the futures trading in the US of the Lara fact was known to the defendant who benefited and
spouses. For failure of Lara spouse to pay, Merrill Lynch profited from their transactions.
filed a complaint with the RTC Quezon City against the

REMEDIAL LAW
CIVIL PROCEDURE
Assuming that Merril Lynch has been doing business in Suppose we there are two buses involved. We are
the Philippines and assuming that defendants were aware riding Bus A. Bus B is the other bus with whom we
from the outset that it had no license to do so, it would be collided, the other errant vehicle. Can we only sue Bus A?
inequitable for the defendants to evade payment of their Or should we sue Buses A and B?
obligation on the plea that Merrill Lynch had no license to
do so. Q: Give an example of a situation where a party is
Defendants will be in estoppel to deny plaintiff’s indispensable.
corporation existence in an action involving such claim A: In an action to recover title to a property, the registered
and this applies to foreign as well as to domestic owner is an indispensable property
corporations. Otherwise, it would violate a more basic rule o You can only sue the owner and not the tenant.
on unjust enrichment. Why can you not sue the tenant supposing that
the property is tenanted?
o Suppose a property is being leased to a lessee.
SEC. 6. Permissive joinder of parties.
Here comes a fellow who is seeking to recover
All persons in whom or against any right to relief in respect
title to the property. You cannot sue the tenant,
to or arising out of the same transaction or series of
why? Because he is not the real party in interest.
transactions is alleged to exist, whether jointly, severally,
The real owner is the real party in interest.
or in the alternative, may, except as otherwise provided in
Therefore, he is an indispensable party.
these Rules, join as plaintiffs or be joined as defendants in
one complaint, where any question of law or fact common
We talk here of joinder. Meron ng isa, isasali mo pa ang
to all such plaintiffs or to all such defendants may arise in
isa, either party-plaintiff or party-defendant. In other words,
the action; but the court may make such orders as may be
meron ng isa, pero meron pang indispensable na
just to prevent any plaintiff or defendant from being
kailangan mong isali.
embarrassed or put to expense in connection with any
proceedings in which he may have no interest. (6)
Sec. 6 is permissive. Pwede naman tayong hindi mag-join
in suing, pwedeng kanya-kanya. That is only permissive.
REQUIREMENTS of PERMISSIVE JOINDER OF
Hindi „yan mandatory.
PARTIES:
1) Right to relief for or against the parties joined; Q: Give an instance where there is mandatory joinder.
2) Relating to or arising out of a series of A: In an action for partition, all co-owners must be
transactions; and impleaded.
3) A question of fact or law common to all parties
o Halimbawa, co-owners tayo, gusto mo mag-
partition, dapat lahat tayo.
EXAMPLE:
o Let us assume that one was not included as an
If all of us were riding a bus that met an accident, then
indispensable party, will that be a ground for the
ALL of us can sue. Pwede tayo mag-join pero pwede din
dismissal of the case?
tayo kanya kanya, especially, kung kanya-kanya, kung
„ung iba taga-San Fernando, ung iba taga-Angeles. Pero
pwedeng dtto nalang lahat, isang abogado nalang. Para METROBANK vs. CA
mas mura kung tayong lahat. Kasi kung kanya kanya, G.R. No. 89909, September 21, 1990
mahal yun, pareho lang naman ebidensya. That is known Regaladao, J.
as PERMISSIVE.
FACTS:
Q: Is there an instance under the rules where joinder X is the owner of a property. He went to the bank and
is mandatory? borrowed money. To secure the payment of the loan, X
A: mortgaged his property to Metro Bank. The mortgage lien
SEC. 7. Compulsory joinder of indispensable parties. was annotated in the certificate of title. Subsequently Mr.
Parties in interest without whom no final determination can Y claiming to have a better right of interest in the property
be had of an action shall be joined either as plaintiffs or of X, which was mortgaged to the bank, filed suit for
defendants. (7) annulment of title. The Bank was not impleaded. A
judgment was rendered by the trial court annulling the title
of X and ordered X to recover the property to Y. The
―Parties in interest without whom no final matter reached the SC, which was questioned by
determination can be had of an action‖ MetroBank.
Q: How are these parties called? HELD:
A: INDISPENSABLE PARTIES. Judgement was null and void because Metrobank is
an indispensable party. It was a mortgagee who was not
Q: Again, who are indispensable parties? impleaded in an action for annulment.
A: Parties in interest without whom no final determination Why is Metrobank an indispensable party for which no
can be had of an action. final determination can be had of an action? Because the
mortgage was annotated in the certificate of title, so if you
Q: What makes a party indispensable such that no annul the certificate of title in favor of X, it will also annul
final determination can be had? the right of the mortgagee. And the mortgagee bank, not
being impleaded, is deprived a property right without
due process of law.
EXAMPLE:

REMEDIAL LAW
CIVIL PROCEDURE
A mortgage has a property right and the law requires 1) he is the owner of the chattel sought to be replevined,
that no person shall be deprived of right, liberty or property or
without due process. If you allow the annulment, the effect 2) he is entitled to the possession of the chattel.
is you will be depriving the mortgagee bank of his property
right without due process of law. He was never heard of. Q: When may a person be entitled to possession even
*** if he is not the owner?
A: Mortgage, lease, loan in commodatum
Q: So what is the test to determine whether a party is
indispensable? Q: What is essential in a mortgage?
A: If a party is not impleaded, HIS RIGHTS WILL BE A: It is the creation of an agency.
PREJUDICED.
Q: What kind of agency?
o This is what is meant by ―no final determination
A: Irrevocable agency. Generally, agency can be revoked,
can be had of an action‖
except when it is irrevocable. What are the instances
o That is why the ruling of the SC, if an
when it is revocable? When it is coupled with interest, in
indispensable party is not impleaded, a
which case, agency continues even after the death of the
judgement is null and void
principal.
SERVICE WIDE SPECIALISTS INC. vs. CA
In every case, the mortgagor is creating a lien, a burden
G.R. No. 103301, December 8, 1995 voluntarily on his property. Meaning, when he is unable to
Vitug, J. pay his obligation, this property now which he mortgaged,
will now answer. That is why, a salient feature of a
FACTS: contract of mortgage is that you are establishing the
Bondoc bought a motorcycle with Carmark mortgagee as the mortgagee – that in the even the
Philippines. He executed a promissory note worth principal (mortgagor) fails to pay, the attorney-in-fact may
P66,000. To secure the loan, he executed a chattel have the property foreclosed. That is why in a chattel
mortgage in favor of the seller, which promissory note, mortgagee, the mortgagee has a CONSTRUCTIVE
chattel mortgage were later assigned to Filinvest POSSESSION.
Corporation with Bondoc’s conformity.
Q: Why is the mortgagor now an indispensable party?
Later, Bondoc transferred his obligation to Cesar A: You cannot immediately foreclose a chattel mortgage
Dollente, who in turn, likewise transferred his obligation because if you foreclose it, nobody will buy it. In a chattel,
and chattel mortgage to Ernesto Dollente. The said chattel if you don’t see the condition of the car, television,
mortgage was annotated and registered because it was a motorcycle, or whatever, walang bibili, hindi mo pa nga
deed of sale of motor vehicle with assumption of alam ang hitsura o condition eh.
mortgage. So ang sisingilin na, kasi may assumption, si
Ernesto. So when Ernesto defaulted, Servicewide (to As a preliminary step before foreclosure, the mortgagee,
whom Filinvest had transferred his right) filed a suit with a having constructive possession, must first acquire actual
petition for replevin against Ernesto and a certain Amando possession so that later on, he must first file a
Custodio. possessory action called REPLEVIN. Hindi pa yan
foreclosure, it is just a first step before foreclosure.
COMMENT:
Filinvest is a financing corporation. In-assign niya yung Q: Now, what is the nature of replevin suit as a
promissory note pati chattel mortgage kay Servicewide, possessory action?
another financing company. A: The plaintiff must allege and prove that either he is the
owner of the chattel or he is entitled to the possession
It appears that Custodio subsequently bought the thereof.
questioned motorcycle from Ernesto. Upon the grant of the
replevin, Custodio filed a counter-bond para ma-release Q: In a foreclosure of a chattel mortgage, is the
yung motorcycle. Meanwhile, the suit against Ernesto was mortgagor an indispensable party?
dismissed as he no longer can be served with summons. A: YES, in a suit for replevin, a clear right of possession
But considering that Ernesto Dollente cannot be served must be established. What he claims is that he has the
with summons anymore, Servicewide filed a motion to right of possession or right to possession of the chattel.
dismiss to drop the case against Ernesto for the case to How can he prove that? He must establish a clear right to
proceed against Custodio alone. When that happened, possess the property. How can he establish that?
Custodio filed a motion to dismiss on the ground that (possessory palang ito)
Ernesto Dollente, being an indispensable party, therefore,
no valid judgment can be rendered against him. HELD:
In a suit for replevin, a clear right of possession must
ISSUE: Is Ernesto, the mortgagor, an indispensable party
be established. A foreclosure under a chattel mortgage
in a replevin suit? YES.
may properly be commenced only once there is default on
COMMENT: the part of the mortgagor of his obligation secured by the
In order that a court can grant a writ of replevin (remedy to mortgage. The replevin in the instant case has been
recover personal property, it is a possessory action), the sought to pave the way for the foreclosure of the object
plaintiff must allege and prove that either: covered by the chattel mortgage.

REMEDIAL LAW
CIVIL PROCEDURE
The conditions essential for that foreclosure ***
would be to show, firstly, the existence of the chattel
mortgage and, secondly, the default of the mortgagor. So there are TWO TESTS to determine the
These requirements must be established since the indispensability of a party.
validity of the plaintiff's exercise of the right of
foreclosure are inevitably dependent thereon Q: Suppose X is the owner of the property. He sold it
(meaning you must first secure possession, but the p to Y. Mr. A claiming to have a better title to the
must establish his clear right to possession). property, sued Y (the buyer). Is X (seller) an
indispensable party?
It would thus seem, considering particularly an A: NO.
adverse and independent claim of ownership by private
respondent, that the lower court acted improvidently when Q: Is X a real party in interest?
it granted the dismissal of the complaint against Dollente, A: NO, because he already transferred his rights to Y. A
albeit on petitioner's (then plaintiff) plea, on the ground final determination can be had in the case if A (plaintiff) is
that the "non-service of summons upon Ernesto Dollente able to prove his superior right to the property.
(would) only delay the determination of the merits of the ***
case, to the prejudice of the parties." Q: Who is a necessary party?
A:
In Imson v. Court of Appeals, we have explained: SEC. 8. Necessary party.
― . . . An indispensable party is one whose interest will be A necessary party is one who is not indispensable but who
affected by the court's action in the litigation, and without ought to be joined as a party if complete relief is to be
whom no final determination of the case can be had. The accorded as to those already parties, or for a complete
party's interest in the subject matter of the suit and in the determination or settlement of the claim subject of the
relief sought are so inextricably intertwined with the other action. (8a)
parties' that his legal presence as a party to the
proceeding is an absolute necessity. In his absence there Q: What makes a party a necessary party?
cannot be a resolution of the dispute of the parties before A: That joining him will accord complete relief to those
the court which is effective, complete, or equitable.‖ already parties or for complete determination or settlement
of the case subject of the action.
"Conversely, a party is not indispensable to the suit if
his interest in the controversy or subject matter is distinct Q: Give an example of a necessary party.
and divisible from the interest of the other parties and will A: In an action for collection of debt, the creditor sues the
not necessarily be prejudiced by a judgment which does debtor alone, the surety is merely a necessary party.
complete justice to the parties in court. He is not
indispensable if his presence would merely permit Q: Suppose the creditor sues only the surety without
complete relief between him and those already parties to impleading the principal debtor, is that valid?
the action or will simply avoid multiple litigation." Without A: YES, because complete relief can be had in the action
the presence of indispensable parties to a suit or by the creditor against the surety.
proceeding, a judgment of a court cannot attain real
finality.‖ Q: Suppose he is just a guarantor? Can the guarantor
be sued alone without joining the debtor?
This case provides us a SECOND TEST to determine A: NO.
whether a party is indispensable. The FIRST TEST is if it
will prejudice the right of the party not so impleaded. Q: Is the principal debtor an indispensable party when
The SECOND TEST here is if an issue cannot be the loan is secured only by a guarantor and not a
resolved without impleading a party. surety?
A: YES, the debtor is an indispensable party in a
Here a mortgagor must be impleaded in a replevin
guaranty.
suit because the only way to establish plaintiff’s clear right
of possession is FIRST to prove that there was a loan
Q: What is the nature of surety as opposed to
secured by a chattel mortgage and SECOND, that there
guarantor?
was default. You cannot ask for possession under the
A: Complete relief can be had by the creditor against the
concept of constructive trust unless the mortgagor is
surety.
impleaded. That is the only way to establish your clear
o In guaranty, the creditor must first secure a
right. You cannot establish this without first impleading the
judgment against the principal debtor and
mortgagor.
exhaust all his properties. Hindi ka pwede
In passing, the failure of summons upon Ernesto dumeretso sa guarantor.
Dollente, per the Sheriff's Return dated July 19, 1983, is o In fact, you cannot sue the guarantor ahead of
said to have been due to defendant's being no longer a the principal debtor because you do not have a
resident "at the given address as per information gathered CAUSE OF ACTION. Wala pang act or omission,
from the present occupant of the premises." It appears delict or wrong. „Pag wala na siya principal
that the remedial measures provided in Rule 14 of the property, demand ka na kay guarantor.
Rules of Court regrettably have not been properly availed
of; for instance, substitute service of summons under NECESSARY PARTY – A necessary party is one who is
Section 8 thereof. not indispensable but who ought to be joined as a party to
the case, if complete relief is to be accorded as to those

REMEDIAL LAW
CIVIL PROCEDURE
already parties, or for a complete determination or - Should the court find the reason for the omission
settlement of the claim subject of the action. unmeritorious,
i. The court may order the inclusion of
e.g. Q: Can you sue the Surety, alone? Or, can you the omitted necessary party if
sue the principal debtor, alone? jurisdiction over his person may be
obtained.
A: Yes,you can sue the surety alone, without joining the - in other words if the omission is
principal debtor. Likewise, you can sue the principal debtor unmeritorious AND the court may
alone, without joining the surety. Neither is indispensable acquire jurisdiction over his person,
since the plaintiff can seek relief from either party. then, the court can order
However, either the surety or principal is an necessary inclusion(require the pleader to file the
party since, without one of them, the action would not necessary amended pleading to include
accord complete relief to all the parties. Since if you only a necessary party)
sue the surety, it would still be necessary for the surety to
subsequently sue to recover from the principal debtor. Q: What is the effect should the pleader fail to comply
with the order of the court to implead a necessary
- In otherwords, the whole idea of joining a party?
necessary party is to avoid multiplicity of suit-
A: i. The failure to comply with the order for his inclusion,
without justifiable cause, shall be deemed a waiver of
Distinction between an indispensable party and a the claim against such party.
necessary party - So wala ka ng right against the necessary party.
Illustration
Indispensable party Necessary Party Q: You only sued the principal debtor. And the
court found that the non-joinder of the surety is
An indispensable party A necessary party should unmeritorious, the court therefore issued an order
must be joined under any be joined whenever for the pleader to include the surety. But the
and all conditions; possible pleader failed to comply with the order of the
Court. What would be the consequence?
A: The pleader would have deemed to have
In other words, an indispensable party must be joined waived his claims against the surety.
because the court cannot proceed without him. Hence, his NOTE: General rule, if one fails to comply
presence is mandatory. The presence of a necessary with the order of the court, the court can
party is not mandatory because his interest is separable order the dismissal of the case in
5
form that of indispensable party accordance with sec. 3, Rule 17. The rule
in non-joinder of necessary party is an
exception to the said rule since the rule
specifically states its effects. The only
NON- JOINDER OF PARTIES sanction is that the failure to comply would
only result in the waiver of the claim against
Sec 9 Nonjoinder of necessary parties to be pleaded-
the omitted party.
Whenever in any pleading in which a claim is asserted a
NOTE: ii. The non-inclusion of a necessary party does
necessary party is not joined, the pleader shall set forth
not prevent the court from proceeding in the action,
his name, if known, and shall state why he is omitted.
and the judgment rendered therein shall be without
Should the court find the reason for the omission
prejudice to the rights of such necessary party.
unmeritorious, it may order the inclusion of the omitted
- Effect of failure to include w/o justifiable
necessary party if jurisdiction over his person may be cause : deemed a waiver of the claim against
obtained. sought
The failure to comply with the order for his inclusion, - Hence, where there’s failure of party to to comply
without justifiable cause, shall be deemed a waiver of the with court’s order re inclusion of indispensable
claim against such party. parties = maybe ground for dismissal.
The non-inclusion of a necessary party does not prevent

the court from proceeding in the action, and the judgment Section 10. Unwilling co-plaintiff. — If the consent of any
rendered therein shall be without prejudice to the rights of
such necessary party. (8a, 9a)
5
Section 3- Dismissal due to fault of plaintiff. — If, for no justifiable
Q: What is the effect of non-joinder of a necessary cause, the plaintiff fails to appear on the date of the presentation of his
party? evidence in chief on the complaint, or to prosecute his action for an
A: Whenever in any pleading in which a claim is asserted unreasonable length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed upon motion of the
a necessary party is not joined- defendant or upon the court's own motion, without prejudice to the
i. The pleader shall set forth his name, right of the defendant to prosecute his counterclaim in the same or in a
if known, and shall state why he is separate action. This dismissal shall have the effect of an adjudication
omitted. upon the merits, unless otherwise declared by the court.

REMEDIAL LAW
CIVIL PROCEDURE
party who should be joined as plaintiff can not be rendered therein shall be without prejudice to the rights of
obtained, he may be made a defendant and the reason such necessary party.
therefor shall be stated in the complaint. - Illustration: Mr. A, owner of property sells to B. X
- This is very important in cases where the party sued B(the buyer). Is the seller an indispensable
who refuses to be joined is an indispensable party. No. He will not be benefited or injured by
party. any judgment of the court. Because he already
Illustration parted his right. Class Suit: when the parties are
Q:magkakapatid, ung matanda, inako nia na so numerous that it is impractible to bring them
lahat ng property from the parents. Ngayon, into court
matapang-tapang ung bunso, sabi ng bunso, filan - When can a party properly intervene? When B
natin yang si kuya ng action for partition. Ayaw impleads him via third-party complaint.
ng ibang kapatid, takot si kuya. Now, kung ikaw
ung bunso, what do you do? CLASS SUIT- this is an exception to the rule that all real-
A: You implead them as defendants. Make them parties in interest must be impleaded.
defendants and state the reason therefor in the Q: What is a class suit?
complaint. A: Sec. 12
MISJOINDER AND NON-JOINDER OF PARTIES Sec 12. Class suit. — When the subject matter of the
Section 11. Misjoinder and non-joinder of parties. — controversy is one of common or general interest to
Neither misjoinder nor non-joinder of parties is ground for many persons so numerous that it is impracticable to
dismissal of an action. Parties may be dropped or added join all as parties, a number of them which the court finds
by order of the court on motion of any party or on its own to be sufficiently numerous and representative as to fully
initiative at any stage the action and on such terms as are protect the interests of all concerned may sue or defend
just. Any claim against a misjoined party may be severed for the benefit of all. Any party in interest shall have the
and proceeded with separately. (11a) right to interveneto protect his individual interest.
-
6
That is why in Flores v. Mallare-Phillipps, there - So the right to intervene is always there. (hindi na
was misjoinder. drop the party, then ung nadrop join ang term, kasi class suit e)
can proceed separately. - Exceptional situation where there are
- numerous persons in the same plight, however,
Q: is misjoinder or non-joinder a ground for the strict application… The rule proceeds when a
dismissal? class is represented to deal with the court
A: No, because the rules provide that in case of non- properly for the interest of all;
joinder, or misjoinder, the proper procedure is either to
Q: When can there be a class suit?
require the joinder, or the dropping of the misjoined parties
A:REQS:-ito lang naman dalawang requirement
as the case may be. But initially, it is not a ground for the
i. the subject matter of the controversy is one
dismissal of the case.
of common or general interest to many
persons;
Q: Thus, if an indispensable party is not joined would
ii. the parties are so numerous that it is
that be a ground for a motion to dismiss?
impracticable to bring them all to bring in court
A: No, it is not a ground for a motion to dismiss, because
NOTE: In which case, a number of them (hindi pwedeng
the procedure is in sec. 11. The court will merely order the
joinder in case of non-joinder. In case of mis-joinder, the isa lang) which the court finds to be sufficiently numerous
court will order the dropping of parties. and representative as to fully protect the interests of all
concerned may sue or defend for the benefit of all
CAVEAT: Q: But if the court orders the dropping or the - e.g taxpayer suit; Mijares, et al. v. Estate of
adding of an indispensable party (not merely Ferdinand Marcos- a suit for damages as victims
necessary party), and plaintiff/pleader fails to comply with during martial law years-pinagaawayan pa kung
the order of the court, may the court dismiss? sino ung mga victims, may committee ngayon
A: YES, under rule 17, sec. 3, failure to comply with the dian. Kahit dati, hindi sila actually kasama dun sa
order of the court is a ground for the dismissal of the case. suit, pero pwede sila magclaim, kasi class suit.
And such dismissal is with prejudice. Illustrative cases
Borlasa vs Polistico, G.R. No. L-22909 January
Misjoinder of parties – A party is misjoined when he is
28, 1925
made a party to the action although he should not be
FACTS: The plaintiffs and defendants, together with
impleaded.
several hundred other persons, formed an association
under the name of Turuhan Polistico & Co. Vicente
Polistico, the principal defendant herein, was elected
A: The non-joinder of a necessary party does not prevent
the court from proceeding in the action, and the judgment president and treasurer of the association, Under the by-
laws each member obligated himself to pay to Vicente
6 Polistico, as president-treasurer, every Sunday a sum of
G.R. No. L-66620, September 24, 1986

REMEDIAL LAW
CIVIL PROCEDURE
money.The inducement to these weekly contributions was October 31, 1967
that a lottery should be conducted weekly among the
FACTS: Security Bank imported or bought some spare
members of the association and that the successful
parts for ford on board the SS "Saikyo Maru". They
member should be paid the amount collected each week,
ordered it from Ford London. The vessel arrived at the port
from which, however, Polistico was to withheld the sum of
of Manila and allegedly discharged the shipment into the
P200 as funds of the society. After several years, so much
custody of the Bureau of Customs as arrastre operator.
funds have been accumulated, and the members became
The goods were then delivered to the consignee in
so numerous, that the whereabouts of many cannot even
damaged condition. Insurance company paid security
be ascertained anymore. An action was filed by some of
bank. Then as subrogee of the rights of the consignee the
the members against Polistico for the purpose of securing
plaintiff sued, as alternative defendants, Warner, Barnes &
the dissolution of a voluntary association named Turuhan
Co., Ltd., operator of SS "Saikyo Maru",(for breach of
Polistico & Co., and to compel the defendants to account
contract/admiralty) and the Republic of the Philippines
for and surrender the money and property of the
and/or Bureau of Customs and/or Customs Arrastre
association in order that its affairs may be liquidated and
Service (
its assets applied according to law.
for quasi-delict). The defendants other than Warner,
HELD: This is a proper case of a class suit. The subject
Barnes & Co., Ltd. moved for the dismissal of the
matter of litigation is of common general interest among
complaint on the ground that the court had no jurisdiction
the members, that is, the money and asset of the
over them and over the subject matter of the suit. The trial
corporation. Moreover, the members are so numerous that
court granted the motion as aforesaid, holding that the
it’s impracticable to bring them in court.
Bureau of Customs, being an agency of the government,
cannot be sued without its consent and that the amount of
Acar v. Rosal, G.R. No. L-21707, March 18, 1967 the claim was below the limit cognizable by the Court of
HELD: The SC allowed 10 farm labourers to maintain a First Instance.
class suit. This case involves claims by the sugar HELD: 1. On the first ground the order of
farmworkers of their share in the Sugar Amelioration Fund dismissal is correct. A long line of decisions has affirmed
(Acar vs Rosal). In this case, a suit was filed in the Court the non-suability of the Bureau of Customs in a case like
of First Instance by ten persons for their own behalf and the present. Bureau of Customsis neither a natural nor a
that of 9,000 other farm laborers to recover their alleged juridical person nor an entity authorized by law to be sued.
participations or shares in the sugar, molasses, bagasse An arm of the Department of Finance, it has no personality
and other derivatives based on the provisions of Republic of its own, apart from the national government. Arrastre
Act 809 (The Sugar Act of 1952)- that is, the sugar service, it is true, is a proprietary function. But just the
amelioration fund. same, it is a necessary incident to the primary
governmental job of assessing and collecting lawful duties,
ALTERNATIVE DEFENDANTS fees, charges, fines, and penalties. Thus, regardless of the
Q: when is alternative joinder of defendants proper? merits of plaintiff's case, obvious reasons of public policy
dictate that the present action should not be allowed
Sec. 13. Alternative defendants. Where the plaintiff is standing in court it is a claim for money against the State
uncertain against who of several persons he is entitled to itself. And the State has not consented to the suit.
relief, he may join any or all of them as defendants in the
alternative, although a right to relief against one may 2. On the question of the lower court's jurisdiction
be inconsistent with a right of relief against the other. over the subject matter of the suit the appeal must be
sustained. The cause of action against Warner, Barnes &
- We have already discussed this in passing when Co., Ltd. as operator of the carrying vessel is one of
we were taking up joined parties, in relation to admiralty and hence is within the jurisdiction of the Court
joined causes of action. But here sec. 13 is more of First Instance. Although the claim against the Bureau
on the defendant side. of Customs as arrastre operator is an ordinary civil
- You know, joinder can be both party-plaintiffs, suit which would be outside such jurisdiction by
and party-defendants. But sec. 13 is more virtue of the amount involved, the two may be joined
specific on defendants. in one action alone. Since one of the causes of action
is cognizable by the Court of First Instance the suit
NOTE: If youre not sure of which the defendant is
should be filed, as was correctly done by the plaintiff,
liable, you can sue them even if the basis of the claim
in said court, notwithstanding that the other cause of
against one might be inconsistent with the basis of
action — if standing alone — would fall within the
another.
jurisdiction of the municipal court, by reason of the
Illustrative case: amount of the demand. In International Harvester Co.
Insurance Co of America v Warner, G.R. No. L-24106, of the Philippines v. Judge Aragon, where a similar
action was filed with the municipal court, we held that

REMEDIAL LAW
CIVIL PROCEDURE
the municipal court lacked jurisdiction over the case  NOTE: this provision refers only to entities w/o
inasmuch as one of the alternative causes of action, juridical personality. but these juridical personality can
against the shipping firm, was an action in admiralty, not sue in that name
cognizable by the Court of First Instance.
RULES IN CASE OF DEATH OF A PARTY.
Sec. 16. Death of party; duty of counsel.
HYPOTHETICAL EXAMPLE Whenever a party to a PENDING action dies, AND the
- There is a vehicular collision. The other vehicle, you are claim is not thereby extinguished, it shall be the duty of
not sure who between the drivers are negligent. Basis: bus his counsel to inform the court within thirty (30) days after
where you are a passenger-contract of carriage and on such death of the fact thereof, and to give the name and
the other car: tort address of his legal representative or representatives.
- In this case, the plaintiff can join the owner of the bus and Failure of counsel to comply with this duty shall be a
the owner of the other vehicle. This can be done even if ground for disciplinary action.
the right of relief to one is based on contract while the
other is based on quasi-delict. even causes of action are The heirs of the deceased may be allowed to be
inconsistent, eg .suing in the alternative causes of action substituted for the deceased, without requiring the
- May persons be joined as plaintiffs in the alternative? appointment of an executor or administrator and the court
YES. Plaintiffs maybe joined as alternative plaintiffs under may appoint a guardian ad litem for the minor heirs.
this rule; In fact, it is also sanctioned by the rule on The court shall forthwith order said legal representative or
permissive joindero f parties. E.g Principal and Agent may representatives to appear and be substituted within a
sue in the alternative. period of thirty (30) days from notice.
If no legal representative is named by the counsel for the
Sec. 14. Unknown identity or name of deceased party, or if the one so named shall fail to appear
defendant.Whenever the identity or name of a defendant within the specified period, the court may order the
is unknown, he may be sued as the unknown owner, heir, opposing party, within a specified time to procure the
devisee, or by such other designation as the case may appointment of an executor or administrator for the estate
require; when his identity or true name is discovered, the of the deceased and the latter shall immediately appear
for and on behalf of the deceased. The court charges in
pleading must be amended accord.
procuring such appointment, if defrayed by the opposing
Sec. 15. Entity without juridical personality as party, may be recovered as costs.
defendant.
- The situation in sec. 16 is this. That the party’s
When two or more persons not organized as an entity death occurred during the PENDENCY of the
with juridical personality enter into a transaction, they action. The situation IS NOT that the DEATH
may be sued under the name by which they are generally occurred BEFORE the filing of the action.
or commonly known. - This rule applies to death occurring pendente lite,
In the answer of such defendant, the names and if death occurred prior the filing of the action,
addresses of the persons composing said entity must all you DO NOT APPLY SEC. 16
be revealed
 2 or more persons, transact business as an entity Q: What happens to a case when a party dies? If your
but not really organized as an entity, they may be are lawyer, assuming your client is the plaintiff, will
sued under the name by which they are commonly the case be dismissed because of the death of the
known; client? Does the death of the party also result in the
 Any transaction even not for profit, if two or more death of the case? Do the action also die due to the
persons transact under a common name may be sued
death of the party?
under that common name;
 PURPOSE: not to unduly burden the plaintiff; A: NO, but only if the action surives. However, there are
 e.g if you go in the store, Warner Bros cases where the case does not survive. (In other words,
 Q: May the unregistered Association sue by its pag namatay ang party, patay din, namely, the
common name? A: NO. Because the rule applies personalisimo actions, those without the person, the action
only to defendants who are sued under their common cannot prosper).
name since they don’t have juridical personality. Q: what are the examples of personalismo
 eg. May ABC and Co sue the bank? no, bec no
actions?
juridical personality;
 This applies only when the defendant is unorganized A: i. Action for support.-If the either of the party
entity but not as plaintiff. Why? this is for the dies. Sino pa isusupport mo?, patay na nga e.
protection of the public. kung namatay na ung magbibigay ng support,
 eg. Luisa and Sons bakery: assume it is a dept store, papano pa sia magbibigay ng support ?(but note,
someone bought TV from them, if you are the public, estate of the one obliged to give suppor
you will no longer ask who are these Luisa and Sons,
survives); ii. Legal separation-what is more
but later you found out that there is a defect in the TV,
you sue Juan dela Cruz v ― Unknown defendants permanent separation than death; iii. Action to
doing business under the name of Luisa and Sons‖. annul marriage. These actions cannot be

REMEDIAL LAW
CIVIL PROCEDURE
transmitted by succession. Whereas in other STEP TWO: The court shall forthwith order said legal
actions, it can be transmitted. Such actions representative or representatives to appear and be
survive. substituted within a period of thirty (30) days from
Q: kaya nga ang tanong natin one time, notice.
are the heirs of the deceased, real -itong rule na to, usually kung ang namatay ay
parties in interest? ang defendant. After the court has been notified
A: Yes, if it involves the right of the of the fact of death, and the names and
addresses of the representatives. Then the court
decedent in an action the survives.
will order these heirs to appear and be
Q: What is the effect of death of the party to an action?
substituted within 30 days from notice. Pero
A: an action which is purely personalismo in character,
pwede karin kusang loob.
such as an action for support or legal separation, is
extinguish by the death of the party. Where the claim -usually, kung ang plaintiff ang namatay, ang
however is not extinguish by death, the law provides that heirs, pasok. They ask the court for the
the legal representative or representatives or heirs of the substitution without even the counsel informing
deceased may be substituted as party. the court.
Substantive aspect of this rule: NOTE: If no legal representative is named by the counsel
i. Whenever a party to a PENDING action for the deceased party (e.g. pag di alam ng counsel name
dies, ng representatives or addresses nila), or if the one so
ii. AND the claim is not thereby named shall fail to appear within the specified period (dito
extinguished, alam, pero failed to appear within 30 days),
Q: In this case, will the substitution take effect?
A: NO, hindi yan automatic, dapat magappear ka talga. In
PROCEDURAL:
such case, the court may order the opposing party
STEP ONE: It shall be the duty of his counsel (deceased’
(ung buhay), within a specified time to procure the
counsel): TWO DUTIES OF COUNSEL
appointment of an executor or administrator for the estate
i. to inform the court within thirty (30) days of the deceased and the latter (the executor or
after such death of the fact of death, AND; administrator) shall immediately appear for and on behalf
ii. to give the name and address of his legal of the deceased. The court charges in procuring such
representative (singular) or appointment, if defrayed by the opposing party, may be
representatives.(plural) recovered as costs
NOTE: Failure of counsel to comply with - kung ang namatay ang defendant, at walang
this duty shall be a ground for representative na naname ang counsel, ang
disciplinary action. ioorder ng court ay ung plaintiff to procure the
-note, technically pag legal representative, appointment of executor or administrator.
- But if namatay plaintiff, and ikaw defendant,
pwedeng isa lang, kung meron na estate
would you bother? Of course you would not
proceedings and the court has appointed an bother, Why would you bother,
executor (with will) or administrator(without -
will) or special administrator(prior probate of SUMMARY:
will). Kung sino representative ng estate of
When death occurs during the pendency of the case
the deceased. Estate of the deceased is a and if it survives SUBSTITUTION
juridical person, personality continues but
only for the purpose of liquidating his assets, Duty of counsel to inform the court of the
paying the debt, and if there be remainder, to i. death of the party
distribute it to the persons entitled thereto,
ii. give the names and address of his
kung may will, to the persons in the will,
legal representative
kung walang will to the intestate heirs.
-representatives, kung walang naappoint na
executor, kamamatay lang ng deceased e,
The court shall order legal representative to appear for
pag di pa nakapagfile ng settlement of
substitution.
estate. Ang kanyang heirs ngayon ang
representatives. By succession. Thus, ―the
heirs of the deceased may be allowed to be
substituted for the deceased, without If the representative refuse to appear, the court will
order the opposing party to appoint a representative. In
requiring the appointment of an executor or
which case, the cost for such appointment shall be
administrator and the court may appoint a
charged as cost of suit.
guardian ad litem for the minor heirs.‖

REMEDIAL LAW
CIVIL PROCEDURE
RULE 3, SEC. 19 IS APPLICABLE ONLY WHEN THE
8
DEATH OF THE PARTY OCCURS DURING THE REITERATION: Relate this to rule 3, sec. 9, where the
PENDENCY OF THE ACTION; ORDER TO AMEND FOR non-compliance with the order of the court to join a
THE INCLUSION OF THE INDISPENSABLE PARTY necessary party merely constitutes a waiver of claim
PROPER IF DEATH OF THE PARTY OCCURS PRIOR against such party, and not the dismissal of the action.
THE FILING OF THE COMPLAINT; NON-COMPLIANCE
WITH THE ORDER TO AMEND, A PROPER GROUND
FOR DISMISSAL UNDER RULE 17, SEC. 3
ORDER LEGAL REPRESENTATIVES TO APPEAR AND
DAEL vs TEVES, G.R. No. L-34124 April 30, 1985 BE SUBSTITUTED, NOT ORDER AMENDMENT
FACTS: In this case, petitioners filed an action for Illustrative case: Take note of the process of
recovery of ownership of real property plus damages. It substitution, the procedure in case of death pendente
appears however that two of the defendants who are lite is not to order amendment but to order the heirs or
indispensable parties, because of the allegation in the representatives to be substituted.; There is no
complaint that the said defendants have inheritted the obligation on the part of the plaintiff to amend, even if
disputed property from their parents, were already ordered by the court since the procedure is for the
deceased even before filing of the complaint. In this case, court to order the heirs or representatives to appear
the court ordered the amendment of the complaint to and be substituted.
include the heirs or represtatives of the deceased CASENAS vs ROSALES, G.R. No. L-18707
defendant, who are indispensable parties. Upon the lapse February 28, 1967
of the period given, and no amendment was made by the DOCTRINE: The procedure in case of death pendent lite
peititioner, the trial court upon motion ordered the is not amendment, but to require the heirs or
dismissal of the complaint for failere to comply with the representatives to appear in court to be substituted. No
order to amend. In this case, the petitioner argues that the Res Judicata because the order of dismissal in the first
failure to amend the complaint was due to the failure of the case is null and void because the order to amend is not
defendant to inform the court of the names of the heirs or the proper procedure in substituting a deceased party.
representatives of the defendants pursuant to sec. 16 or
rule 3. FACTS: Rodolfo Aranas and Agustin Casenas filed a civil
ISSUE: WON it was correct for the trial court to dismiss action against sps. Jose rosales and concepcion sanchez.
the case since its order for the plaintiff to amend the The action is for specific performance and enforcement of
complaint to include the heirs of the deceased defendant deed of sale (Civil Case No. 261). After answer has been
correct? filed but before trial, counsel for the plaintiff gave notice to
HELD: YES, the proper procedure here is amendment the court that plaintiff Aranas and defendant jose rosales
because death occurred prior to the filing of the complaint. died. The court issued an order directing plaintiff casenas
Rule 3, Section 16 of the Rules applies to a situation to amend his complaint, to effect the necessary
where a party (whether plaintiff or defendant) dies after the substitution of the parties (para palitan parties). When the
filing of the complaint and during the pendency of the surviving plaintiff failed to comply with the order of the
case. This is not the situation in the case at bar since the court, the court dismissed the case, Later on, casenas
two defendants, whose heirs are to be impleaded died filed another complaint against the widow and heirs of
even before the filing of the complaint. defendant rosales over the same property, alleging the
same cause of action. Defendant filed a motion to dimiss
NOTE: SEC 16 applies only if the party dies during the alleging res judicata which the trial court granted in
pendency of the action. Sec. 16 Rule 3, the rule requiring accordance with sec. 3 rule 17, to wit:
the counsel to inform the court of the fact of death, does
not apply where the persons to be impleaded have already ―Section 3. Dismissal due to fault of plaintiff. — If,
died before the filing of the complaint, If death occurred for no justifiable cause:
prior the filing, you apply the general rule on amendment. i. the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or;
Where plaintiffs failed to comply with a court order
ordering the amendment of complaint to include heirs of
deceased defendants who are indispensable parties, order the court's own motion, without prejudice to the right of the defendant
of dismissal of complaint for failure to comply with the to prosecute his counterclaim in the same or in a separate action. This
order to add the indispensable party is proper pursuant to dismissal shall have the effect of an adjudication upon the merits,
7 unless otherwise declared by the court.
rule 17, sec. 3. 8
Section 9. Non-joinder of necessary parties to be pleaded.
— xxxx
The failure to comply with the order for his inclusion, without
7
Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable justifiable cause, shall be deemed a waiver of the claim against such
cause, the plaintiff fails xxxx to comply with xxx any order of the court, party.
the complaint may be dismissed upon motion of the defendant or upon

REMEDIAL LAW
CIVIL PROCEDURE
ii. to prosecute his action for an unreasonable length of VDA DELA CRUZ, G.R. No. L-41107, February 28, 1979
time, or; FACTS: This is an action for ejectment and collection of
iii. to comply with these Rules or; rentals filed by the land owner against tenant Felix Jose
iv.any order of the court, and 114 co-defendants; After the answer was filed but
the complaint may be dismissed upon motion of the before the termination of the case, defendant felix Jose
defendant or upon the court's own motion, without died and no substitution by legal representative or heirs
prejudice to the right of the defendant to prosecute his was effected after his demise. Judgment was rendered in
counterclaim in the same or in a separate action. This favor of the plaintiff. When the judgment became final and
dismissal shall have the effect of an adjudication upon the executory, a writ of execution was issued against the
merits, unless otherwise declared by the court.‖-meaning property of deceased jose. The judgment rendered as well
9
dismissal with prejudice. as execution is now being questioned on jurisdictional
ISSUE: Was the trial court correct in dismissing the grounds, that the same cannot be enforced against his
subsequent case? heirs for want of substitution
HELD: No. there was no obligation on the part of the ISSUE: WON the judgment cannot be enforced against
plaintiff to amend his complaint, and any such imposition felix jose’s heirs for want of substitution
or order by the trial court is void. Because the proper HELD: Yes, the need for substitution is based on the right
procedure of substitution is not by amendment, rather, of a party to due process. The substitution must be
substitution by notifying the court of the names and effected, if it is not effected and the court continues to hear
addresses of the heirs, and the court will order them to evidence, then, all proceedings there are null and void.
appear within 30 days. Not to amend. Since the order of Summing up then the previous ruling of this Court in the
the court is not in accordance with sec. 16 rule 3, that was afore-cited cases, and noting that Rule 3, Sec. 16,
not a valid order. Therefore, failure to comply with such Revised Rules of Court uses the word "shall", one infers
void order is not a ground for dismissal without prejudice that substitution is indeed a mandatory requirement in
Excerpts: Instead of ordering the substitution of the actions surviving the deceased. It has been held that in
deceased's legal representatives in accordance with Rule "statutes relating to procedure every act which is
3, section 16 of the Rules of Court, the trial court directed jurisdictional or of the essence of the proceedings or is
the surviving plaintiff to amend the complaint and when prescribed for the protection or benefit of the party
the latter failed to comply therewith, the said court affected, is mandatory. Since there has been no
dismissed the complaint for such non-compliance. We substitution here, the judgement, as well as the writ of
must hold, therefore, xxx that inasmuch as there was no execution are null and void.
obligation on the part of the plaintiff-appellant herein to
amend his complaint in Civil Case No. 261, any such Substitution is a mandatory requirement in actions
imposition being void, his failure to comply with such an surviving the deceased. It may still be ordered even after
order did not justify the dismissal of his complaint. judgment has been rendered since provided proceedings
Grounded as it was upon a void order, the dismissal was may still be taken.
itself void.
VDA DE HABERER vs CA, G.R. Nos. L-42699 to L-

NON-SUBSTITUTION NULLIFIES THE PROCEEDING
42709 May 26, 1981
Q: What happens if there is no substitution, will the court DOCTRINE: Since no administrator of the estate of the
continue hearing the case? deceased appellant had yet been appointed as the
A: No, If there is no substitution, the proceedings had in same was still pending determination in the Court of
court would be null and void for the simple reason that First Instance of Quezon City, the motion of the
there is violation of due process. deceased's counsel for the suspension of the running
of the period within which to file appellant's brief was
Q: What happens if there is no substitution, will the court
well-taken.
continue hearing the case?
FACTS: Florentina vda. De haberer lost a case in the trial
A: If there is no substitution, the proceedings had in court court. Appealed to CA the adverse decision against her.
would be null and void for the simple reason that there is
Her attys. were given 90 days to file appellants brief.
violation of due process.
However, during that period, appellant florentina died. As
Illustrative case: Non-substitution nullifies the entire a result, counsel gave notice of death to the court, and ask
proceeding, it being a violation of due process; the court for the suspension of the running of the period
substitution is indeed a mandatory requirement in
actions surviving the deceased within which to file appellants brief, pending appointment
of the executor of the estate of the deceased client which
9
is pending with the rtc of quezon city where the petition for
XPN to this rule is the rule on necessary parties. In such case, the non-
the probate of the will of the deceased was pending. Later
compliance with the order would not result in the dismissal of the case.
The rules merely provides that the failure to comply with the order for on, since the motion was unacted upon, when the 90-day
his inclusion, without justifiable cause, shall be deemed a waiver of the period was about to expire, the counsel again filed a
claim against such party.

REMEDIAL LAW
CIVIL PROCEDURE
motion asking for extension of 60 days or suspension of
the running of the period. The CA denied the request for Illustrative case; death of the client extinguishes
extension, and dismissed the appeal for failure to file an lawyer-client relationship, hence lawyer can no longer
appellant brief. The dismissal of the appeal was represent the deceased
questioned before the SC BARRAMEDA vs BARBARA, G.R. No. L-4227
ISSUE: WON CA committed GAD January 28, 1952
HELD: Yes, Section 16, Rule 3 of the Rules of Court sets DOCTRINE: As the defendant had died, the attorney
the rule on substitution of parties in case of death of any of representing him could not file a motion to dismiss
the parties. Under the Rule, it is the court that is called for, his client being dead, he had no longer any
upon, after notice of a party's death and the claim is not standing in court; he had no personality and could not
thereby extinguished, to order upon proper notice the legal have been represented by an attorney
representative of the deceased to appear within a period DOCTRINE2: The order of the court requiring the
of 30 days or such tlme as it may grant. Since no plaintiffs to make substitution without previously
administrator of the estate of the deceased appellant ordering the attorney for the deceased defendants to
had yet been appointed as the same was still pending name the legal representative and ordering the latter
determination in the Court of First Instance of Quezon to appear, was a violation of Rule 3 Secs 16, and was
City, the motion of the deceased's counsel for the therefore void. It is only after the failure of the legal
suspension of the running of the period within which representative to comply with said order that the court
to file appellant's brief was well-taken. More, under the will order the opposing party to procure the
Rule, it should have set a period for the substitution of the appointment of a legal representative within the time
deceased party with her legal representative or heirs, to be specified by the court, to appear in behalf of the
failing which, the court is called upon to order the interest of the deceased party.
opposing party to procure the appointment of a legal REITERATION: It is the duty of the deceased‘ counsel
representative of the deceased at the cost of the to inform the court of the 1) fact of death AND 2) name
deceased's estate, and such representative shall then and addresses of the legal representatives
"immediately appear for and on behalf of the interest of the FACTS: The counsel for the deceased defendant did not
deceased. . Thus, it has been held that when a party inform the court of the name and addresses of the legal
dies in an action that survives, and no order is issued representatives of the deceased. The court directly
by the court for the appearance of the legal ordered the plaintiff to make the substitution without
representative or of the heirs of the deceased in requiring the counsel for the defendant to name the
substitution of the deceased, and as a matter of fact deceased’ legal representatives. Although seven months
no such substitution has ever been effected, the trial had elapsed since the plaintiffs were notified of said order,
held by the court without such legal representatives they had failed to comply with it. Thereafter, counsel for
or heirs and the judgment rendered after such trial are the deceased defendant Julian Barrameda filed a motion
null and void because the court acquired no for dismissal on the ground that in failing to file an
jurisdiction over the persons of the legal amended complaint, the plaintiffs in said case, R-119
representatives or of the heirs upon whom the trial (defendants-appellants herein), showed lack of interest in
and the judgment would be binding. prosecuting the case. The court granted the motion
dismissing the case
As discussed in the previous case, the need of substitution
is base from the right of a party to due process. This HELD: The order of the court requiring the plaintiffs to
procedure of substitution is mandatory. make substitution without previously ordering the
attorney for the deceased defendants to name the
Inasmuch as appellant died during the pendency of legal representative and ordering the latter to appear,
appeal, the courts are required to order the opposing party was a violation of Rule 3 Secs 16, and was therefore
to procure appointment of legal representative to void. It will be seen that it was the duty of the attorney for
represent the estate of a deceased party. the deceased Julian Barrameda to inform the court of
Barrameda's death and furnish it with the name and
ATTY-CLIENT RELATIONSHIP IS EXTINGUISHED residence of the executor, administrator, guardian, or legal
UPON DEATH; ATTY NO AUTHORITY TO REPRESENT representative of the deceased. The attorney of the
DECEASED CLIENT; ACTIONS OF ATTY., VOID. deceased or somebody else, who does not appear of
record, may have informed the court of the death of Julian
Q: When a party dies during the pendency of the case, Barrameda, but said attorney did not furnish the name and
what is the effect in the lawyer-client relationship? residence of the executor, administrator, guardian, or legal
A: It is terminated. The agency is terminated. Counsel has representative of the deceased client, in accordance with
no more authority to represent the deceased party. Death section 16, Rule 3, above quoted. This rule must have
of client extinguishes lawyer-client relationship since it is taken into consideration the fact that the attorney for the
fiduciary in nature. deceased party is in a better position than the attorney of

REMEDIAL LAW
CIVIL PROCEDURE
the other party to ascertain who are the legal substitution. The judge now substituted the heirs, despite
representatives or heirs of his deceased client. This duty the lack of order of appearance. (dito, wala pa mang order
should not be shifted to the plaintiff or his attorney. As a to appear, pinasubstitute nia na) Then judge ordered the
consequence of section 16, the court orders the legal counsel for the plaintiff to present evidence. (umalis na
representative of the deceased party, whose name must sina atty. Antigua kasi di na daw sila ung abogado, patay
have been furnished before hand by his attorney, to na client nila, and di sila ni rehire ng heirs. Sabi ng court,
appear and substitute the deceased within thirty days. It is alis kayo? Sige bahala kayo, inorder plaintiff to present
only after the failure of the legal representative to evidence). This was followed with an order authorizing
comply with said order that the court will order the counsel for the plaintiff to present his evidence in the
opposing party to procure the appointment of a legal absence of Attys. Antigua and Branzuela, and lastly, an
representative within the time to be specified by the order treating the case as submitted for decision. A
court, to appear in behalf of the interest of the judgment was rendered against defendant. After judgment
deceased party. rendered, the children and widow moved for
reconsideration which the judge granted. But when the
In the present case, although the attorney for the heirs moved for reinstated, the judge revived its previous
deceased Barrameda did not furnish the name of the legal decision. CA affirmed the order of the trial judge reviving
representative of his deceased client, the court directly the judgment against the defendant.
ordered the plaintiffs to make the substitution without ISSUE: WON the evidence presented during the trial were
previously requiring the defendants to do so. valid evidence?
Consequently, the order of the court requiring the plaintiffs HELD: NO, when they were presented, there was
to make the substitution without previously ordering the absence of proper substitution. In short there was violation
attorney for the defendants to name the legal of due procees.
representative and ordering the latter to appear, was a
violation of Rule 3, sections 16 and was, therefore, void. NOTE: Is the revival of judgment valid? NO. Both TC &
The non-compliance with that order could not be CA erred in considering former counsels as counsels of
considered as failure to prosecute. The fault of the the heirs, upon death of a party, counsel ceased to be his
defendants should not be attributed to the plaintiffs, attorney. The attorneys for the party ceased to be the
making the latter suffer the serious consequences attorneys for the deceased upon the death of the
that are claimed to have ensued. (in the first place, bakit latter, the principal. Since an administratix has already
ang plaintiff ang gagawa ng substitution?) been appointed for the estate of the deceased, the
administratrix should have been substituted, because
NOTE2: It is stated in the appealed decision:‖So on May under the rules the executor or administratix, as legal
7, 1947, counsel for the defendant Julian Barrameda filed representatives, has the priority.(Comment: because
a motion for dismissal.‖ As the defendant had died, the when the person dies, his executor or administrator, shall,
attorney representing him could not file a motion to in the right of the deceased, prosecute and defend for or
10
dismiss for, his client being dead, he had no longer any against the deceased)
standing in court; he had no personality and could not
have been represented by an attorney. NOTE: Under the said Rule, priority is given to the legal
representative of the deceased, that is, the executor or
PRESENTATION OF EVIDENCE BY THE OPPOSING administrator of his estate. It is only in cases of
PARTY NULL AND VOID FOR BEING MADE DESPITE unreasonable delay in the appointment of an executor or
THE MANIFESTATION OF THE COUNSEL FOR THE administrator, or in cases where the heirs resort to an
DECEASED OTHER PARTY OF THE FACT OF DEATH extrajudicial settlement of the estate, that the court may
AND THE NONE REHIRING BY THE adopt the alternative of allowing the heirs of the deceased
REPRESENTATIVES to be substituted for the deceased.
Illustrative case:
LAWAS vs CA, G.R. No. L-45809 , December 12, 1986 Sec 2 of Rule 87 provided that if there’s an appointed
FACTS: Private respondent Pacifico Pelaez filed a administrator, he may bring or defend.
Complaint against petitioner's father, Pedro Sepulveda, for
ownership and partition of certain parcels of land. During Escolin‘s view: Where defendant dies, proper
trial, defendant Speulveda died. Lawas was appointed as substitution can only be effected if the court acquired
administratix. However, at the hearing after lawas has jurisdiction of the the person of defendant by Summons
been appointed of 27 Nov, Attys. Antigua and Branzuela prior to death.
for respondent deceased sepulveda manifested that with
the death of their client, their contract with him terminated
10
and that none of his children renewed their contract, but Rule 87, Section 2. Executor or administrator may bring or defend
instead engaged the services of another lawyer. This actions which survive. — For the recovery or protection of the property
or rights of the deceased, an executor or administrator may bring or
manifestation notwithstanding, the judge ordered the
defend, in the right of deceased, actions for causes which survive.

REMEDIAL LAW
CIVIL PROCEDURE
(1) DECISION IS NOT NULLIFIED DESPITE THE NON- ESCOLIN‘S VIEW: FLAWS: While it is a valid judgment,
SUBSTITUTION OF THE DECEASED IF THE DEATH because the evidence was presented when the other party
OCCURRED AFTER PRESENTATION OF EVIDENCE was still alive. However, did the judgment become final?
AND WHEN THE CASE HAS ALREADY BEEN For me, no. the judgment is not yet final and executory.
SUBMITTED FOR DECISION, AND WHEN THE TRIAL When the court came to know of the fact of death, the
COURT WAS NOT INFORMED OF THE DEATH; (2)
court should have ordered the appearance and
NOTICE OF APPEAL FILED BY COUNSEL OF
substitution. There should still be proper substitution.
DECEASED, AN UNAUTHORIZED PLEADING
Why? If indeed lawyer-client rel was terminated upon
Illustrative case:
death, ergo service upon the deceased is also null and
HEIRS OF REGOSO vs CA, G.R. No. 91879, July 6,
void. Hence, the running of the period is suspended until it
1992
FACTS: Belen Cruz-Regoso filed an action for judicial is served. The copy of the decision should have been
furnished to the substitute, so that the period will now start
partition of property with accounting and damages against
to run. Dito, di pa final, dapat niremand case sa trial court
her husband, Maximo Regoso. During the trial, after
at ninotify ang heirs of the judgement. Di pa kasi
presentation of evidence and the case has already been
submitted for decision, the husband died. However, no nagexpire ung period to appeal since null and void ung
notice of his death was filed until the decision was notice of appeal by atty Javier and di pa nabigyan copy
heirs.
rendered by the court.After promulgation of decision,
defendant counsel, atty. Javier, filed a notice of appeal
which the trial court approved. Plaintiff filed a motion to
dismiss the appeal on the ground that the defendant Q: Supposed the deceased party is a defendant
ceased to have legal personality when he died, and that for damages. Are the heirs personally liable?
Attorney Javier's authority to represent him was A: Depends. Purpose of substitution: protection of the
terminated or expired upon his demise, hence, when atty. right of every party to due process. When are the
Javier filed the notice of appeal, the same was invalid, a heirs liable? When the heirs received their
worthless piece of paper. inheritance.
ISSUE: WON the notice of appeal was ineffectual Q: If the Legal Representative failed to appear,
HELD: YES, The supervening death of the defendant, what happens? A: the court will order the OTHER
Maximo Regoso, did not extinguish his wife's action for party to initiate settlement of the estate proceedings in
partition of their conjugal assets, for it is an action that order that the executor/ administrator shall now
survives. The trial of the case on the merits was appear in the person of the deceased party.
already finished before the defendant died. Since it If no legal representative is named by the counsel for
was not informed about that event, the trial court may the deceased party, or if the one so named shall fail
not be faulted for proceeding to render judgment to appear within the specified period, the court may
order the opposing party, within a specified time, to
without ordering the substitution of the deceased
procure the appointment of an executor or
defendant. Its judgment is valid and binding upon the administrator for the estate of the deceased and
defendant's legal representatives or successors-in- the latter shall immediately appear for and on
interest, insofar as his interest in the property subject of behalf of the deceased. The court charges in
the action is concerned. procuring such appointment, if defrayed by the
Attorney Javier's appeal from the decision of the trial opposing party, may be recovered as costs.
court was correctly dismissed by the appellate court Q: What happens to the lawyer-client relationship
for upon the death of Maximo Regoso, Attorney upon death of the party?
Javier's authority to represent him also expired. Then A: Extinguished. Because it is a fiduciary relationship,
notice of appeal, which Attorney Javier filed on behalf agency-death of principal terminates the agency, lalo
of the decedent was an unauthorized pleading, hence, na ito fiduciary.
invalid
Effets of the death of a defendant in a civil suit are

COMMENT: Ibigsabhin, evidence presented were valid.
dependent upon:
Remember, death occurred here after presentation of i. Nature of the action
evidence and when the case has already been submitted ii. Time of his demise (death before or after
for decision. Differentiate this from Lawas v. CA, death judgment)
occurred in Lawas during trial, and when the attys. in
lawas manifested that they are withdrawing due to the EFFECT OF DEATH OF A PARTY WHEN INVOLVED
death and not rehired, hence null and void ang A PERSONAL ACTION (one for recovery of money,
debt or interest thereon)
proceedings. Dito sa Heirs of Regoso, tapos na ang
presentation, submitted na for decision, and take note of BEFORE final judgment AFTER final judgment of
the fact here na there was no notice of the fact of death of RTC RTC

REMEDIAL LAW
CIVIL PROCEDURE
- It shall be - The action is not granted. and the representative shall
dismissed to be dismissed, and an immediately appear for and
prosecuted in the appeal may be on behalf of the interest of
manner taken by or the deceased.
especially against the
provided in these administrator. The court charges involved
ru;es (Sec 21 - BUT, if in procuring such
Rule 3) thejudgment appointment, if defrayed by
- The ―especial‖ against the the opposing party, may be
manner of the deceased recovered as costs.
prosecution of becomes final
said money and executor , it The heirs of the deceased
claims against shall be enforced may be allowed to be
the decedent is not by execution substituted for the
set forth in Rule under Rule 39 but deceased, without requiring
86 of the Rules in accordance the appointment of an
of Court, in with Section 5 of executor or administrator
connection with Rule 86, e.g by and the court may appoint
the judicial presenting as a guardian ad litem for the
proceedings for claims against the minor heirs
the settlement of estate.
the estate of a DEATH OR SEPARATION OF A PARTY WHO IS A
deceased PUBLIC OFFICER
person.
RATIO for the dismissal
Section 17. Death or separation of a party who is a
of the case: that upon
the death of the public officer. — When a public officer is a party in an
defendant a testate or action in his official capacity and during its PENDENCY
intestate proceeding dies, resigns, or otherwise ceases to hold office, the
shall be instituted in the action may be continued and maintained by or against his
proper court wherein all successor if, within thirty (30) days after the successor
his creditors must takes office or such time as may be granted by the court, it
appear and file their is satisfactorily shown to the court by any party that there
claims which shall be is a substantial need for continuing or maintaining it and
paid proportionately out that the successor adopts or continues or threatens to
of the property left by adopt or continue to adopt or continue the action of his
the deceased. It is, predecessor. Before a substitution is made, the party or
therefore, to avoid
officer to be affected, unless expressly assenting thereto,
useless duplicity of
shall be given reasonable notice of the application therefor
procedure that the
ordinary action must be and accorded an opportunity to be heard. (18a)
wiped out from the
ordinary courts.
EFFECT OF DEATH OF A PARTY WHEN INVOLVED

REAL ACTION (one for recovery of personal property or Q: What is the situation here?
to enforce a lien thereon and actions to recover damages A: That the public officer is being sued in his
for an injury to person or property, real or personal) under official capacity, and he ceases to hold office.
RULE 3 SEC 16 Now, the action may continued when there is a
substantial need for continuing or maintaining it
GR: If defendant dies, the claim against him is NOT
and that the successor adopts or continues or
thereby extinguished and the action will not be dismissed
but continue against the decedent‟s legal representative. threatens to adopt or continue to adopt or
continue the action of his predecessor.
LEGAL OPPOSING PARTY
REPRESENTATIVE PROCUREMENT OF - NOTE: Before a substitution is made, the party or
REPRESENTATIVE officer to be affected, unless expressly assenting
thereto, shall be given reasonable notice of the
The court shall order, upon If the legal representative application therefor and accorded an opportunity
proper notice, the legal fails to appear within said to be heard.
representative of the time, the court may order  In other words, tatanungin ung successor
deceased to appear and to the opposing party to kung tinutuloy nia ba ung ginagawa ng
be substituted for the procure the appointment of predecessor.
deceased, within a period a legal representative of the - PERIOD: Within thirty (30) days after the
of thirty (30) days, or within deceased within a time to successor takes office or such time as may be
such time as may be be specified by the court, granted by the court,

REMEDIAL LAW
CIVIL PROCEDURE
probate of a will or granting of letters of
INCOMPETENCY/INCAPACITY administration shall only be prima facie
Section 18. Incompetency or incapacity. — If a party evidence of the death of the testator or
becomes incompetent or incapacitated, the court, upon intestate;-COMMENT: this refers to action in
motion with notice, may allow the action to be continued rem.
by or against the incompetent or incapacitated person
(b) In other cases, the judgment or final
assisted by his legal guardian or guardian ad litem. (19a)
order is, with respect to the matter directly
- During the pendency of the case, nabuwang
adjudged or as to any other matter that could
/incapacitated/incompetent, or nacivil interdiction, have been missed in relation thereto, conclusive
ano mangyayari dian? A: dapat imanifest sa between the parties AND THEIR
court. SUCCESSORS in interest, by title
- upon motion with notice may allow the action to SUBSEQUENT to the commencement of the
be continued, such party must be assisted by action or special proceeding, litigating for the
legal guardian or guardian ad litem; same thing and under the same title and in the
- Purpose: protect the interest of inacapacitated same capacity; and-;-COMMENT: this refers to
party action in personam. NOTE: the transfer must be
made subsequent to the commencement
TRANSFER OF INTEREST
(pendente lite) of the action for the decision to be
Section 19. Transfer of interest. — In case of any conclusive upon the successor in interest. If the
transfer of interest, the action may be continued by or
transfer occurred prior the commencement of the
against the original party, unless the court upon motion
action, the transfer will not bind the transferee. If
directs the person to whom the interest is transferred to be
the transfer occurred pendente lite, the
substituted in the action or joined with the original party.
(20) judgement is conclusive not only upon the parties
but also upon their successor in interest by title
- The transfer of interest must also occur
subsequent to the commencement of the action.
pendente lite
- (c) In any other litigation between the same
Q: Supposed there was no substitution, will the parties or their successors in interest, that only is
decision bind the successor in interest pendente lite? deemed to have been adjudged in a former
A: Yes judgment or final order which appears upon its
Q: Even if he was not included by amendment? face to have been so adjudged, or which was
A: Yes actually and necessarily included therein or
necessary thereto. (49a)
A DECISION INVOLVING THE PREDECESSOR IN
INTEREST IS CONCLUSIVE UPON THE SUCCESSOR NOTE: in rel to Rule in Res Judicata, Rule 39 Sec 47,
EVEN IF THERE WAS NO SUBSTITUTION, PROVIDED (refer to audio + codal) The transfer of interest must be
THAT THE TRANSFER OCCURS DURING THE pendent lite, if it’s prior, it is not conclusive because the
PENDENCY OF THE ACTION (Subsequent the principal is not the real party in interest.
commencement of the action)
BASIS: RULES ON RES JUDICATA (Sec 19) in Illustrative case:
relation to Rule 39, Sec. 47(b) which provides Jocson v. CA, G.R. No. 88297 March 22, 1990
that: FACTS: Petitioner Preston V. Barbasa bought a brand
new car from Southern Motors with Filinvest Finance and
Section 47. Effect of judgments or final Leasing Corp. (FFLC) financing the account. This account
orders. — The effect of a judgment or final order was later assigned to Filinvest Credit Corp. The car was
rendered by a court of the Philippines, having later repossessed by FFLC. Later on, petitioner Barbasa
jurisdiction to pronounce the judgment or final filed a complaint for damages against FFLC claiming that
order, may be as follows: it had acted illegally and maliciously in repossessing the
(a) In case of a judgment or final order car. Subsequently, the Bank of the Philippine Islands
(i)against a specific thing, or in respect to the Credit Corporation (BPICC) having bought FCC, the
(ii)probate of a will, or the (iii) administration of complaint was amended to include (BPICC) as co-
the estate of a deceased person, or (iv)in respect defendant. During the pendency of the case, the Bank of
to the personal, political, or legal condition or the Philippine Islands (BPI) acquired all the assets of its
status of a particular person or his relationship to wholly owned subsidiary, BPICC. But BPI was not formally
another, the judgment or final order is included or substituted as party defendant for BPICC.
conclusive upon the title to the thing, the will After trial, judgment was rendered in favor of Barbasa, and
or administration or the condition, status or on motion, a partial execution was granted by RTC. Now,
relationship of the person, however, the FFLC and BPICC filed a notice of appeal. The writ of

REMEDIAL LAW
CIVIL PROCEDURE
partial execution was served against the BPI. BPI then A: An action for recovery of money arising from contract,
filed several motions to recall the issued writ, arguing that whether express or implied.
it was null and void because BPI had never been notified
-NOTE: Obligations for money can come from 5
of the proceedings.
sources. E.g. from law, contract, quasi-contract,
ISSUE: WON the decision cannot be executed against
delict, quasi-delict. But here, the action is one
BPI, it being not impleaded in main case arising from CONTRACT, express or implied
HELD: No, the decision can be executed against BPI. This
Court has declared in a number of decisions that a ―When the action is for recovery of money‖
transferee pendente lite stands in exactly the same
- This section only contemplates action for
position as its predecessor-in-interest, the original
recovery of money NOT PROPERTY. PERA
defendant, and is bound by the proceedings had in LANG
the case before the property was transferred to it. It is ―arising from CONTRACT, express or implied‖
a proper but not an indispensable party as it would in any
event be bound by the judgment against his predecessor. - Jurisprudence provides that those arising from
This would follow even if it is not formally included as a law and those arising from quasi-contract are
considered implied contract.
defendant through an amendment of the complaint.
- J. Roberto-concepcion, in Maclan v. Garcia (G.R.
COMMENT: This is precisely because of the effects of res No. L-7622, May 27, 1955), when the rule says
judicata, sec 47(b), rule 39: that the judgement is ―contract, express or implied‖, it should not be
conclusive not only upon the parties but also upon their taken in its strict civil law sense, but it should be
successor in interest by title subsequent to the taken in its common law sense since its origin is
commencement of the action common law. And under common law, implied
contracts include those arising from law and
11
quasi-contract.
e.g. Warranty, as if kasama sa contract.
ESCOLIN: However, I have a different opinion in cases of
properties covered by the Torrens title - Ang hindi kasali dito, delict and quasi-delict, di na
SITUATION: The property which covered by the torrens yan contract talaga.
title was the subject of a case. Hindi nagpaannotate sa ―and the defendant dies before entry of final judgment‖
registry of deeds ung may-ari ng lis pendens-pag there is
a case involving real property, paannotate mo na subject - Death occurred before the entry of final judgment
to civil case, so that the buyer would also be bound. - Remember, ang namatay dito ay defendant, kung
Subsequently, it was transferred pendete lite. So when the ang plaintiff ang namatay ibang usapan na.
purchaser bought the property, malinis ung titulo, walang - This section contemplates a defendant who dies
nakaannotate na lien. Natalo ung defendant. pendente lite. And not death of a plaintiff. If the
plaintiff is the one who died, this is not applicable.
ISSUE: Will the transferee be bound by the judgement of ―it shall not be dismissed but shall instead be allowed
the court? to continue until entry of final judgment‖
HELD: NO. If the property is covered by the torrens title,
and you are a purchaser in good faith and for value, you - Under the present rule, the action shall not be
are protected by the law. Although the transfer of property dismissed.
occurred pendente lite, the rule under rule 39 sec. 47(b) ―A favorable judgment obtained by the plaintiff therein
cannot be higher than a substantive right. If you are a shall be enforced in the manner especially provided in
buyer in good faith and for value, you are protected under these Rules for prosecuting claims against the estate of
the torrens system of registration. So this is now a case of a deceased person.‖
substantive law v. procedure law.
- Execution could nolonger be enforced by the
ACTION AND CONTRACTUAL MONEY CLAIMS court which rendered the money judgment.
- Rather, the judgement may only be prosecuted in
Section 20. Action and contractual money the manner especially provided in these Rules for
claims. — When the action is for recovery of money prosecuting claims against the estate of a
arising from CONTRACT, express or implied, and the deceased person.
defendant dies before entry of final judgment in the
court in which the action was pending at the time of such 11
2. ID.; ID.; ID.; CLAIM FOR NECESSARY EXPENSES AS ARISING FROM
death, it shall not be dismissed but shall instead be IMPLIED CONTRACT; TO BE FILED IN SETTLEMENT OF DOCUMENT’S
allowed to continue until entry of final judgment. A ESTATE. — Plaintiff’s contention that claim for repairs should not have
favorable judgment obtained by the plaintiff therein shall been filed in the proceedings for the settlement of the estate of the
be enforced in the manner especially provided in these decedent since only money claims arising from contracts expenses or
Rules for prosecuting claims against the estate of a implied are enforceable in said proceedings is untenable because said
deceased person. (21a) obligation arises from Law. Plaintiff’s argument seemingly, stems from
misconception of the nature of "implied contracts" as the term is used
in the provision of Section 5 of Rule 87 of the Rules of Court.
Q: What is the nature of the action comtemplated in this
Obligations arising ex lege are in the common law system merged into
section? the category of obligations imposed by law and all are denominated
implied contracts.

REMEDIAL LAW
CIVIL PROCEDURE
NOTE: dati ang word use ay ―Pauper‖
NOTE: Sec. 20 must be read in relation to our study in Illustrative case: who is an indigent.
jurisdiction.
Acar v. Rosal, G.R. No. L-21707, March 18, 1967
- As we said, jurisdiction is the power of the court
or tribunal to resolve a controversy, AND to FACTS: A suit was filed in the Court of First Instance of
carry out its judgement into effect Negros Oriental by ten persons for their own behalf and
 To carry judgement into effect means that it that of 9,000 other farm laborers working off and on in
is also the same court which rendered the sugar cane plantations. Plaintiffs asked that the
judgment which has the authority to enforce aforementioned court authorize them to sue as pauper
the judgment, (pero may proviso na ngayon) litigants. The Court of First Instance denied the same upon
unless otherwise provided by law. This the ground that the plaintiffs have regular employment and
section is one of the example. sources of income and, thus, can not be classified as poor
or paupers. In denying petitioners' motion to litigate as
INDIGENT PARTY paupers, respondent Judge adopted the definition at
"pauper" in Black's Law Dictionary (at p. 1284) as "a
Section 21. Indigent party. — A party may be person so poor that he must be supported at public
authorized to litigate his action, claim or defense as an expense".
indigent if the court, upon an ex parte application and
ISSUE: WON the petitioners in this case can be
hearing, is satisfied that the party is one who has no
money or property sufficient and available for food, considered as paupers(now indigent) despite their
shelter and basic necessities for himself and his employment and regular source of income.
family. HELD: Yes. The interpretation of the lower court does not
fit with the purpose of the rules on suits in forma pauperis
and the provision of the Constitution, in the Bill of Rights,
Such authority shall include an exemption from payment of that: "Free access to the courts shall not be denied to any
docket and other lawful fees, and of transcripts of person by reason of poverty." As applied to statutes or
stenographic notes which the court may order to be provisions on the right to sue in forma pauperis, the term
furnished him. The amount of the docket and other lawful has a broader meaning. It suffices that plaintiff is
fees which the indigent was exempted from paying shall indigent though not a public charge. And the difference
be a lien on any judgment rendered in the case between "paupers" and "indigent" persons is that the latter
favorable to the indigent, unless the court otherwise are "persons who have no property or source of income
provides. sufficient for their support aside from their own labor,
though self-supporting when able to work and in
employment".
Any adverse party may contest the grant of such authority COMMENT: In other words, if your source of income is
at any time before judgment is rendered by the trial court. only your labor, then you are considered as indigent.
If the court should determine after hearing that the party Because you have no property or source of income
declared as an indigent is in fact a person with sufficient sufficient for support than your own labor. Kung may sari-
income or property, the proper docket and other lawful sari store ka, di ka indigent.
fees shall be assessed and collected by the clerk of court.
If payment is not made within the time fixed by the court, Pauper Indigent
execution shall issue or the payment thereof, without
prejudice to such other sanctions as the court may a person so poor that he persons who have no
impose. (22a) must be supported at public property or source of
expense income sufficient for their
- Upon an exparte application and hearing support aside from their
- Exemption from payment of docket and other own labor, though self-
lawful fees, and of transcripts of stenographic supporting when able to
notes which the court may order to be furnished work and in employment
him.
Q: Who is an indigent? Section 22. Notice to the Solicitor General. — In

A: one who has no money or property sufficient and any action involving the validity of any treaty, law,
available for food, shelter and basic necessities for himself ordinance, executive order, presidential decree, rules or
and his family. Persons who have no property or regulations, the court, in its discretion, may require the
source of income sufficient for their support aside appearance of the Solicitor General who may be heard in
from their own labor, though self-supporting when person or a representative duly designated by him. (23a)
able to work and in employment". (Acar v. Rosal)

REMEDIAL LAW
CIVIL PROCEDURE
RULE 4 VENUE OF ACTIONS
ACTION TO ANNUL REAL ESTATE MORTGAGE
EXTRAJUDICIAL FORECLOSURE SALE IS A REAL
VENUE – place where the action must be instituted and
ACTION SINCE ONCE THE SALE IS ANNULED, THE
tried;
TITLE OVER THE REAL PROPERTY IS REVERTED TO
MORTGAGOR FROM THE HIGHEST BIDDER
If it is personal, the venue is deemed transitory, thus,
Illustrative case:
generally depends upon the residence of the parties. If it is
Fortune Motors v. CA, G. R. No. 76431 October 16,
real, the venue is local and thus, generally the venue is
the place where the property or any portion of the same is 1989
situated. FACTS: Private respondent Metropolitan Bank extended
various loans to petitioner Fortune Motors. Said loan was
REAL – founded on the privity of real property; affects title secured by a real estate mortgage on the Fortune building
to, or possession of real property or an interest therein; and lot in Makati, Rizal. For failure of the petitioner to pay
(e.g unlawful detainer, forcible entry, accion publiciana, the loans, the respondent bank initiated extrajudicial
accion reinvindicatoria, quieting of title or removal of a foreclosure proceedings. Mortgagee Bank was the highest
cloud on a title) Note however, that not every action bidder. Three days before the expiration of the redemption
involving real property is a real action because if it’s only period, petitioner Fortune Motors filed a complaint with
incidental to the subject matter of the suit, it is a personal RTC Manila for annulment of the extrajudicial foreclosure
action. (e.g action for damages to real property) sale alleging that the foreclosure was premature because
its obligation to the Bank was not yet due, the publication
PERSONAL – one that’s on privity of contract, not of the notice of sale was incomplete, there was no public
involving real property or interest therein auction, and the price for which the property was sold was
"shockingly low". Private respondent Bank filed a motion
TWO KINDS OF ACTION: to dismiss the complaint on the ground that the venue of
the action was improperly laid in Manila for the realty
1) Real action covered by the real estate mortgage is situated in Makati,
2) Personal action therefore the action to annul the foreclosure sale should
be filed in the Regional Trial Court of Makati.
VENUE DEPENDS UPON THE KIND OF ACTION ISSUE: whether petitioner's action for annulment of the
I. Venue in case of a real action real estate mortgage extrajudicial foreclosure sale of
Section 1. Venue of real actions. — Actions Fortune Building is a personal action or a real action for
affecting title to or possession of real property, or interest venue purposes.
therein, shall be commenced and tried in the proper court HELD: It is a real action. Since an extrajudicial
which has jurisdiction over the area wherein the real foreclosure of real property results in a conveyance of
property involved, or a portion thereof, is situated. the title of the property sold to the highest bidder at the
Forcible entry and detainer actions shall be commenced sale, an action to annul the foreclosure sale is
and tried in the municipal trial court of the municipality or necessarily an action affecting the title of the property
city wherein the real property involved, or a portion sold. It is therefore a real action which should be
thereof, is situated. commenced and tried in the province where the property
or part thereof lies.
Q: What are real actions?
A: Real actions are actions affecting title to or Q: Is an action to annul a real estate mortgage (e.g. on the
possession of real property, or interest therein. ground of fraud) involving a real property a real action?
A: If the action to annul the real estate mortgage is made
Q: What is the venue in real actions? before a foreclosure sale, the action is a personal action
A: In the proper court which has jurisdiction over the since at that point in there, there is no issue yet as to the
area wherein the real property involved, or a portion title to or possession of real property, or any interest
thereof, is situated. therein.
NOTE: The same rules on venue are applicable in forcible SITUATION: debtor-mortgagor filed an action to annul the
entry and detainer actions. Forcible entry and unlawful REM on the ground of fraud. She’s resident in AC while
detainer actions are real actions since forcible entry and defendant creditor is resident of manila. Debtor-mortgagor
unlawful detainer cases are actions affecting prossession filed in Manila for the annulment of REM. Defendant
of real property creditor filed a motion to dismiss contending that the
Forcible and Unlawful Detainer – action must be filed action must be in AC where the property is located.
where the property is situated although the jurisdiction in ISSUE: WON the action to annul REM must be filed in AC
such case is in MTC.

REMEDIAL LAW
CIVIL PROCEDURE
A: NO. there’s no question of title or possession hence ISSUE: Whether the action for damages and the fixing of
PERSONAL action. Thus, the action may be filed in the period of lease is a personal or real action.
Manila HELD: The action is a real action. While it may be that the
instant complaint does not explicitly pray for recovery of
Where the annulment is filed after the foreclosure suit, possession, such is the necessary consequence
where public auction already happened, it is a REAL thereof. The instant action therefore does not operate to
ACTION. If the effect is reversion of title to or possession erode the fundamental and prime objective of the nature of
of real property, the action is real. the case which is to recover the one-half portion
repossessed by the lessor, herein petitioner. Indeed,
―title to or possession of real property, or interest where the ultimate purpose of an action involves title to or
therein‖ seeks recovery of possession, partition or condemnation
- The phrase ―or interest therein‖ must be of, or foreclosure of mortgage on, real property, 15 such
understood on the basis of ejusdem generis. In an action must be deemed a real action and must perforce
otherwords, it should of the same character and be commenced and tried in the province where the
nature of the enumeration, namely, title or property or any part thereof lies.
possession. COMMENT: The action is necessarily also for the purpose
CAVEAT: Thus, it DOES NOT necessarily mean that of securing the repossession of the ½ portion of the
when the contract involves a real property, that the action subject property earlier taken over the lessee, since the
is already a real action. As long as the issue does not effect of fixing the lease period over the ENTIRE property
involve title to or possession of real property, it is not a may also result in the repossession of the ½ property
real action. taken over. Therefore, the action is a real action.
- Thus, what is important here is the determination
whether there exists an issue of title or TIP: One must be able to determine whether the action is
possession.
real action or personal action for purposes of venue, but
before you determine that, you must have clear concept of
THE ACTION IS NECESSARILY ALSO FOR THE
Personal and Real action.
PURPOSE OF SECURING THE REPOSSESSION OF
THE ½ PORTION OF THE SUBJECT PROPERTY
PANDERANGA vs BUISSAN
EARLIER TAKEN OVER THE LESSEE, SINCE THE
EFFECT OF FIXING THE LEASE PERIOD OVER THE
ENTIRE PROPERTY MAY ALSO RESULT IN THE Personal Action and Real In Personam and In Rem
REPOSSESSION OF THE ½ PROPERTY TAKEN OVER. Action
THEREFORE, THE ACTION IS A REAL ACTION. Determines the venue The binding effect of a
decision the court may
render over a party,
Illustrative case:
whether impleaded or not
Paderangga v. Buissan, G.R. No. L-49475, September
28, 1993
FACTS: petitioner PADERANGA and private respondent H: Action affecting parties alone is an action in personam
ELUMBA INDUSTRIES COMPANY entered into an oral where judgment is binding upon properties impleaded.
contract of lease for the use of a commercial space within Action for damages and to fix period of lease is not
a building owned by petitioner in Ozamiz City. necessarily a personal action for a personal action may
PADERANGA subdivided the leased premises into two (2) not necessarily be action in personam and a real action
by constructing a partition wall in between. He then took not necessarily in rem.
possession of the other half, which repossession was said
to have been undertaken with the acquiescence of the THE FACT THAT PLAINTIFF IS SEEKING THAT A
local manager of ELUMBA, lthough private respondent DEED OF SALE OVER A REAL PROPERTY CLEARLY
maintains that this is not the case. Accordingly, Private SHOWS THAT THE PRIMARY OBJECTIVE AND
respondent instituted an action for damages which, at the NATURE OF THE ACTION IS TO RECOVER REAL
same time, prayed for the fixing of the period of lease at PROPERTY WHICH IN THE FINAL ANALYSIS
five (5) years, before the then court of First Instance of REVOLVES ITSELF IN THE ISSUE OF OWNERSHIP
Zamboanga del Norte based in Dipolog City. Petitioner, a Illustrative case:
resident of Ozamiz City, moved for its dismissal
contending that the action was a real action which should
have been filed with the Court of First Instance of Misamis
Occidental stationed in Ozamiz City where the property in action, venue is laid in the court having jurisdiction over the territory in
12
question was situated. which the property lies.
ELUMBA counters that the present action is chiefly for damages arising
from an alleged breach in the lease contract; hence, the issue of
12
PADERANGA argues that inasmuch as ELUMBA seeks to recover recovery of possession is merely incidental. ELUMBA further argues
possession of the portion surrendered to him by the local manager of that the action is one in personam and not in rem. Therefore venue
private respondent, as well as to fix the period of lease at five (5) years, may be laid in the place where plaintiff or defendant resides at the
Dipolog City could not be the proper venue of the action. it being a real option of plaintiff.

REMEDIAL LAW
CIVIL PROCEDURE
TORRES v. TUASON, G.R. No. L-19668, October 22, Lizares v. Caluag, G.R. No. L-17699, March 30, 1962
1964 FACTS: This case involves a sale in installment basis of a
FACTS: In this case, Dominga Torres filed an action in the lot located in Bacolod City. Respondent Cacnio bought
CFI of Manila praying that the defendant JM Tuason and from petitioner, on installment, Lot 4, Block 1 of the
company be ordered to execute a deed of sale over a Sinkang Subdivision in Bacolod City, making therefor a
parcel of land in situated in Matalahib, Tatalon and downpayment, the balance to be paid in installments.
Masambong, Quezon City. (kasi magkakampi Araneta and Petitioner demanded 7000 pesos as arrears. Accordingly,
Tuason on one hand, and Torres and Deudor on the Respondent Cacnio issued a check in the amount of 5000
other.) It was alleged that it was the Deudor which only in favor of said petitioner since according to
subdivided the land. On of the buyers from Deudor is the respondent, he has already paid a downpayment.
predecessor of interest of Dominga Torres. Torres claimed However, petitioner Lizares returned said check and
that he bought it from the original buyers from Deudor. "refused the tender of payment" aforementioned.
Then Dominga assumed the obligation. Upon the Accordingly, Flaviano Cacnio instituted a Civil Case before
completion of payment, Dominga now claims to be the the CFI of Rizal praying, among others, that petitioner be
owner and wants that a deed be executed and certificate ordered "to accept the payment being made" by him
of title be issued in her name. It appeared that there was a (Cacnio). Petitioner moved to dismiss the complaint upon
family feud between the Tuason and Deudor as to who the ground that "venue is improperly laid," for the action
owned the property. They settled the case wherein the affects the title to or possession of real property located in
Deudor were paid by the Tuason for the property. Thus, Bacolod City, which was the subject matter of a contract,
Dominga torres now sued JM Tuason and co. claiming between petitioner and Cacnio, made in said City.
that she acquired the property from Eustaquio Alquiros ISSUE: WON the action should have been filed in Bacolod
whose predecessor, the Deudor had previously filed an where the property is situated since the action is a real
action against the same defendant over the same land action.
and defendant in the said case had settled the case by HELD: Yes, the action in this case being a real action.
paying to deudor. The plaintiff Domingo Torres now flied Although the immediate remedy sought by Cacnio is to
an action for specific performance to compel the compel petitioner to accept the tender of payment
defendant to execute a deed of sale of real property, and allegedly made by the former, it is obvious that this
considered the payment by Alquiros as partial payment for relief is merely the first step to establish Cacnio's title
the lot, and that the certificate of title be issued in the to the real property adverted to above. Moreover,
name of the plaintiff Torres. Sustaining a motion to dismiss Cacnio's complaint is a means resorted to by him in order
of defendant J. M. Tuason & Co., Inc., the Court of First that he could retain the possession of said property. In
Instance of Manila, ordered the dismissal of the complaint short, venue in the main case was improperly laid and the
for improper venue stating that it should have been filed in Court of First Instance of Rizal, Quezon City Branch,
the propery court which has jurisdiction over the area should have granted the motion to dismiss.
where the property is located, namely, Quizon city. COMMENT: What is involved in this case is a contract to
ISSUE: Whether the action for specific performance in this sell, a contract of conditional sale since the payment was
case is a personal or real action. not yet complete.
HELD: The action in this case is a real action.
Accordingly, it should have been filed in the CFI in Quizon CAVEAT: Illustrative case:
City. Although appellant‘s complaint is entitled to be Hernandez v. DBP, G.R. No. L-31095, June 18, 1976
one for specific performance, yet the fact that she FACTS: Petitioner Hernandez was an employee of private
asked that a deed of sale of a parcel of land situated in respondent Development Bank of the Philippines (DBP)
Quezon City be issued in her favor and that a transfer for twenty-one (21) years until his retirement. Prior his
certificate of title covering said land be issued to her retirement, the private respondent awarded to the
shows that the primary objective and nature of the petitioner a lot in West Avenue, Quezon Cit. After his
action is to recover the parcel of land itself because to retirement, he returned to his home province, batangas.
execute in favor of appellant the conveyance Pursuant to an award, he sent to DBP a Check No. 77089
requested there is need to make a finding that he is to cover the cash and full payment of the purchase price of
the owner of the land which in the last analysis the lot and house awarded to him. However, DBP returned
resolves itself into an issue of ownership. to the petitioner ,the aforementioned check, informing him
COMMENT: Prior to the payment, you only have what is that DB had cancelled the award on the ground that
known as a conditional sale or a ―contract to sell‖ or Petitioner is can no longer avail thereof since he was no
promise to sell. Hindi pa yan sale, title is still with seller. longer an employee. Accordingly, the petitioner filed a
After payment of the purchase price, that is the time that complaint in the Court of First Instance of Batangas
the seller will now execute the deed of absolute sale. against the private respondent seeking the annulment of
the cancellation of the award of the lot and house in his
IF THE ULTIMATE OBJECTIVE OF THE ACTION IS TO favor and the restoration of all his rights thereto. DBP filed
OBTAIN TITLE TO OR POSSESSION OF REAL a motion to dismiss the complaint on the ground of
PROPERTY, OR INTEREST THEREIN, THE ACTION IS improper venue, contending that since the petitioner's
A REAL ACTION action affects the title to a house and lot situated in
Illustrative case: Quezon City, the same should have been commenced in

REMEDIAL LAW
CIVIL PROCEDURE
the Court of First Instance of Quezon City where the real A: An action other than a real action. In other words, one
property is located and not in the Court of First Instance of which does not involve title to or possession of real
Batangas where petitioner resides. The respondent Court property, or interest therein.
sustained the motion to dismiss filed by private respondent
on the ground of improper venue. Q: What is the venue in personal action?
ISSUE: Whether the action is correctly filed in Batangas, it
being a personal action A: If defendant is a resident of the PH, the venue is
HELD: Yes, the action is a personal action. A close determined by the residence of plaintiff or defendant, at
scrutiny of the essence of the petitioner's complaint in the the election of the plaintiff. On the other hand, if the
court a quo would readily show that he seeks the defendant is a non-resident, the venue is where the
annulment of the cancellation of the award of the defendant non-resident may be found.
Quezon City lot and house in his favor originally given
―defendant who is a resident of PH‖
him by respondent, in pursuance of his contention that
he had acquired a vested right to the award which cannot - the venue is determined by the residence of
be unilaterally cancelled by respondent without his plaintiff/principal plaintiffs or residence of
consent. The Court agrees that petitioner's action is not a defendantprinicpal defendants, at the election of
real but a personal action. As correctly insisted by the plaintiff.
petitioner, his action is one to declare null and void the
cancellation of the lot and house in his favor which Q: What are the two kinds of ―non-resident defendant‖?
does not involve title and ownership over said A: i) non-resident defendant who may be found in the Phil,
properties but seeks to compel respondent to and ii) non-resident defendant not found in the Phil.
recognize that the award is a valid and subsisting one
which it cannot arbitrarily and unilaterally cancel and ―Non-resident defendant who may be found in the
accordingly to accept the proffered payment in full which it Phil.‖
had rejected and returned to petitioner.Such an action is a - Transient. Nagbakasyon lang, pero hindi taga
personal action which may be properly brought by dito.
petitioner in his residence. - ―where he may be found‖ indicates that he is in
the Philippines.
Q: What is the venue in case the defendant is a non-
COMPARISON:
resident who is found in the Phil. in case of personal
LIZARES vs CALUAG HERNANDEZ vs DBP
action?
- - In this case, there was -a In this case, there was no A: i) Where the non-resident defendant may be found; OR
contract to sell which was issue as to the title to or ii) Where the plaintiff resides, at the election of plaintiff.
already partially executed. possession of the real
The respondent has already property or interest Section 3. Venue of actions against
paid a downpayment. therein. In fact, petitioner nonresidents. — If any of the defendants does not reside
- - While apparently the action hernandez himself and is not found in the Philippines, and the action affects
is to compel to accept the recognized that he was the personal status of the plaintiff, or any property of
check, it is a first step to not yet the owner of the said defendant located in the Philippines, the action may
establish the ownership. property but merely be commenced and tried in the court of the place where
invokes that he was an
the plaintiff resides, or where the property or any portion
awaradee. At that point in
thereof is situated or found.
time, there was no
question yet of title over a
real property. In this ―Non-resident defendant who is not found in the Phil.‖
case, Hernandez admits Q: May an action be filed against a non-resident
that DBP is the owner of defendant not found in the Phil.?
the property, but alleges A: It depends. If the action is an action personam, an
that it was illegal on the action cannot be filed against such a defendant since the
part of DBP to unilaterally court cannot acquire jurisdiction over the person of such
cancel the award defendant.
CAVEAT: However, if the action is an accion in rem or
II. Venue in case of a personal action accion quasi-in rem, action against a defendant non-
Section 2. Venue of personal actions. — All other resident who cannot be found in Phil can prosper.
actions may be commenced and tried where the plaintiff or - If the action involves the status of the plaintiff
any of the principal plaintiffs resides, or where the against a non-resident who is not found in the
defendant or any of the principal defendants resides, or in phil., in such case, the action will prosper
the case of a non-resident defendant where he may be because the action in this case is a accion in rem
found, at the election of the plaintiff. (the res here is the status)
Q: What if may asawa ka, non-resident not found
Q: What is a personal action? in the phil. iniwanan ka, nagfile ka ngayon ng
action to declare marriage void ab initio on the

REMEDIAL LAW
CIVIL PROCEDURE
ground of psychological incapacity, in such case, Head Nurse and as a result of the said incident, said
where should the action be filed? petitioner complained to the Chief of the Hospital, Dr.
A: Where the plaintiff resides. Teodoro P. Motus, in writing. The other petitioner,
Q: What if it involves the property of the non- Herminia Jayme, who was one of those who were present
resident defendant who is not found in the phil. at the time of the incident also sent a letter. As a result
located in the Philippines, What is the venue? thereof, private respondent was advised to explain in
A: Where the property, or portion thereof, is writing by the Chief of the Hospital, but private respondent
located. instead of explaining only her side of the incident also
complained against the petitioners. An action for
MEANING OF THE TERM ―RESIDES‖; TO BE damages was filed by private respondent Beverly Tan
UNDERSTOOD IN POPULAR SENSE; PERSONAL, against herein petitioners Patria Esuerte and Herminia
ACTUAL, PHYSICAL HABITATION, NOT DOMICILE. Jayme with the Court of First Instance (now Regional Trial
Illustrative case: Court) of Cebu (domicile of Respondent Beverly Tan).
RAYMOND v. CA, G.R. No. 80380, September 28, 1988 Esuerte and Jayme filed a motion to dismiss the complaint
FACTS: A complaint for damages was filed with the on the ground of improper venue. The trial court denied
Regional Trial Court of Iloilo by Santiago Bitera against the motion to dismiss.
Carlos Bell Raymond and Agustin Alba. All of whom ISSUE: Whether the action should have been filed in
parties are employees of UPSUMCO compound located in Bacolod or Cebu City
Bais City, Negros Oriental. The respondents moved to Held: In Bacolod. "Resides" in the rules on venue on
dismiss the action on the ground of improper venue. The personal actions means the place of abode, whether
respondents argued that although Bitera's complaint gives permanent or temporary, of the plaintiff or defendants as
his address as Iloilo City (domicile), he is, and for many distinguished from "domicile" which denotes a fixed
years has been actually residing at the so-called permanent residence. Venue of personal actions should
UPSUMCO Compound, Bais City, he being the officer-in- be at the place of abode or place where plaintiffs
charge of the business firm known as UPSUMCO. The actually reside, not in domicile or legal
Trial Court however denied their motion to dismiss. residence.There is no question that private respondent as
ISSUE: Whether the action should have been filed in Iloilo, plaintiff in the Civil Case is a legal resident of Cebu
or in Bais City City.However, it cannot also be denied that at the time of
HELD: In Bais City. The term "resides" should be viewed her filing of the complaint against petitioners, she was a
or understood in its popular sense, meaning the personal, temporary resident of Bacolod City. The private
actual or physical habitation of a person, actual respondents were all residents of Bacolod City at the time
residence or place of abode. It signifies physical presence of the bringing of the action. What is of paramount
in a place and actual stay thereat. In this popular sense, importance is where he actually resided at the time he
the term means merely residence, that is, personal brought the action, to comply substantially with the
residence, not legal residence or domicile. Residence requirements of Sec. 2(b) of Rule 4, Rules of Court, on
simply requires bodily presence as an inhabitant in a given venue of personal actions
place, while domicile requires bodily presence in that
place and also an intention to make it one's domicile. NOTE: The rules on venue for personal actions are
COMMENT: In common parlance, your residence is the generally made to depend on the residence of the parties.
place where you go home after work. The residence referred to is the place where the plaintiff
actually resides at the time where the action is instituted,
PERSONAL ACTION not his permanent home, domicile, or legal residence. The
The matter of venue in personal action is where the residence of a person is his personal, actual, physical
plaintiff resides or defendant resides. Resides means place of habitation or abode, whether permanent or
personal, actual habitation in the particular place, intention temporary, provided that in cases of temporary, the
to stay as distinguished from domicile which is the party should have reside with continuity and
consistency at that particular time. There should have
permanent home, where he has animus revertendi =
been an intention to be there at that time. Intention is
intention to return. (RAYMOND vs CA)
manifested by continuity albeit temporary.
e.g ESCOLIN studied and lived in ROXAS CITY 
MERE SOJOURNERS ARE NOT RESIDENTS
domicile  can run Congressman :D because he has
Illustrative case:
animus revertendi. ESCOLIN now a lawyer, practicing in
Bejer v. CA, G.R. No. 79404, January 27, 1989
metro manila  file in courts of Metro Manila  his actual
(katarungang pambaranggay case)
residence now.
FACTS: The petitioner came from Batangas. He had
some apartments in Pandacan. Occasionally, the parents
ESUERTE vs CA, G.R. No. L-53485, February 6, 1991
would stay in Pandacan since their children is studying in
FACTS: The claim for damages arose when private
Manila. The other apartment which they owned, they filed
respondent Ma. Beverly Tan, a Junior Resident Physician
an unlawful detainer.
of Corazon Locsin-Montelibano Memorial Hospital,
ISSUE: WON the parents who stay in Manila occasionally
Bacolod City, without any justifiable reason shouted at,
are considered residence
humiliated and insulted the petitioner, Patria Esuerte,

REMEDIAL LAW
CIVIL PROCEDURE
HELD: NO, they are merely sojourners. Petitioners cannot be benefited or entitled to the avails of the present suit. It
even be accurately categorized as temporary residents but is undisputed too that petitioners Daniel Rubio, Orlando G.
as mere periodic and brief sojourners who only used to Reslin, and Jose G. Reslin, all from Ilocos Norte, were
come to visit and attend to their children's needs while in included as co-plaintiffs in the amended complaint as
school. From all the foregoing disquisitions, therefore, we Irene's new designated trustees. As trustees, they can
cannot confer in the existence of the requisite residential only serve as mere representatives of Irene. They may
13
or, for purposes of the issue involved, the legal nexus be accorded, by virtue of Sec. 3 of Rule 3, the right to
between the petitioners and the Pandacan barangay prosecute a suit, but only on behalf of the beneficiary who
involved. must be included in the title of the case and shall be
deemed to be the real party-in-interest. In the final
―PRINCIPAL PLAINTIFFS/ PRINCIPAL DEFENDANTS‖; analysis, the residences of Irene's co-plaintiffs cannot be
REAL PARTY IN INTEREST; NOT MERE NOMINAL made the basis in determining the venue of the subject
PARTY; RESIDENCE THEREOF, BASIS OF VENUE suit.
- Applied when there are two or more COMMENT: When there is more than one plaintiff(or
defendants or plaintiffs, defendant) in a personal action case, the residences of the
principal parties would be the basis for determining the
TRUSTEE, MERELY A NOMINAL PARTY; ACTING IN proper venue. When you say principal, that means that a
REPRESENTATION OF BENEFICIARY; BENEFICIARY party who is a real party in interest. They are merely
THE REAL PARTY IN INTEREST trustees who are merely acting in a representative
Illustrative case: capacity of the beneficiary.
MARCOS-ARANETA v. CA, G.R. No. 154096 DOMESTIC CORPORATIONS

August 22, 2008 IN PERSONAL ACTIONS INVOLVING DOMESTIC
CORPORATIONS, for the purpose of venue, what is
FACTS: Ambassador Roberto S. Benedicto, now
controlling is the principal place of the corporation.
deceased, and his business associates (Benedicto Group)
NOT the branch office or Branch place of business.
organized Far East Managers and Investors, Inc. (FEMII)
(Sy v. Tyson Enterprises, G.R. No. L-56763 , December
and Universal Equity Corporation (UEC), respectively.
15, 1982)
Both corporations were alleged organized pursuant to a
contract whereby Benedicto, as trustor, placed in his name
NON-RESIDENT CORPORATION
and in the name of his associates, as trustees, the shares
Q: May a non-resident plaintiff sue in our courts?
of stocks of FEMII and UEC with the obligation to hold
A: Yes.
those shares and their fruits in trust and for the benefit of
NOTE: However, if the non-resident plaintiff who wants to
Irene. Several years after, Irene, through her trustee-
sue in the Philippines is a juridical entity, the corporation
husband, Gregorio Ma. Araneta III, demanded the
must be, if doing business here, with a license.
reconveyance of said stockholdings, but the Benedicto
Group refused to oblige. Irene thereupon instituted before
LICENSE, NECESSARY ONLY IF THE NON-
the RTC Batac, Ilocos Norte two similar complaints for
RESIDENT PLAINTIFF CORP IS DOING BUSINESS
conveyance of shares of stock, accounting and
IN PHIL
receivership against the Benedicto Group.Respondents
Q: Is it necessary for a juridical entity to secure a
filed a Motion to Dismiss on the ground that venue was
license in order to sue?
improperly laid. The lower court dismissed the case since
A: No, if it is not doing business in the Philippines, it
Irene nor the respondents were residents of Ilocos Norte.
can have acces to our courts under the isolated
Because of the dismissal, Irene filed an amended
transcation rule, the only condition there is that it
complaint impleading co-plaintiffs who are actually
must prove its juridical existence. On the other hand,
residing in Ilocos Norte and who are her trustees.
if it is doing business without a license, he cannot be
ISSUE: whether or not venue had properly been laid sue as plaintiff before our courts, the only exception in
HELD: No. When there is more than one plaintiff in a such case is the principle of estoppel
personal action case, the residences of the principal
parties should be the basis for determining proper Q: May a non-resident foreign corporation file an
venue. The word ―principal‖ has been added in order action in courts as plaintiff?
to prevent the plaintiff from choosing the residence of A: IT DEPENDS. It cannot file if it is doing business
a minor plaintiff or defendant as the venue. Eliminate
the qualifying term "principal" and the purpose of the Rule 13
Section 3. Representatives as parties. — Where the action is
would be defeated where a nominal or formal party is allowed to be prosecuted and defended by a representative or
impleaded in the action since the latter would not have the someone acting in a fiduciary capacity, the beneficiary shall be included
degree of interest in the subject of the action which would in the title of the case and shall be deemed to be the real property in
warrant and entail the desirably active participation interest. A representative may be a trustee of an expert trust, a
expected of litigants in a case. There can be no serious guardian, an executor or administrator, or a party authorized by law or
dispute that the real party-in-interest plaintiff is Irene. As these Rules. An agent acting in his own name and for the benefit of an
undisclosed principal may sue or be sued without joining the principal
self-styled beneficiary of the disputed trust, she stands to
except when the contract involves things belonging to the principal.

REMEDIAL LAW
CIVIL PROCEDURE
without a license. If not doing business, he can under - Which ever action comes first, dun yan
the isolated transaction rule. magcoconsolidate. The general rule on
consolidation, usually ang absorbing case ay
Q: Can a juridical entity doing business without a criminal. Pero sa libel, kung ano ang naunang
license be a defendant? case ang magaabsorb. Kung ang naunang case
A: Yes ay civil, kung san ung civil case dun ang criminal.
- The venue in this case is where the offended
party/plaintiff actually resides OR where the
Q: In such case, can it file a counterclaim?
libelous article is printed and first published
A: No, because he is doing business without license. - When the plaintiff is a public officer- where he is
holding office OR where the libelous material is
Q: Supposed the plaintiff is a non-resident juridical first published.
entity but is allowed to sue here under the isolated o ―first published‖-where the article is first
transcation rule. Where is the venue of the personal made known.
action? (b) Where the parties have validly agreed in writing
A: The venue in such case is a the residence of the BEFORE the filing of the action on the EXCLUSIVE
defendant. The alternative venue available is not VENUE THEREOF.
available in this case since apparently the plaintiff is a - This rule may is applicable to both personal and
non-resident juridical entity real action.
Q: How about in real action?  e.g. in real action, if there is a stipulation in
A: In the proper which has jurisdiction over the area the contract on venue which is exclusive,
that should be followed even if it is not the
where the property, or portion thereof, is located.
place where the property is situated.
WHEN RULE NOT APPLICABLE
THE STIPULATION MUST PROVIDED AN EXCLUSIVE
VENUE; NOT MERELY OPTIONAL OR PERMISSIVE,
Section 4. When Rule not applicable. — This
OPTIONAL VENUE IS NOT A WAIVER OF RULES
Rule shall not apply.
Illustrative case:
(a) In those cases where a specific rule or law Polytrade v. Blanco, G.R. No. L-27033, October 31,
provides otherwise; or 1969
FACTS: Suit before the CFI of Bulacan on four causes of
(b) Where the parties have validly agreed in writing action to recover the purchase price of rawhide delivered
before the filing of the action on the exclusive venue by plaintiff to defendant. Plaintiff corporation has its
thereof. (3a, 5a) principal office and place of business in Makati, Rizal.
Defendant is a resident of Meycauayan, Bulacan.
Sec. 4. When Rules under sec. 1, 2, and 3 are not
Defendant moved to dismiss upon the ground of improper
applicable.
venue. He claims that by contract suit may only be lodged
This Rule shall not apply: in the courts of Manila. The Bulacan court overruled him.
According to defendant, plaintiff and defendant, by written
(a) In those cases where a specific rule or law provides contracts covering the four causes of action, stipulated
otherwise; or that: "The parties agree to sue and be sued in the Courts
eg. Actions for damages arising from libel, whether a of Manila.‖ Defendant says that because of such covenant
criminal actions has been instituted or not, as provided he can only be sued in the courts of Manila.
14
for in art. 360 of RPC. ISSUE: WON Manila is the exclusive venue.
HELD: NO. "The parties agree to sue and be sued in the
14
Courts of Manila," does not preclude the filing of suits in
Xxx The criminal and civil action for damages in cases of written the residence of plaintiff or defendant. The plain meaning
defamations as provided for in this chapter, shall be filed
is that the parties merely consented to be sued in Manila.
simultaneously or separately with the court of first instance of the
province or city where the libelous article is printed and first published Qualifying or restrictive words which would indicate
or where any of the offended parties actually resides at the time of the that Manila and Manila alone is the venue are totally
commission of the offense: Provided, however, That where one of the absent therefrom. We cannot read into that clause that
offended parties is a public officer whose office is in the City of Manila plaintiff and defendant bound themselves to file suits with
at the time of the commission of the offense, the action shall be filed in respect to the last two transactions in question only or
the Court of First Instance of the City of Manila, or of the city or exclusively in Manila. For, that agreement did not
province where the libelous article is printed and first published, and in
change or transfer venue. It simply is permissive. The
case such public officer does not hold office in the City of Manila, the
action shall be filed in the Court of First Instance of the province or city parties solely agreed to add the courts of Manila as
where he held office at the time of the commission of the offense or tribunals to which they may resort. They did not waive
where the libelous article is printed and first published and in case one
of the offended parties is a private individual, the action shall be filed in
the Court of First Instance of the province or city where he actually criminal action or civil action for damages is first filed, shall acquire
resides at the time of the commission of the offense or where the jurisdiction to the exclusion of other courts: And, provided, finally, That
libelous matter is printed and first published: Provided, further, That this amendment shall not apply to cases of written defamations, the
the civil action shall be filed in the same court where the criminal action civil and/or criminal actions which have been filed in court at the time
is filed and vice versa: Provided, furthermore, That the court where the of the effectivity of this law. xxx

REMEDIAL LAW
CIVIL PROCEDURE
their right to pursue remedy in the courts specifically ISSUE: WON Quezon City is the exclusive venue because
mentioned in Section 2(b) of Rule 4. of the word ―shall‖
HELD: NO. Absent additional words and expressions
Capati v. Ocampo, G.R. No. L-28742, April 30, 1982 definitely and unmistakably denoting the parties'
FACTS: Plaintiff Virgilio Capati a resident of Bacolor, desire and intention that actions between them should
Pampanga, was the contractor of the Feati Bank for the be ventilated only at the place selected by them,
construction of its building in Iriga, Camarines Sur. Plaintiff Quezon City -- or other contractual provisions clearly
entered into a sub-contract with the defendant Dr. Jesus evincing the same desire and intention -- the stipulation
Ocampo, a resident of Naga City, whereby the should be construed, not as confining suits between the
latterundertook to construct the vault walls, exterior walls parties only to that one place, Quezon City, but as
and columns of the said Feati building. Claiming that allowing suits either in Quezon City or Tacloban City, at
defendant belatedly finished the construction in question, the option of the plaintiff
plaintiff filed in the Court of First Instance of Pampanga an COMMENT: In other words, it is not enough to use the
action for recovery of consequential damages. Defendant auxiliary word ―shall‖ to indicate an exclusive venue. By
filed a motion to dismiss the complaint on the ground that itself, the use thereof is not sufficient, there must be words
venue of action was improperly laid. The motion was such as ―exclusively‖, ―solely‖, ―limited to‖, ―only‖ or ―to the
premised on the stipulation printed at the back of the exclusion of‖.
contract which reads: ―That all actions arising out, or
relating to this contract may be instituted in the Court of RULES IN CONTRACTS OF ADHESION AS TO
First Instance of the City of Naga.‖ Plaintiff filed an EXCLUSIVITY OF VENUE
opposition to the motion, claiming that their agreement to - A contract of adhesion is a contract which is
hold the venue in the Court of First Instance of Naga City solely prepared, usually in printed form, by one
was merely optional to both contracting parties. In support party, and the acceptance thereof is offered to
thereof, plaintiff cited the use of the word "may" in relation the other. The only choice of the other party is to
accept or reject it. ―Take it or leave it‖(e.g.
with the institution of any action arising out of the contract.
Insurance, bus tickets)
ISSUE: WON Naga city is the exclusive venue
HELD: NO.It is well settled that the word "may" is merely
RULE: Contract of Adhesion regarding exclusivity of
permissive and operates to confer discretion upon a
venue are valid and enforceable. The GR in contract of
party. Under ordinary circumstances, the term "may be"
adhesion is valid because you can reject it. In the case
connotes possibility; it does not connote certainty. The
of Sweet Line,however, the stipulation in the contract of
stipulation as to venue in the contract in question is simply
adhesion is void and unenforceable since it is contrary to
permissive. By the said stipulation, the parties did not
public polic..
agree to file their suits solely and exclusively with the
Court of First Instance of Naga. They merely agreed to
Vitug: the only thing to remember is that if there’s
submit their disputes to the said court, without
ambiguity, it must be ruled against who created the
waiving their right to seek recourse in the court
contract. (Pil Tel v. Tecson)
specifically indicated in Section 2 (b), Rule 4 of the
Rules of Court.
CAVEAT: PUBLIC POLICY CONSIDERATION IN
COMMENT: In other words, the word ―shall‖ should have
CASES OF CONTRACT OF ADHESION IS NOT
been used as a qualifying or restrictive word. The
APPLICABLE WHEN THE PARTY IS IN THE POSITION
indication of exclusivity is ―shall‖ or ―must‖ as against
TO CARRY OUT LITIGATION IN THE VENUE AGREED
―may‖
UPON
Illustrative case:
STRICT RULE: USE OF WORD ―SHALL‖ PER SE
HOECHST v. Torres, G.R. No. L-44351 May 18,
INSUFFICINET, THERE MUST BE ADDITIONAL
1978-(NOTE: this is before Unimasters case)
WORDS DEFINITELY DENOTING EXCLUSIVITY; e.g
FACTS: Private respondent, Francisco Torres, filed with
―EXCLUSIVELY‖, ―SOLELY‖
CFI of Isabela a complaint alleging breach of a
Illustrative case:
distributorship contract on the part of petitioner, Hoechst
Unimasters v. CA, G.R. No. 119657. February 7, 1997 Philippines, Inc. Petitioner Hoechst filed a motion to
FACTS: Respondent KUBOTA and petitioner dismiss said complaint based on the ground that as the
UNIMASTERS entered into a "Dealership Agreement for contract provides that "In case of any litigation arising out
Sales and Services" of the former's products in Samar and of this agreement, the venue of any action shall be in the
Leyte Provinces. The contract contained, among others, competent courts of the Province of Rizal", venue has
that ―All suits arising out of this Agreement shall be filed been improperly laid in respondent court. Respondent
with / in the proper Courts of Quezon City," Thereafter, court denied the motion to dismiss. It is the position of
UNIMASTERS filed an action in the RTC of Tacloban City respondent judge that inasmuch as the contract was "a
against KUBOTA for damages for breach of contract, and prepared standard form by Hoescht and it only remains
injunction with prayer for temporary restraining order. upon party-distributor Torres to stamp his approval to the
KUBOTA filed two motions. One prayed for dismissal of whole contract. The word "shall" in the stipulation in
the case on the ground of improper venue question should be construed to be merely permissive and
not mandatory. It is argued that this construction serves

REMEDIAL LAW
CIVIL PROCEDURE
not only the exclusive interests of petitioner but also that of island shipping industry, it is not just and fair to bind
private respondent. passengers to the terms of the conditions printed at the
ISSUE: WON venue in the case filed in Isabela was back of the passage tickets, on which Condition No. 14 is
improperly laid since, as per contract, Rizal is the Printed in fine letters, and second, Condition No. 14
exclusive venue subverts the public policy on transfer of venue of
HELD: Yes, Rizal is the exclusive venue. A cursory inquiry proceedings of this nature, since the same will prejudice
into the respective economic conditions of the parties rights and interests of innumerable passengers in
herein as reflected in the record before Us does not different s of the country who, under Condition No. 14,
show that private respondent Francisco Torres is will have to file suits against petitioner only in the City
really in no position to carry on a litigation in the of Cebu. Condition No. 14, if enforced, will be subversive
Province of Rizal, because of his residence or place of of the public good or interest, since it will frustrate in
business being in Isabela province. The volume of meritorious cases, actions of passenger cants outside of
business covered by the Distributorship Agreement in Cebu City, thus placing petitioner company at a decided
question and to be handled by private respondent Torres advantage over said persons, who may have perfectly
is P700,000. The amount sought to he recovered by said legitimate claims against it. The said condition should,
respondent in his complaint totals more than P300,000. therefore, be declared void and unenforceable, as contrary
These circumstances preclude the need to apply to public policy — to make the courts accessible to all who
equitable considerations to the case of respondent may have need of their services. Considering the expense
Torres. It is quite obvious that his economic condition and trouble a passenger residing outside of Cebu City
does not warrant non-enforcement of the stipulation would incur to prosecute a claim in the City of Cebu, he
as to venue that he has agreed to. His pretension that would most probably decide not to file the action at all.
he had no alternative but to agree, even if true, does not The condition will thus defeat, instead of enhance, the
merit relief. Considering the nature and volume of the ends of justice.
business he has with petitioner, there is nothing COMMENT: Due to scarcity of ship, wala ka talagang
oppressive in his being required to litigate out of his choice, pilit ka.
province.We are convinced both parties agreed to the
venue in controversy with eyes wide open. CONTRACT OF ADHESION, NOT PER SE INVALID; AS
COMMENT: The contract is binding. Respondent Torres BINDING AS ORDINARY CONTRACT
cannot be said to be a poor man so at to apply to him the Pil Tel v. Tecson, G.R. No. 156966. May 7, 2004
public policy. FACTS: Respondent Delfino C. Tecson applied for six (6)
cellular phone subscriptions with petitioner Pilipino
STIPULATION OF ADHESION AS TO VENUE MAY BE Telephone Corporation (PILTEL) which applications were
CONSIDERED VOID AND UNENFORCEABLE IF each approved.Thereafter respondent filed with RTC of
CONTRARY TO PUBLIC POLICY Iligan City, Lanao Del Norte, a complaint against petitioner
Sweetlines v. Teves, G.R. No. L-37750 , May 19, for a Sum of Money and Damages. Petitioner moved for
1978 the dismissal of the complaint on the ground of improper
FACTS: Private respondents Atty. Leovigildo Tandog and venue, citing a common provision in the mobiline service
Rogelio Tiro bought tickets for voyage from petitioner, a agreements to the effect that –―Venue of all suits arising
shipping company transporting inter-island passengers from this Agreement or any other suit directly or indirectly
and cargoes, at Cagayan de Oro City. In view of a breach arising from the relationship between PILTEL and
of contract, private respondents sued petitioner for subscriber shall be in the proper courts of Makati, Metro
damages and for breach of contract of carriage before CFI Manila. Subscriber hereby expressly waives any other
of Misamis Oriental. Petitioner moved to dismiss the venues.‖ The RTC of Iligan City, Lanao del Norte, denied
complaint on the ground of improper venue. This motion petitioners motion to dismiss
was premised on the condition printed at the back of the ISSUE: WON Makati is the exclusive venue, the
tickets, i.e., Condition No. 14, which reads: ―It is hereby stipulation being valid.
agreed and understood that any and all actions arising out HELD: Yes, The contract herein involved is a contract
of the conditions and provisions of this ticket, irrespective of adhesion. But such an agreement is not per se
of where it is issued, shall be filed in the competent courts inefficacious. The rule instead is that, should there be
in the City of Cebu.‖ ambiguities in a contract of adhesion, such
ISSUE: WON Cebu is the exclusive venue pursuant to ambiguities are to be construed against the party that
Condition No. 14. prepared it. If, however, the stipulations are not obscure,
HELD: There is no question that there was a valid contract but are clear and leave no doubt on the intention of the
of carriage entered into by petitioner and private parties, the literal meaning of its stipulations must be held
respondents and that the passage tickets, upon which the controlling. A contract of adhesion is just as binding as
latter based their complaint, are the best evidence thereof. ordinary contracts. It is true that this Court has, on
All the essential elements of a valid contract, i.e., consent, occasion, struck down such contracts as being assailable
cause or consideration and object, are present. However, when the weaker party is left with no choice by the
condition No. 14 printed at the back of the passage tickets dominant bargaining party and is thus completely deprived
should be held as void and unenforceable for the following of an opportunity to bargain effectively. Nevertheless,
reasons first, under circumstances obligation in the inter- contracts of adhesion are not prohibited even as the

REMEDIAL LAW
CIVIL PROCEDURE
courts remain careful in scrutinizing the factual to the venue in a motion to dismiss, the venue cannot
circumstances underlying each case to determine the be truly said to have been improperly laid, as for all
respective claims of contending parties on their efficacy. In practical intents and purposes, the venue, though
the case at bar, respondent secured six (6) technically wrong, may be acceptable to the parties for
subscription contracts for cellular phones on various whose convenience the rules on venue had been devised.
dates. It would be difficult to assume that, during each The trial court cannot pre-empt the defendant's
of those times, respondent had no sufficient prerogative to object to the improper laying of the venue
opportunity to read and go over the terms and by motu proprio dismissing the case.
conditions embodied in the agreements. Respondent COMMENT: Venue is for the convenience of the parties.
continued, in fact, to acquire in the pursuit of his Accordingly, even if the case is inconvenient for the court
business subsequent subscriptions and remained a (case load yan e), it cannot motu priopio dismiss the case
subscriber of petitioner for quite sometime. unless there was a motion to dismiss. Venue does not
COMMENT: The Court here did not apply the doctrine in relate to jurisdiction.
Sweetline. In sweetline, there the passengers have no
other option but to avail the services of scarce shipping VENUE v. JURSIDICTION IN CIVIL CASES
services. (DACOYCOY vs IAC)
NOTE: In criminal cases, the venue also relates to
jurisdiction
THE TRIAL COURT CANNOT MOTU PROPIO DISMISS - Unlike in criminal cases, venue does not relate to
A CASE ON THE GROUND OF IMPROPER VENUE; jurisdiction, there is clear cut distinction between
RULES ON VENUE IS FOR THE CONVENIENCE OF the two.
THE PARTIES AND THUS MAY BE WAIVED. -
DACOYCOY vs IAC, G.R. No. 74854, April 2, 1991 Venue Jurisdiction
FACTS: Petitioner Dacoycoy, a resident of Balanti, Cainta,
Place where the action is to be - Jurisdiction over the
Rizal, filed before the Regional Trial Court Antipolo, Rizal, instituted and tried subject matter means
a complaint against private respondent Rufino de Guzman the power of the court
praying for the annulment of two (2) deeds of sale to hear the particular
involving a parcel of riceland situated in Barrio Estanza, case as defined by law.
Lingayen, Pangasinan, the surrender of the produce
thereof and damages for private respondent's refusal to Matter of procedural law Matter of substantive
have said deeds of sale set aside upon petitioner's law,
demand. Before summons could be served on private
respondent as defendant therein, the RTC Executive A relation between plaintiff and Establishes a relation
Judge issued an order requiring counsel for petitioner to defendant or petitioner and between the court and
confer with respondent trial judge on the matter of venue. respondent the subject matter
After said conference, the trial court dismissed the
complaint on the ground of improper venue. It found, May be conferred by the acts or Is fixed by law
based on the allegations of the complaint, that petitioner's agreement of the parties; May
action is a real action as it sought not only the annulment be waived.
of the aforestated deeds of sale but also the recovery of
The Court cannot motu proprio -
ownership of the subject parcel of riceland located in
dismiss on the ground of
Estanza, Lingayen, Pangasinan, which is outside the
improper venue without a
territorial jurisdiction of the trial court.
motion to dismiss filed by the
ISSUE: WON the order of the court dismissing the case is
defendant.
proper
HELD: No, The motu proprio dismissal of petitioner's - Generally, a court
complaint by respondent trial court on the ground of cannot dismiss motu
improper venue is plain error, obviously attributable to propio. There must
its inability to distinguish between jurisdiction and venue. It first be a motion filed
is said that the laying of venue is procedural rather than by the defendant. But
substantive. Provisions relating to venue establish a there are exceptions
relation between the plaintiff and the defendant and not
between the court and the subject matter. Venue relates RULE 5
to trial not to jurisdiction, touches more of the UNIFORM PROCEDURE IN TRIAL COURTS
convenience of the parties rather than the substance
of the case. Where defendant fails to challenge timely Section 1. Uniform procedure. — The procedure in the
the venue in a motion to dismiss, and allows the trial Municipal Trial Courts shall be the same as in the
to be held and a decision to be rendered, he cannot on Regional Trial Courts, excep:
appeal or in a special action be permitted to challenge (a) where a particular provision expressly or impliedly
belatedly the wrong venue, which is deemed applies only to either of said courts, or
waived.Thus, unless and until the defendant objects

REMEDIAL LAW
CIVIL PROCEDURE
(b) in civil cases governed by the Rule on Summary Section 3. Complaint. — The complaint is the
Procedure. (n) pleading alleging the plaintiff's cause or causes of action.
The names and residences of the plaintiff and defendant
Section 2. Meaning of terms. — The term "Municipal Trial must be stated in the complaint.
Courts" as used in these Rules shall include Metropolitan
Trial Courts, Municipal Trial Courts in Cities, Municipal - Complaint, in other words, is a written statement
Trial Courts, and Municipal Circuit Trial Courts. of plaintiff’s cause or causes of action.
A. RULES ON PLEADINGS
Q: What is the test for determining the sufficiency of
the facts alleged in the complaint constituting
RULE 6 RULES ON PLEADINGS
plaintiff‘s cause of action?
Q: What are pleadings? A: The test applied to determine the sufficiency of the
Section 1. Pleadings defined. — Pleadings are the facts alleged in the complaint constituting the cause of
written statements of the respective claims and defenses action is whether upon such facts a valid judgment may be
of the parties submitted to the court for appropriate rendered against the defendant.
judgment. (1a)
Q: When may the facts lead to a valid judgment
A PLEADING MUST NOT BE CONFUSED WITH A against the defendant?
MOTION; DISTINCTIONS
A: We go back to our understanding of what a cause of
Pleadings Motion
action is. What again is a cause of action? A cause of
- Written statements -
of Application for relief other action has been defined as the act or omission committed
ultimate facts constituting than a pleading- A motion by the defendant in violation of the plaintiff’s right.
the parties’ cause of action is not a pleading, it is a
and defense motion. - When we our discussing cause of action, we said
that there are three elements of a cause of
action, namely, i) right of the plaintiff (e,g if the
- Always relates to a cause of- A motion does not
right is based on a contract, then state it); ii) the
action, either in support of it necessarily relate to the
corresponding obligation on part of the defendant
like a complaint, or to defeat cause of action because it
to respect plaintiff’s right; iii) the act or omission,
it like an answer may be an application for
or the delict/wrong committed by the defendant in
- COMMENT: what do we an order or other relief not
violation of the plaintiffs right.
say again, every action has included in the judgment.
THEREFORE: To determine the sufficiency of the facts
a cause of action. - E.g. a motion for
alleged constituting the cause of action, the test is where
postponement.
upon such facts a valid judgement may be rendered
Q: What are the kinds of pleadings? against the defendant. And a valid judgement may be
rendered against the defendant if there is an allegation of
Section 2. Pleadings allowed. — The claims of a party
i) right, ii) obligation, iii) or act or omission.
are asserted in a complaint, counterclaim, cross-claim,
third (fourth, etc.)-party complaint, or complaint-in- Q: Is the prayer for relief a part of the cause of action?
intervention.
The defenses of a party are alleged in the answer to the A: A prayer for relief though a part of the complaint is not
pleading asserting a claim against him. part of the cause of action. And it does not give its
An answer may be responded to by a reply. character. However, in certain cases, it was held that the
prayer may give light as to the nature of the action
THERE ARE TWO KINDS OF PLEADING instituted, whether it is real or personal action. But
1. Pleading that asserts claims- ito ung claimant (par.1) generally, the prayer is not constitutive of a cause of
 e.g. In (i)complaint, (ii)counter-claim, action. A prayer is a relief- yan ang hinihingi mo sa court.
On the other hand, the cause of action is the bare
(iii)cross claim, (iv) third (fourth, etc.)-party
allegations regarding the right of the plaintiff, obllgation of
complaint, or (v) complaint-in-intervention.
defendat, and act or omission.
COMMENT: Wag na dagdagan to. A
pleading must not be confused with a Basic in pleadings – you aver to material facts, ultimate
motion. and essential facts constituting the plaintiff’s cause of
2. Pleadings that allege defenses- defensive or action. It is essential if it cannot be strickened out without
responsive pleading.(par. 2) leaving the statement of cause of action insufficient.
 e.g. (i) in the answer to the pleading Hence, vulnerable to motion to dismiss on the ground of
asserting a claim against him. An answer failure to state a cause of action.
may be responded to (ii) by a reply. ANSWER- First kind of defensive pleading, a pleading
COMMENT: dalawa lang, answer and reply which defeats a claim.
Q: What is a complaint? Q: What is an answer?

REMEDIAL LAW
CIVIL PROCEDURE
Section 4. Answer. — An answer is a pleading in A: Three ways. The rules provides for three ways,
which a defending party sets forth his defenses.
Rule 8 Sec. 10. Specific denial.
TWO KINDS OF ANSWERS, viz, Negative, and
Section 10. Specific denial. — A defendant must
Affirmative defense.
specify each material allegation of fact the truth of
Section 5. Defenses. — Defenses may either be which he does not admit and, whenever practicable,
negative or affirmative. shall set forth the substance of the matters upon
which he relies to support his denial.
(a) A negative defense is the specific denial of the
material fact or facts alleged in the pleading of the Where a defendant desires to deny only a part of an
claimant essential to his cause or causes of action. averment, he shall specify so much of it as is true and
material and shall deny only the remainder.
(b) An affirmative defense is an allegation of a new
matter which, while hypothetically admitting the material Where a defendant is without knowledge or
allegations in the pleading of the claimant, would information sufficient to form a belief as to the truth of
nevertheless prevent or bar recovery by him. The a material averment made to the complaint, he shall
affirmative defenses include fraud, statute of limitations, so state, and this shall have the effect of a denial.
release, payment, illegality, statute of frauds, estoppel, (10a)
former recovery, discharge in bankruptcy, and any other
matter by way of confession and avoidance. (5a)
MODE1: (1) specify each material allegation of fact, the
truth of which the defendant does not admit, AND (2) state
Kinds of defenses
the substance of the matter upon which he relies to
1. NEGATIVE DEFENSE support his denial.
―the specific denial‖- specifically deny the truth of the - it is not enough to state that you deny, must also
material fact. To make it a specific denial, it must comply state the basis of such denial.,meaning, state the
truth in so far as you are concerned
with the requirements to make it a specific denial. If not in
 ― I issued the PN, that pursuant to PN he
accordance with sec. 10 Rule 8, not a specific denial. should pay it on or before.‖
 ―I paid, I deny the allegation, the truth Is that
―of a material fact‖ I already paid it.
Q: When is a fact, material? When is it immaterial? - it is not enough to deny it is necessary to state
the basis of such denial.
A: A fact is material when it relates to the right of  truth is that I never did it.‖
the plaintiff, the obligation of the defendant to respect - you specifically deny the material averment but
the right, and the act or omission by the defendant should also state the basis of such denial
violating the right. These are the fact which (again, e.g di ko pirma yan. forgery ang pirma sa
go back to the basics, the elements of a cause of promissory note.
action) - must specify each material allegation of fact the
truth of which he does not admit, and whenever
MATERIAL AVERMENTS NOT SPECIFICALLY practical
DENIED, DEEMED ADMITTED:
 e.g I deny this fact = not sufficient; Must
Q: What is the effect of failure to make a specific denial in state your basis. Hence, I deny the
accordance with sec. 10, Rule 8? allegations set forth in par 3, the truth of the
15 matter is I’ve paid on 7 August so plaintiff
A: Sec. 11 of Rule 8. provides that the material averment
has forged.
in the complaint, other than those as to the amount of
unliquidated damages, shall be deemed admitted when
MODE2: Where a defendant desires to deny only a part
not specifically denied. In otherwords, the effect of a
general denial, or of a failure to specificially deny is of an averment, he shall specify so much of it as is true
admission. and material and shall deny only the remainder.
- only a part of an averment. If you admit, you shall
- Effect of general denial – deemed to admit also state.
XPN: the amount of unliquidated damage  e.g admits par. 5 of complaint but deny the
other allegations
THREE WAYS OF SPECIFIC DENIAL(Sec 10, rule 8) - if you deny the remainder you must also state the
Q: How do we make a specific denial? material allegations the truth of which you do not
admit, and setforth the substance of the matter
upon which the denial is based. Pareho din ng
15
Section 11. Allegations not specifically denied deemed number one.
admitted. — Material averment in the complaint, other than those as
MODE3: LACK OF KNOWLEDGE- Where a defendant is
to the amount of unliquidated damages, shall be deemed admitted
without knowledge or information sufficient to form a
when not specifically denied. Allegations of usury in a complaint to
recover usurious interest are deemed admitted if not denied under
belief as to the truth of a material averment made in the
oath.

REMEDIAL LAW
CIVIL PROCEDURE
complaint, he shall so state, and this shall have the specifically the material allegations of the complaint,
effect of a denial. hence, must be deemed to have admitted them.
ISSUE: WON it proper to render a judgment on the
- Ito simple lang, you just state that you have no
pleadings
knowledge sufficient to form a belief as to the
HELD: YES. The answer that the defendant has no
truth of a particular averment and therefore
knowledge or information sufficient to form a belief as to
denies it. This would already constitute a specific
the truth of an averment and giving such answer the effect
denial.
of a denial, does not apply where the fact as to which
- Q: How shall the defendant plea lack of want of knowledge is asserted, is so plainly and
knowledge or information to constitute a sufficient necessarily within the defendant's knowledge that his
and effective spefic denial? averment of ignorance must be palpably untrue.
COMMENT: You can invoke the third mode only if you are
A: To constitute a sufficient and effective spefic
expected to not to know the material allegations. If you are
denial of the allegations disclaiming knowledge or
reasonably expected to know the material allegations then
information sufficient to form a belief, must refer
you invoke lack of knowledge, that would be deemed an
specifically to such averment of the complaint as
admission. Dapat, ang sinabi ni mr. yabut ay he did not
are to be met by that particular form of plea.
buy a car. Kung bumili siya ng sasakyan, kung nagissue
- Moreover, lack of knowledge shall be invoked in sia ng PN, kung nagbayad ba siya, he is reasonably
good faith, that a person is not really in the expected to know such facts.
position to know the material facts alleged The EXTRA: In relation to JUDGMENT based on pleadings
statement ―I denied all the claims for lack of
knowledge‖ = insufficient (CAPITOL MOTORS i. when the answer fails to tender issue
vs YABUT) ii. otherwise admit the material allegations
Situation: There was an accident. The victim of the complaint
sustained injuries and was hospitalized. The
plaintiff was now claiming for hospital bills,
medicine bills and etc. He states in the complaint EXAMPLES OF INSUFFICIENT DENIAL (viz. failure to
that by reason of the reckless driving of the specify basis)-effect of which is the admission of the
defendant, the plaintiff sustained injuries and as a material averment in the plaintiff‘s complaint
result he was hospitalized for 2 months and 1) A general denial does not become specific simply
incurred the following expense i. hospital bill, because of the use of the word ―specifically‖
100k; ii. Medicine, 200k. Defendant says ―I deny
for lack of knowledge as to the hospital bills‖, is 2) A denial ―denies generally or specifically each
the denial sufficient? allegations contained in each par. Of the
complaint‖ without specifying the basis of the
A: YES. The defendant was not in the hospital to denial
know the real bills. He can invoke the lack of
knowledge. No knowledge as to the fees, medical 3) A denial ―of each allegations in the complaint
cost. Not reasonably expected to know them. without prejudice of filing later an amended
answer with all the necessary details after data
LACK OF KNOWLEDGE SUFFICIENT TO FORM A have been gathered‖
BELIEF MAY ONLY BE INVOKED IF THE DEFENDANT
IS NOT IN THE POSITION TO KNOW THE MATERIAL 4) A denial ―of each allegations in the complaint
ALLEGATIONS; MUST NOT BE EXPECTED TO KNOW without prejudice of filing later an amended
Illustrative case: answer in due time‖
Capitol Motors v. Yabut, G.R. No. L-28140, March 19, REASON FOR THE REQUIREMENT OF SPECIFIC
1970 DENIAL IN ACCORDANCE WITH RULE 8, SEC. 10:
FACTS: Capitol Motors Corporations filed a complaint LIMIT THE ISSUE, AND AVOID DELAY
against respondent Yabut. It was therein averred that the - To compel the defendant to specifiy the matters
defendant executed in favor of the plaintiff a promissory which he intends to disprove, and disclose the
note; that the defendant defaulted in the payment, and matters upon which he relies to support his
likewise failed to pay the interest due on the promissory denial. Thus, it will limit the issue, and avoid
note; and that in spite of demands by the plaintiff, the unnecessary delays later on during the trial.
defendant failed and refused to pay the said principal sum
and interest due. Prayer was made that the defendant be 2. AFFIRMATIVE DEFENSE
ordered to pay the plaintiff. The defendant filed an answer – an allegation of a new matter which, while
which reads: ―DEFENDANT through counsel alleges: 1. hypothetically admitting the material allegations in the
Paragraph 1 of the complaint is admitted. 2.Paragraphs 2, pleading of the claimant, would nevertheless prevent
3, 4, 5, 6 and 7 of the complaint are specifically denied for or bar recovery by him.
lack of knowledge sufficient to form a belief as to the truth - In other words, an allegation of a new matter
thereof.WHEREFORE, it is respectfully prayed that the which would prevent or bar recovery by the
Complaint be dismissed with costs against the plaintiff.‖ claimant.
Thereafter, plaintiff filed a motion for judgment on the - The one who asserts an affirmative defense is
pleadings, on the ground that the defendant, not having hypothetically admitting the material allegations
set forth in his answer the substance of the matters relied in the pleading of the claimant.
upon by him to support his denial, had failed to deny

REMEDIAL LAW
CIVIL PROCEDURE
―allegation of a new matter‖ thereto is not necessary. In the latter case, the complaint
 Ibigsabihin bago. One not mentioned in the itself would be deemed the answer of the plaintiff in the
complaint. counterclaim because the issues are so inseparable.
 It is considered new since this allegation was
never mentioned or stated in the complaint. Illustrative cases:
Unlike in the negative defense where a
material fact alleged is denied. Navarro v. Bello G.R. No. L-11647, January 31, 1958
―hypothetically admitting the material allegations FACTS: Petitioners-plaintiffs filed a complaint with the
in the pleading‖ Court of First Instance praying for the annulment of
transfer certificates of and the corresponding deeds of
 Hypothetical lang, sa tagalog, palagay mo na
tama kung ano kinkwento mo, pero di ka sale executed by respondents in favor of co-respondents.
parin makarecover. Petitioner claimed ownership of said parcels of land, and
alleged actual possession. The petitioner alleged that it
Affirmative defenses include: was upon a writ of possession issued by the court of
i) fraud, Pangasinan that they wre placed back in the possession
ii) statute of limitations, thereof by the provincial sheriff. (Nanalo sila sa isang kaso
iii) release, sa pangasinan, ung property in question, binigay sakanila
iv) payment, ng sheriff, yan ung basis ng ownership) Respondents filed
v) illegality, -sugal yan their answer also claiming ownership over the questioned
vi) statute of frauds, -uneforceability lots with a counterclaim for the damages allegedly arising
vii) estoppel, out of the unlawful usurpation of the possession of the
viii) former recovery, above described parcels of land by the petitioners through
ix) discharge in bankruptcy, force and intimidation. Petitioner failed to answer the
x) and any other matter by way of confession
counterclaim, because of that they were declared in
and avoidance
default with regard the counterclaim. Upon hearing ex
 Accordingly, the enumeration here is not
exclusive. e.g. res judicata, parte, the court rendered judgement awarding damages in
unconstitutionality, ultravires act. the counterclaim, declaring defendant as owners of the
land in question and dismissing petitioner’s complaint
IF THE DEFENDANT FAILS TO FILE AN ANSWER; ISSUE: WON the ruling of the trial court is correct
NOT DEEMED TO HAVE ADMITTED; MAY BE
HELD: NO. There was no need for petitioners to answer
DECLARED IN DEFAULT UPON MOTION
respondents' counterclaim, considering that plaintiffs, in
Q: If the defendant fails to file an answer, should he be their complaint, claimed not only ownership of, but also the
deemed to have admitted the material allegations in the right to possess, the parcels in question, alleging that
complaint? defendants through force and intimidation, wrested
possession thereof from their tenants, and that it was upon
A: NO. However, in such case, the defendant may be a writ of possession issued by the CFI of Pangasinan that
declared in default. If declared in default, ex parte they were placed back in possession by the provincial
proceedings na. sheriff. These averments weredenied by defendants in
their answer, in turn they asserted ownership in
themselves and illegal deprivation of their possession by
COMPULSORY COUNTERCLAIM NEED NOT BE plaintiffs, and as counterclaim, prayed for damages
ANSWERED; MAY NOT BE DECLARED IN DEFAULT allegedly suffered because of plaintiffs'alleged usurpation
of the premises.
Q: If the defendant plead a counterclaim in the answer, is
It thus appears that the issues of the counterclaim are
it necessary for the original plaintiff to file an answer to the
counterclaim? the very issues raised in the complaint and in the
answer (where ownership by defendant is also asserted),
Q2: Pag di niya sinagot, pwede bamadefault ba plaintiff? and said counterclaim is based on the very defenses
pleaded in the answer. To answer such counterclaim
A: It depends. If the counterclaim is permissive, an aswer wouldrequire plaintiffs to replead the same facts
is ALWAYS required. If it does not rise out of or connected already alleged in their complaint.
with the transaction or occurrence which constitutes the
subject matter of the opposing parties claim, it is COMMENT: In such an instance, the complaint stands in
necessary for the original plaintiff to answer since the place of an answer in the counterclaim.
issues therein are new. Accordingly, failure to answer a
counterclaim is a ground to be declared in default.
However, if the Counterclaim is compulsory and the issues
Gojo v. Goyola, G.R. No. L-26768, October 30, 1970
of that counterclaim are so inseparable from those raise in
the complaint and the answer, that such counterclaim FACTS: Plaintiff Gojo filed a complaint for consolidation of
partakes the nature of special defense, then an answer ownership of land which defendant and wife had conveyed

REMEDIAL LAW
CIVIL PROCEDURE
to by ―Deed of Pacto de Retro Sale" executed ten years as to recover possession of a portion of petitioners lot
earlier. Defendant fails to repurchase within the stipulated which was allegedly encroached upon by the wall
one year period. Defendant filed an answer with subsequently erected by Bernardo in place of the one he
counterclaim alleging that the transaction in question was had destroyed. Bernardo filed his answer denying
in fact an equitable mortgage and not sale, and that the petitioners' averments, and alleging the exact opposite of
plaintiff Gojo refused to resell when they tried to petitioner’s allegations, namely, that petitioners were the
repurchase. Counsel for respondent Goyala filed a parties who had encroached upon and occupied a portion
manifestation informing the trial court that the named of Bernardo's property. The petitioners failed to answer the
defendant (respondent) Antonina Almoguera was already counterclaim. As a consequence, they were declared in
dead, and named her surviving nearest kin. As a default.
consequence, the trial court, ordered requiring the counsel
for the plaintiff to submit an amended Complaint ISSUE: whether the lower court has gravely abused its
substituting therein for one of the defendants, Antonina discretion in declaring the petitioners in default and in
Almoguera, now deceased her successors in interest as rendering judgment against them on Bernardo's
party defendants, within the reglementary period. When counterclaim after an ex parte hearing.
plaintiff failed to comply with the order, the court, upon
HELD: YES. Bernardo's counterclaim was predicated
motion, dimissed the complaint, and declared the plaintiff
upon allegations of fact which are inconsistent with, and,
in default in the counterclaim, and ordered the
hence, controverted by, the allegations in petitioners'
presentation of evidence exparte with respect the
complaint. The counterclaim of Bernardo cannot be
counterclaim.
decided without passing upon the truth of the allegations
ISSUE: WON the defendants’ counterclaim is compulsory in the complaint, which petitioners are entitled to prove,
whether they had answered Bernardo's counterclaim or
HELD: YES, there can be no doubt that appellant's not. In other words, the issues raised in the
counterclaim was a compulsory one in as much as it counterclaim were inseparable from those posed in
arises out of or is necessarily connected with transaction the complaint, and so it was not absolutely necessary
or occurrence that is the subject matter of the complaint. for the petitioners to file an answer to the
The counterclaim was merely inconsistent with and counterclaim.
directly controverted; the whole theory and basic
allegations of the complaint.. COMMENT:In otherwords, sa Court, walang makulit,
bawal paulit-ulit, nalagay na exact opposite sa complaint.
COMMENT: Ang sabi ng plaintiff, he was now the owner
on the basis of the Deed Pacto de Retro, and the COUNTERCLAIM
defendant failed to repurchase. Ang sagot naman ng
Q: What is a counterclaim?
defendant, equitable mortgage lang to and not sale, and
you refused to allow us to repurchase
Section 6. Counterclaim. — A counterclaim is any
ISSUE2: Was it necessary to answer the compulsory claim which a defending party may have against an
counterclaim? opposing party. (6a)
HELD: NO, appellant's complaint stood as the answer to - claims of defendant against plaintiff; generally if
appellee's counterclaim it’s already existing and due, it must be alleged in
the answer. If its properly taken, it is a distinct
ISSUE3: May the appellant be declared in default to and independent cause of action, when it is
failure to answer properly interposed the defendant will be
claimant. Hence, there will be two simultaneous
HELD3: No. Since it is not necessary for him to answer as actions wherein each are both a plaintiff and
the complaint stood as the answer to the counter claim. defendant.
Moreover, it is now settled that a plaintiff who fails or Q: What is the nature of a counterclaim?
chooses not to answer a compulsory counterclaim may
A: It is a complaint by the defendant against the plaintiff.
not be declared in default, principally because the
Although it is alleged in the answer, it is not part of the
issues raised in the counterclaim are deemed
answer. It is a distinct and independent cause of
automatically joined by the allegations of the
action.
complaint
- When the counterclaim is properly interposed,
the defendant becomes, in respect to the matters
he pleaded, the suer, the actor, the claimant.
Ballecer v. Bernardo, G.R. No. L-21766 September - In such an instance, there would be two
30, 1966 actions pending between the same parties.
Wherein each is at the same time both a
FACTS: Petitioners Ballecer instituted a Civil Case against
plaintiff and a defendant.
respondent Bernardo, to recover damages allegedly - In connection with the kinds of pleadings, there is
caused by him in consequence of the destruction and i) a pleading which asserts a claim, ii)
demolition of a portion of a wall of the petitioners, as well responsive/defensive pleading. The pleadings

REMEDIAL LAW
CIVIL PROCEDURE
which asserts a claim are (i)complaint, suit as counterclaim? No he cannot, the lack of jurisdiction
(ii)counter-claim, (iii)cross claim, (iv) third (fourth, of RTC relates to the nature since the MTC has exclusive
etc.)-party complaint, or (v) complaint-in- jurisdiction over ejectment cases
intervention. The defensive/responsive pleadings
are (i) answer, or (ii) reply- sagot lang mga to, di
nag assert ng claim. Q: Is it necessary that a counterclaim must arise in the
same transaction?
KINDS OF COUNTERCLAIM- i) Compulsory; ii) A: NO. it need not necessarily arise out of the same
Permissive Counterclaim. transaction. Basis: The rules allow for permissive
counterclaim.
1. COMPULSORY COUNTERCLAIM
Q: What is a compulsory counterclaim? Q: How about in cross-claims?
Section 7. Compulsory counterclaim. — A
compulsory counterclaim is one which, being cognizable A: Yes, it is necessary since cross claims are always
by the regular courts of justice, arises out of or is compulsory.
connected with the transaction or occurrence constituting
the subject matter of the opposing party's claim and does
A COMPULSORY COUNTERCLAIM, OR A CROSS-
not require for its adjudication the presence of third parties CLAIM, NOT SET UP IN THE ANSWER SHALL BE
of whom the court cannot acquire jurisdiction. Such a BARRED. (RULE 9, Sec. 2)
counterclaim must be within the jurisdiction of the court Q: Where do you allege a counterclaim, or a cross -claim?
both as to the amount and the nature thereof, except that 16
A: must be alleged in the answer (Rule 11, Sec. 8)
in an original action before the Regional Trial Court, the Q: What happens if you failed to allege a COMPULSORY
counter-claim may be considered compulsory regardless counter-claim, or a cross-claim in the answer?
of the amount. (n) A: They shall be barred. (Rule 9, Sec. 2)
17
- Kaya tawag compulsory, dahil obligado kang

CROSS CLAIM ilagay sa answer.
Q: What is a cross claim? - If you did not plea in the answer, barred forever
Section 8. Cross-claim. — A cross-claim is any
claim by one party against a co-party arising out of the Q: When is a counterclaim, compulsory? ALSO APPLIES
transaction or occurrence that is the subject matter either TO CROSS-CLAIM
of the original action or of a counterclaim therein. Such A: A counterclaim is compulsory when: ELEMENTS-ALL
cross-claim may include a claim that the party against OF THESE MUST BE PRESENT
whom it is asserted is or may be liable to the cross- i. It arises out of or is connected with the
claimant for all or part of a claim asserted in the action transaction or occurrence constituting the
subject matter of the opposing party‘s claim;
against the cross-claimant. (7)
ii. Does not require for its adjudication the
- a claim by a party against a co-party. (Usually its presence of third parties of whom the court
defendant aginst co-defendnat) cannot acquire jurisdiction;
- always arising out of the transaction or iii. Must be within the jurisdiction of the court
occurrence that is the subj. matter of the original iv. It has already matured
action or counterclaim.
- e.g A creditor filed an action for recovery of debt ELEMENT1: It arises out of or is connected with the
against debtor and surety. The surety shall filed a
transaction or occurrence constituting the subject
cross claim against the principal debtor.
matter of the opposing party‘s claim;
COUNTERCLAIM v. CROSSCLAIM
Q: Plaintiff files an action to recover real property +
COUNTERCLAIM CROSS-CLAIM
fruits thereof. Defendant claims that he is possessor
- a counterclaim may - A cross-claim is in the concept of an owner. What is the nature of the
either be permissive or ALWAYS compulsory counter claim?
compulsory. A: Compulsory Counterlcaim. The taking of recovery
- A counterclaim is a - A cross-claim is a claim of property, it arose out of or necessarily connected
claim by a defending by a defending against with plaintiff’s claim.
party against the a co-defending party
claimant SCENARIOS: COMPULSORY OR PERMISSIVE
GR: Counterclaim is subject to the law on jurisdiction both

as to amount [BP129 Sec 19(8) and nature (Sec19
1,2,3,5,6,7) thereof 16
Section 8. Existing counterclaim or cross-claim. — A
XPN: if an original action before RTC regardless of the compulsory counterclaim or a cross-claim that a defending party has at
amount (only as to the amount not nature for e.g. plaintiff the time he files his answer shall be contained therein
17
files an action for recovery of property, defendant claims Section 2.Compulsory counterclaim, or cross-claim, not set up barred.
that pinarenta kita and you fail to file, can he file ejectment — A compulsory counterclaim, or a cross-claim, not set up shall be
barred.

REMEDIAL LAW
CIVIL PROCEDURE
Q: If plaintiff files an action against the defendant for Gen Rule – even compulsory claim must be answered bec
recovery of ownership or possession of real property. it is considered as a complaint of the defendant
Is a demand/claim to recover necessary expenses for
the preservation of the land as the defendant claims except when the answer is just to complete what was
to be the owner but in the alternative a possessor in alleged in the orig complaint
good faith. Is the alternative demand for
reimbursement for all the expenses incurred, and
ELEMENT2: Does not require for its adjudication the
things built as sower, planter, builder, a compulsory
presence of third parties of whom the court cannot
counterclaim?
Q2: What if he did not claim for the reimbursement acquire jurisdiction
and he lost in the civil action, can he subsequently - If required presence of 3rd person, it presumes
claim for reimbursement in a separate civil action? that court has jurisdiction.
A: Yes, the action is compulsory. All the four ELEMENT3: ―That it must be within the jurisdiction of
elements are present. In this case, the claim for the court both as to amount and nature‖
reimbursement is connected with the plaintiff claims XPN: except that in an (i) original action before the
for ownership. Since the reimbursement is the effect Regional Trial Court, the counter-claim may be
of the ousting of the possessor in goodfaith. CONSIDERED COMPULSORY (ii) regardless of the
Transaction dito, ung ownership. And under the law amount.
you have the right to claim reimbursement if some ―regardless of the amount‖
other person has better title. - Even if the counter-claim is not within the
A2: Since it is a compulsory counterclaim, the failure jurisdiction of the RTC as to amount, (NOT AS
to plead in the answer constitutes a bar. TO NATURE) the RTC may entertain the
counter-claim. The counterclaim in such case is
Q: May isang tao, pinahospital niya isang anak. Ung compulsory.
anak niya daw nahulog sa hospital, di inalagaan ng - The RTC may allow a counter-claim not within its
nurses, so nasugatan. Kinasuhan ngayon ang jurisdiction if the lack of jurisdiction only relates
hospital for the damages resulting from the injury of as to amount.
the child. Nagcounterclaim ang hospital for unpaid - If the lack of jurisdiction of the RTC relates as to
hospital bills. Is this a compulsory counterclaim? the nature of the subj. matter, then, it cannot
A: Yes, compulsory. Counterclaim arises out of or entertain the counter-claim.
connected with the transaction constituting the subject NOTE: Threshold amount in Manila, RTC if it
matter of the claim of the mother. The transaction in exceeds 400k; outside manila, 300k
this case is the hospitalization of the child. Because of
the hospitalization and the negligence of the nurses,
nahulog. Due to hospitalization, may unpaid bills. Q: What if finile ang original action sa RTC, ang
Consider the vinculum juris which binds them. Dito counter claim is only 250k, can the RTC entertain
may contract. Un ung transaction. that?
A: Yes, because it is only with respect of the
NOTE: We are saying that the cause of action relates to a amount
right, obligation to respect that right, and act/omission
violating that right. So ang unang hanapin mo, ano ba Q: What if an action was filed with the RTC for
basis nian ng right. Contract, quasi-contract, delict, quasi- recovery of ownership, nagfile ng counter-claim
delict, law. for ejectment (Unlawful detainer or forceable
entry), can the RTC entertain the counter-claim?
Illustrative case: A: NO. The lack of jurisdiction already relates to
SANTO TOMAS UNIVERSITY HOSPITAL vs. CESAR nature. RTC cannot entertain unlawful detainer or
18
ANTONIO Y. SURLA and EVANGELINE SURLA, forceable entry. (Sec. 19(2) of BP 129)
Issue: WON there should be cert of forum shopping ―within the jurisdiction of the court‖; XPN: ―original
P- bec of the negligence of D, their child fell. action before the RTC‖
Q: What if plaintiff files an action before the MTC
child incurred damages, pain for collection of sum of money in the amount of
P- fright, fear – moral damages 300000 kasama interest, file ngayon si defendant
ng counter-claim alleging malicious complaint,
Counterclaim:
D- first : not yet paid- hospital bills - dapat meron, 18
wala kasi yan sa complaint- sagutin mo yan Section 19. Jurisdiction in civil cases. – Regional Trial Courts shall
exercise exclusive original jurisdiction: xxx (2) In all civil actions which
second: harassment, to destroy reputation of the involve the title to, or possession of, real property, or any interest
hospital. - not initiatory therein, where the assessed value of the property involved exceeds
nd st
Twenty thousand pesos (P20,000.00) or for civil actions in Metro
Vitug- technically the 2 is not initiatory, 1 – dapat Manila, where such the value exceeds Fifty thousand pesos (50,000.00)
meron, wala kasi yan sa complaint- sagutin mo yan- except actions for forcible entry into and unlawful detainer of lands or
compulsory- arose out of the same tran- paghospital ng buildings, original jurisdiction over which is conferred upon
bata Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts;

REMEDIAL LAW
CIVIL PROCEDURE
thereby claim 1 million as damages. May the ELEMENT4: ―That it must have already matured‖
MTC entertain the counterclaim for 1 million? Ok - The counterclaim has already matured; the
parin ba, kahit beyond na ng jurisdiction of MTC pleader is obliged to raise it in the answer.
ang counterclaim? - That the counterclaim is due and demandable
A: Yes, but the excess amont would be deemed
to have been waived. (Agustine v. Bacalan) SCENE1: MATURED AFTER ANSWER; FILE
SUPPLEMENTAL PLEADING
WHEN DEFENDANT RAISES A COUNTERCLAIM Q: Supposed the counterclaim has matured after the
BEYOND JURISDICTIONAL AMOUNT OF MTC, IT answer has been filed, may it still be pleaded?
DOES NOT MEAN THAT MTC DID NOT ACQUIRE A: Yes, by a SUPPLEMENTAL complaint. (Not by an
JURISDICTION OF ENTIRE COUNTERCLAIM. IT ONLY amended answer) Same thing with a cross-claim.
- If the maturity of the counterclaim or cross-claim
MEANS THE PARTY WAIVED THE EXCESS.
came about after an answer has already been
Note: it relates only as to amount. filed, then it may still be pleaded by way of
Illustrative case: supplemental complaint. (Sec. 9, Rule 11)
Agustin v. Bacalan, G.R. No. L-46000, March 18, 1985
FACTS: Defendant Bacalan is a lessee of a one-door Section 9. Counterclaim or cross-claim
ground floor space in a building owned by the late Susana arising after answer. — A counterclaim or a
Agustin. Due to nonpayment of rentals despite repeated cross-claim which either matured or was acquired
demands an action to eject him was filed by Agustin by a party after serving his pleading may, with
before the City Court of Cebu. In his answer, the the permission of the court, be presented as a
defendant-appellee included a counter-claim alleging that counterclaim or a cross-claim by supplemental
by virtue of the unwarranted and malicious filing of this pleading before judgment. (9, R6)
action by the plaintiff against the defendant, the latter  Basta supplemental pleading, with leave of
suffered 50000 as damages. The City Court of Cebu court parati.
subsequently rendered judgment dismissing the  After-acquired compulsory counterclaim and
counterclaim and ordering the defendant to vacate the cross-claim and involved dito. Not yet
premises. From this decision, the defendant filed an existing at the time of filing answer.
appeal with CFI of Cebu. CFI reversed the decision on the
unlawful detainer and awarded the countercalim. CA said SCENE2; OMMITED COMPULSORY COUNTERCLAIM
that the reversal was correct. However, the CA said that it OR CROSS-CLAIM; FILE AMENDED ANSWER
was not correct for the RTC to have awarded the NOTE: A compulsory counterclaim, or a cross-claim, not
counterclaim since it was for the amount of 50000, when, set up shall be barred. (rule 9, Sec. 2)
at that time, the threshold amount of MTC is only up to Q: What if you forgot to plea an existing
10000. Since the MTC has no jurisdiction over compulsory counter-claim or crossclaim, may the
counterclaim, therefore the RTC acting as appellate court defending party still plead it? If so, how?
is bound by the jurisdictional limits of MTC, the court of A: Yes, it may still be pleaded by an amended
origin. answer. (Sec. 10, Rule 11)
ISSUE: WON the ruling of the CA as to the counterclaim is Section 10. Omitted counterclaim or
absolutely correct cross-claim. — When a pleader fails to set up a
HELD: No, Thus, by presenting his claim voluntarily counterclaim or a cross-claim through oversight,
before the City Court of Cebu, the defendant-appellee inadvertence, or excusable neglect, or when
submitted the same to the jurisdiction of the court. He justice requires, he may, by leave of court, set
became bound thereby. The amount of P10,000.00 being up the counterclaim or cross-claim by
the jurisdictional amount assigned the City Court of Cebu, amendment before judgment. (3, R9)
whose jurisdiction the defendant-appellee has invoked, he
is thereby deemed to have waived the excess of his claim COMPULSORY COUNTERCLAIM; ALL OF THE FOUR
beyond P10,000.00. It is as though the defendant-appellee ELEMENTS MUST BE PRESENT. WHERE ANY ONE
had set up a counterclaim in the amount of P10,000.00 OF THE ELEMENT IS MISSING, THE COUNTERCLAIM
only. IS MERELY PERMISSIVE.
COMMENT: In such case, the excess shall be deemed Illustrative case:
waived.
Calo v. Ajax Int‘l, G.R. No. L-22485, March 13, 1968
Note: before, the threshold amount is P10000. In the old
For e.g unlawful detainer and forcible entry cannot be rules, binibilang din lahat ng amount kahit incidental.
sued in a Counterclaim in RTC. But if for a sum of money FACTS: Plaintiff-appellant Calo ordered from defendant-
e.g plaintiff sues for 1M. Defendant says nabayaran na appellee Ajax International, Inc., 1,200 ft. of John Shaw
yan, entitled ako sa moral at exemplary but aksing only for wire rope. When the wire rope was delivered to Butuan
less than 300k or 400k in Metro Manila, pwede n rin sa City, the same was found short of 300 ft. Thereafter, a
RTC kasi sa RTC na din na file original action. IF sa MTC complaint was filed in the Municipal Court of Manila by
nafile, apply AGUSTIN vs BATACLAN one Adolfo Benavides who claimed to have acquired the
outstanding credit account of Calo from defendant Ajax

REMEDIAL LAW
CIVIL PROCEDURE
International, Inc, and claimed the subsisting obligation in 2. PERMISSIVE COUNTERCLAIM
the amount of P.855. On the other hand, Plaintiff Calo filed Q: When is a counter claim permissive?
in the CFI of Agusan a complaint against defendant asking A: A counterclaim is permissive if any of the elements of
(1) that the latter either effect complete delivery or that she compulsory counterclaim is absent. But the most
be relieved from paying P855.00 and (2) that the latter commonly treated feature is its absence of a logical
indemnify her for P12,000 as attorney's fees, damages connection with the subject matter of the complaint. e.g, it
and expenses of litigation. Defendant moved for the does not arise out of or is not connected with plaintiff’s
dismissal of Civil Case on the ground, inter alia, that the
cause of action
subject thereof was involved and intimately related to that
- Being merely permissive, there is no obligation to
in Civil Case of the Municipal Court of Manila. The CFI of
Agusan sustained the motion and dismissed the case. The raise the same in the answer
dismissal of CFI Civil Case No. 860 by the court a quo - Since there is not obligation to raise it in the
because of the pendency of Civil Case in the municipal answer, a person is not barred from raising it in
court of Manila is predicated on the supposition that the same proceeding.
plaintiff's claim is a compulsory counter-claim that should Q: How may a counterclaim not within the jurisdiction of
be filed in the latter case. the court be pleaded?
ISSUE: WON the dismissal of the Civil Action by the CFI A: You can plead that in a separate action.
(now RTC) of Agusan is correct Q: How may a counterclaim not within the jurisdiction of
HELD: NO. There is no question that it arises out of the the RTC as to the amount be pleaded?
same transaction which is the basis of the complaint in A: You must plead that in the answer. It is allowed by the
Civil Case in City court of manila and does not require the law. The reason for the rule is that the said counterclaim is
presence of third parties over whom the municipal court of pleaded as an offset to reduce plaintiff’s claim.
Manila could not acquire jurisdiction. However, Plaintiff's Q: In what actions shall the compulsory counterclaim or
claim is not a compulsory counterclaim in Civil Case
cross-claim be set up?
in City of Manila because that the amount thereof
A: It must be set up in the same action. That is why the
(P12000) exceeds the jurisdiction of the municipal
court. The rule that a compulsory counterclaim not set up rule says that it shall be pleaded in the answer, otherwise
is barred, when applied to the municipal court, they shall be barred. (Rule 9, Sec. 2)
presupposes that the amount involved is within the said NOTE: On the otherhand, a mere permissive counterclaim
court's jurisdiction. Otherwise, we would come to the may be set up in a separate action.
absurd situation where a claim must be filed with the
municipal court which it is prohibited from taking COMPULSORY PERMISSIVE
cognizance of, being beyond its jurisdiction.
A party has at the time the Not subject to the same
COMMENT: The rule in Rule 9, sec. 2 applies only to
answer is filed, shall be rule. Hence, it may be set
COMPULSORY counterclaim. A permissive counterclaim
contained in the answer up as an independent
not pleaded in the answer is not barred. One element is
because a compulsory action and it will not be
missing in this case, namely, that the counterclaim be
counterclaim not set up barred if not contained in
within jurisdiction.
shall be barred. the answer to the
ESCOLIN: The civil case is also for a specific
complaint.
performance. The plaintiff is asking for the delivery. So in
some extent, incapable of pecuniary estimation. Not an initiatory pleading Considered as initiatory
Magdeliver ka, hindi kwarta-kwarta yan. If incupable of
pecuniary estimation, the nature of the action is not within Cannot be independently should be accompanied by
the jurisdiction of MTC set updoes not require a certification against
certificate (forum forum-shopping and
NOTES: shopping/K.brgy) because it wehenevr required by law,
1) Where counterclaim exceeds court’s jurisdiction of the is not initatory in character. also a certificate to file
trial court, the rule that a compulsory counterclaim not action issued by K.
set up is barred does not apply; The rule on Pambaranagay.
Compulsory Counterclaim presupposes that the
Failure to answer in CC is Must be answered by the
amount involved is within court’s jurisdiction. (CALO
not a cause for default party against whom it is
vs AJAX) declaration interposed otherwise he
2) When you answer questions in the bar, Icite lahat ng may be declared default as
requisites, make a checklist. The ruling in Calo vs to the counterclaim;
Ajax is still valid and a good law.
3) Reason for permitting counterclaims – to avoid Docket and other lawful Docket and other lawful
multiplicity of suits e.g plaintiff filed an action for fees must be paid also fees must be paid by for a
collection of sum of money. Defdandt defense: he permissive counterclaim
paid.

REMEDIAL LAW
CIVIL PROCEDURE
COUNTER-COUNTERCLAIMS AND COUNTER- ii. It must be noted that RE USURY is not
CROSSCLAIMS anymore a compulsory reply. The rules now
Section 9. Counter-counterclaims and counter- provides, as opposed the old rules, that
crossclaims. — A counter-claim may be asserted against Allegations of usury in a COMPLAINT to
an original counter-claimant. recover usurious interest are demed admitted if
A cross-claim may also be filed against an original cross- not denied or oath. (Rule 8 Sec 11);
claimant. (n) - The second instance under the OLD RULES, is
- kapag kinounterclaim ka, pwede ka bang when the ANSWER avers the issue of usury. E.g.
magcounterclaim? Yes, tawag dian, counter- collection of sum of money, raises usury
counterclaim
- Note: No longer applicable. Wording ng rule now
- kapag Kinross claim ka, pwede ka din magcross
claim laban sa cross-claimant is allegation of usury in a complaint, not ―in an
answer‖
REPLY Q:Accordingly, if the defendant in a
Q: What is a reply? collection suit avers in the answer the issue
Section 10. Reply. — A reply is a pleading, the of Usury, and the plaintiff fails to specifically
office or function of which is to deny, or allege facts in deny a reply. Will the usury be deemed
denial or avoidance of new matters alleged by way of admitted?
defense in the answer and thereby join or make issue as A: The usury is not deemed admitted, since
to such new matters. If a party does not file such reply, all the answer is not a complaint. Under the
the new matters alleged in the answer are deemed present rules, the allegations of used must
controverted. be raised in a complaint not aswer
If the plaintiff wishes to interpose any claims arising out of
the new matters so alleged, such claims shall be set forth ―If the plaintiff wishes to interpose any claims arising
in an amended or supplemental complaint. (11)
out of the new matters so alleged, such claims shall
- this is the second kind of a responsive/defensive be set forth in an amended or supplemental
pleading.
complaint‖
- Pleading the function of which is to 1) deny or
2)alleged facts of denials of new matters Q: Mayplaintiff set up in his reply claims arising from
asserted by way of defense in answer and the new matters raised in the answer?
thereby raising new issue. Thereby, joining A: NO, plaintiff cannot set up in his reply claims
issues in the answer. arsising from the new matters raised in the
- In other words, a reply is a response to the answer. Sec. 10 Par. 2, thus, said claims must be set
affirmative defense raised in the answer. There
forth in an amended or supplemental complaint, not in
are two kinds of defense, namely, negative and
affirmative. Affirmative defenses are the new the reply.
matters which would prevent or bar recovery,
e.g. fraud, illegality, etc. THIRD PARTY COMPLAINT
- Q: What part of a reply is directed or controverts? Section 11. Third, (fourth, etc.)—party complaint.
A: If it raise new matters as to affirmative defense — A third (fourth, etc.) — party complaint is a claim that a
raised it in the answer. It is a responsive defending party may, with leave of court, file against a
pleading.
person not a party to the action, called the third (fourth,
- Who files? The plaintiff.
etc.) — party defendant for contribution, indemnity,
―If a party does not file such reply, all the new matters subrogation or any other relief, in respect of his
alleged in the answer are deemed controverted.‖ opponent's claim. (12a)
Q: What is the effect of failure to file a reply? - The requirement is you must file a motion for
A: Filing of a reply is option, and failure to do so admission of third party complaint
amounts to a denial of all the matters alleged in the - It is filed by a defending party against person not
answer. a party to the action
- He is called third (forth) party defendant
XPN: i) ACTIONABLE DOCUMENT; USURY(OLD - For the purpose of contribution, indemnity,
RULES) subrogation or any other relief, in respect of his
Q: Are there instances when a reply is compulsory?
opponent's claim.
A: Yes, e.g.
- Must always be in respect to opponent’s claim
i. When an answer is absed on actionable
- Yung hindi pa party, sinsali mo, the initiative is to
document
drag in a third party. It is always by leave of court.
- in which case, in order to deny the genuiness
- On the otherhand, if the inititiative comes from
and due execution of the actionable document, it
third party, you call it intervention.
must be denied under oath.
- Pag di ka nagreply diyan, deemed admitted ang
genuiness and due execution (only)

REMEDIAL LAW
CIVIL PROCEDURE
Q: In connection with the purpose, what are therefore the  E.g. In an action for recovery of real
tests? property, the defendant there may file a
A: TESTS: third-party complaint against his vendor for
i. FOR CONTRIBUTION- The third (fourth…) warranty against eviction.
party complaint must arise out of the SAME
TRANSACTION on which the plaintiff’s claim SUBJECT TO RULES ON JURISDICTION; XPN:
is based. ORIGINAL ACTION IN RTC, THIRD-PARTY
 e.g. Thus if X and Y are guilty of quasi-delict COMPLAINT NEED NOT BE WITHIN ITS
and the injured party filed an action for JURISDICTION; MERELY ANCILLARY
damage against X only, X may file against Y Q: Must a third-party complaint be within the jurisdiction of
for contribution joint tortfeasor = joinly liable.
the court where the principal action is pending?
The transaction in this case is the quasi
delict. And the purpose of the third party A: Generally Yes. But where the action is pending in the
complaint is for contribution. RTC, the thirdparty complaint need not be within the
jurisdiction of that court. The reason is that a thirdparty
ii. FOR INDEMNITY- when though arises out of complaint is merely a continuation of and ancillary to the
different transaction, it is CONNECTED prinicipal action. The jurisdiction in the principal suit
WITH PLAINTIFF‘S CLAIM embraced all incidental matters arising therefrom or
 When you speak of indemnity, the third party connected therewith.
claim, although it arises out of another  E.g. In a thirdparty complaint for contribution,
transaction or contract but nonetheless let’s assume that there are may sureties.
CONNECTED with plaintiff’s claim. Let’s say tatlo. Ang agreement, kung di
 e.g. a surety is sued for recovery of debt by
magbayad principal debtor, hati sila, 1/3
the creditor. The surety who is sued only
may file a third party claim against the each. Now, only one surety was sued. That
principal debtor for indemnity. In this case, surety can file a third party complaint for
the claim of the surety against the third-party contribution to the extent of their participation
(principal debtor) arise out of another of 1/3 each. Assuming that the 1/3 is below
contract or transaction other than that of the the amount within the jurisdiction of RTC
loan granted by the creditor, but the claim is (viz. 300k+/400k+). The RTC can still take
connected with plaintiffs claim.
cognizance of this.
 Separate ang contract of surety sa contract
of loan itself. Pero connected.  Transcriber’s comment: it seems that the xpn
is only as to amount, and not as to nature.
iii. FOR SUBROGATION- The third party
defendant would be liable to palintiff’s claim
against the original defendant although the BRINGING NEW PARTIES IN THE DETERMINATION
third party defendant’s liability arises out of OF COUNTER CLAIM OR CROSS CLAIM.
another transaction. Section 12. Bringing new parties. — When the
 e.g In a CONTRACT OF LEASE, The presence of parties other than those to the original action
lessee undertook to shoulder the cost of is required for the granting of complete relief in the
repairs in the leased premises. Ang ginawa determination of a counterclaim or cross-claim, the court
ngayon ng lessee ay pinasublease nia ung shall order them to be brought in as defendants, if
property. In the sublease agreement, the jurisdiction over them can be obtained.
lessee passed on the obligation to make the
repairs to the sub-lessee. Since the repairs ANSWER TO THIRD-PARTY COMPLAINT
were not done. Lessee is sued by the lessor
Section 13. Answer to third (fourth, etc.)—party
for the cost of repairs in a case where under
complaint. — A third (fourth, etc.) — party defendant may
contract of lease, the lessee obligated
himself to bear the cost of the repairs. The allege in his answer his defenses, counterclaims or cross-
lessor sues the lessee for cost of repairs. claims, including such defenses that the third (fourth, etc.)
Defendant lessee may file a third party — party plaintiff may have against the original plaintiff's
complaint for subrogation against a sub- claim. In proper cases, he may also assert a counterclaim
lessee who has assumed the obligation to against the original plaintiff in respect of the latter's claim
make the repairs which the latter did not do. against the third-party plaintiff. (n)
Q: Can a third-party defendant file a counterclaim?
iv. OTHER RELIEFS- In such instance, the A: YES
third-party defendant, as claimant now, may Q: How about a crossclaim?
assert any defense which the third-party A: YES
plaintiff has, or may have, against the - He may also allege such defenses that the third
plaintiff’s claim. (fourth, etc.) — party plaintiff may have against
the original plaintiff's claim.

REMEDIAL LAW
CIVIL PROCEDURE
- In proper cases, he may also assert a complaint, they shall be prefaced by the words "answer to
counterclaim against the original plaintiff in the first cause of action" or "answer to the second cause
respect of the latter's claim against the third-party of action" and so on; and when one or more paragraphs of
plaintiff. the answer are addressed to several causes of action,
they shall be prefaced by words to that effect. (4)
(c) Relief. — The pleading shall specify the relief
RULE 7
sought, but it may add a general prayer for such further or
PARTS OF PLEADING other relief as may be deemed just or equitable. (3a, R6)
(d) Date. — Every pleading shall be dated. (n)
CAPTION Body:
 Designation- e.g. ―Complaint‖; ―complaint in
Section 1. Caption. — The caption sets forth the intervention‖; ―Answer‖; ―Answer with
name of the court, the title of the action, and the docket crossclaim‖; ―third pary complaint‖
number if assigned.  Allegations of the party’s claims or defenses
- The allegations shall be divided into
The title of the action indicates the names of the parties. paragraphs
They shall all be named in the original complaint or  Relief prayed for
petition; but in subsequent pleadings, it shall be sufficient  Date of the pleading
if the name of the first party on each side be stated with an - Paragraphs, wag mo ilagay lahat sa isang
appropriate indication when there are other parties. sentence. Iisang paragraph mo per element ng
cause of action (viz. Right, obligation,
Their respective participation in the case shall be act/omission)
indicated. (1a, 2a) - Heading- kung marami kang cause of action
―allegations relating to first cause of action‖;
- Caption –the heading or introductory part of the ―allegations relating to second cause of action‖.
pleading, motion, depositions or other legal Pag answer ―by way of answer to the first cause
instrument which indicates the: of action‖ etc.
i. Name of the Court – ―Republic of the Philippines, - Relief- May add a general relief
Third Judicial Region, RTC,‖ - Date
ii. Title of the Action
 Indicates the names of the parties. SIGNATURE AND ADDRESS-ung pinakadulo ng
 Title – distinctive appellation by which any pleading.
cause in court, or other juridical proceedings, Section 3. Signature and address. — Every
is known and distinguished from others; pleading must be signed by the party or counsel
Name of the parties and the respective
representing him, stating in either case his address which
participation of parties
should not be a post office box.
 Only in original complaint that parties must
all be named. In subsequent pleadings (e.g.
answer, counterclaim), words indicating The signature of counsel constitutes a certificate by him
there are still other such as etc., and others, that he has read the pleading; that to the best of his
et al. may be used knowledge, information, and belief there is good ground to
 Lagay mo nalang, juan dela cruz, et al. support it; and that it is not interposed for delay.
 Lagay mo din participation, e.g. ―plaintiff‖,
―petitioner‖ An unsigned pleading produces no legal effect. However,
iii. The docket number, if assigned the court may, in its discretion, allow such deficiency to be
remedied if it shall appear that the same was due to mere
BODY inadvertence and not intended for delay. Counsel who
Section 2. The body. — The body of the pleading sets deliberately files an unsigned pleading, or signs a pleading
forth its designation, the allegations of the party's claims or in violation of this Rule, or alleges scandalous or indecent
defenses, the relief prayed for, and the date of the matter therein, or fails promptly report to the court a
pleading. (n) change of his address, shall be subject to appropriate
(a) Paragraphs. — The allegations in the body of a disciplinary action. (5a)
pleading shall be divided into paragraphs so numbered to Signature+Address. Address not a post office box.
be readily identified, each of which shall contain a - Signature constitutes as certificate:
statement of a single set of circumstances so far as that i. that he has read the pleading;
can be done with convenience. A paragraph may be ii. that to the best of his knowledge,
referred to by its number in all succeeding pleadings. (3a) information, and belief there is good
(b) Headings. — When two or more causes of action ground to support it; and
are joined the statement of the first shall be prefaced by iii. that it is not interposed for delay.
the words "first cause of action,'' of the second by "second  We’ll compare this with a verifaction
- Must be signed by the party / address
cause of action", and so on for the others.
―An unsigned pleading produces no legal effect.‖
When one or more paragraphs in the answer are
- Sham pleading – an unsigned pleading
addressed to one of several causes of action in the

REMEDIAL LAW
CIVIL PROCEDURE
 However, the court may, in its discretion, - How do you acquire knowledge? By sense
allow such deficiency to be remedied if it perception. Either you saw it, tasted it, heard it,
shall appear that the same was due to mere touched it, smelled it.
inadvertence and not intended for delay. - In connection with evidence, hearsay evidence is
- Whenever you change address, must notify the not admissible because that is tsismis, bat di ung
court may personal knowledge ilagay sa witness stand
- But note, there are cases in evidence where the
VERIFICATION evidence is not based on personal knowledge but
Section 4. Verification. — Except when otherwise is admissible, e.g. pedigree. (for instance, mga
specifically required by law or rule, pleadings need not be sabi ng magulang about sa birth, sinabi lang
sayo, pero you can testify about that, your
under oath, verified or accompanied by affidavit .(5a)
parents would not lie about that to you; pagsinabi
ng mama mo na kapatid mo si ganito, lolo mo si
A pleading is verified by an affidavit that the affiant has ganito)
read the pleading and that the allegations therein are true - In connection with warrantless arrest, if after
and correct of his knowledge and belief. commission of arrest. Dapat may probable cause
ang arresting officer that the one being arrested
A pleading required to be verified which contains a is the one who committed it, hindi sabi ng iba.
verification based on "information and belief", or upon  e.g. kung may witness, nagpasketch, nakita
"knowledge, information and belief", or lacks a proper ng pulis ung nasa sketch, can he arrest that
verification, shall be treated as an unsigned pleading. (6a) person without a person? A: No, ang may
Q: Is verification required in every pleading? personal knowledge ay ung witness, hindi
A: NO. ―Except when otherwise specifically required ung police.
- Failure – mere formal and not jurisdicitional
by law or rule, pleadings need not be under oath, verified
or accompanied by affidavit‖
Signature of counsel Verification by Plaintiff
 GENERAL RULE: Pleadings need not be
verified i. Read the i. Read the
 XPN: if provided by law or rule e.g pleadings pleading pleading
covered by summary procedure including ii. Good ground to ii. True and correct
answer thereto support it. based on personal
―A pleading is verified by an affidavit that the affiant iii. Not interposed by knowledge
has read the pleading and that the allegations therein delay
are true and correct of his knowledge and belief.‖
Q: How is a pleading verified? CERTIFICATION AGAINST FORUM SHOPPING
A: A pleading is verified by the affidavit: Section 5. Certification against forum shopping.
i. that the affiant has read the pleading — The plaintiff or principal party shall certify under oath in
ii. That the allegations in the pleading are true and the complaint or other initiatory pleading asserting a
correct based on personal knowledge and
claim for relief, or in a sworn certification annexed thereto
belief (hindi pwedeng sabi lang sakanya)
and simultaneously filed therewith: (a) that he has not
―A pleading required to be verified which contains a
theretofore commenced any action or filed any claim
verification based on "information and belief", or upon
involving the same issues in any court, tribunal or quasi-
"knowledge, information and belief", or lacks a proper
judicial agency and, to the best of his knowledge, no such
verification, shall be treated as an unsigned pleading.‖
other action or claim is pending therein; (b) if there is such
Considered as sham pleading:
other pending action or claim, a complete statement of the
i. based on information and, belief;
ii. upon knowledge, information, and belief present status thereof; and (c) if he should thereafter learn
iii. Lacks a proper verification (with verification but that the same or similar action or claim has been filed or is
not proper) pending, he shall report that fact within five (5) days
Considered UNSIGNED PLEADING- hence therefrom to the court wherein his aforesaid complaint or
considered a sham pleading. initiatory pleading has been filed.
CAVEAT: ABSENCE OF A VERIFICATION IS A MERE Failure to comply with the foregoing requirements shall not
FORMAL DEFECT; WILL NOT AFFECT VALIDITY OF A be curable by mere amendment of the complaint or other
PLEADING; LACK OF VERIFICATION EVEN IF initiatory pleading but shall be cause for the dismissal of
REQUIRED BY LAW IS NOT FATAL; MAY BE CURED the case without prejudice, unless otherwise provided,
Q: However, where no verification is made, in a case upon motion and after hearing. The submission of a false
where it is required, will it affect the validity of the certification or non-compliance with any of the
pleading? undertakings therein shall constitute indirect contempt of
A: NO, in such case, it is a mere formal defect, pwede court, without prejudice to the corresponding
mong pa verify. Curable kasi formal lang ang defect. administrative and criminal actions. If the acts of the party
- Hindi pwede ang ―based on information and or his counsel clearly constitute willful and deliberate
belief‖, or ―knowledge, information and belief‖ forum shopping, the same shall be ground for summary
dapat alam mo talaga. dismissal with prejudice and shall constitute direct

REMEDIAL LAW
CIVIL PROCEDURE
contempt, as well as a cause for administrative sanctions. REITERATION: The mere mechanical absence of a
(n) certification against forum shopping is already a ground for
NOTE: Ito na ung mga periphery, ung pleading kasi un the dismissal of the case and not curable by amendment.
talga ung allegation constituting the ultimate facts. Ung But that dismissal is without prejudice and may only be
verification, and certification against forum shopping, made upon motion
kumbaga embellishment nalang.
- Kung walang certification against forum ―The submission of a false certification or non-
shopping, dismissable yan. compliance with any of the undertakings therein shall
- Failure to comply, effect: NOT CURABLE BY constitute indirect contempt of court, without
AMENDMENT, a ground for dismissal. Ratio: prejudice to the corresponding administrative and
You ony amend allegations constituting the criminal actions.‖
cause of action or defense. In otherwords, only - Non-compliance with any of the undertakings
allegations of ultimate facts may be subject of therein (it na ung hearing‖
amendment BUT the dismissal is without - Indirect contempt
prejudice. XPN: unless otherwise provided by - Administrative and criminal actions.
hearing & motion Administrative, sa abogado
Q: What is a certification against forum shopping? NOTE: Criminal kasi pwede ka maperjury, under
A: A Certifiication under oath: oath e.
i. that he has not theretofore commenced any Q: When is there forum shopping?
action or filed any claim involving the same A: When there is either i) litis pendentia; or ii) res
issues in any court, tribunal or quasi-judicial judicata.
agency and, to the best of his knowledge, no
TWO FORMS OF FORUM SHOPPING
such other action or claim is pending therein;
1) Litis pendentia – two cases pending at the
ii. if there is such other pending action or claim, a
complete statement of the present status thereof; same time;
-That there are two actions involving the
and
iii. if he should thereafter learn that the same or same parties.
similar action or claim has been filed or is Elements:
pending, he shall report that fact within five (5) i. Identity of parties
days therefrom to the court wherein his aforesaid ii. Identity of rights asserted, the two cases
complaint or initiatory pleading has been filed. are based on the same right
- these are the contents of a certification against iii. The judgment in either case, whoever is
forum shopping; the winner, will constitute resjudicata.
-Litis pendentia involving the same parties,
―Failure to comply with the foregoing requirements the same cause of actions, reliefs based on
shall NOT BE CURABLE BY AMENDMENT of the the same right, the same delict/wrong. In
complaint or other initiatory pleading but shall be otherwords, the last element, that the
cause for the dismissal of the case WITHOUT pending case, a judgement in any one of
PREJUDICE, unless otherwise provided, upon motion them, whoever party is successful will
and after hearing‖ constitute resjudicata upon the other or
- if there is a failure to comply with the requirement others
for a certification, then, that is dismissable, and it 2) Res judicata – talo ka na then punta ka pa
cannot be cured by amendment. Again, the sa ibang court.
reason behind that is that you only amend an -May unang kaso, final na and executory,
allegation constituting a cause of action or nagfile ka again, involving the same parties,
defense. the same right, the same cause of action.
- If it is dismissed, the dismissal is without NOTE: hence, sa pleading, there can only be one action
prejudiced, pag sinabing ―without prejudiced‖, for a single cause of action. It can never be two. Because
―without prejudiced to being refiled‖- so pwede if there are two actions, that can either constitute litis
pang irefile ulit, pero bayad ka ulit ng filing fee. pendentia, or resjudicata. Hence kung may simultaneous
- Can only be dimissed upon motion and after cases, you are shopping from one court to another to get
hearing
what you want.
―unless otherwise provided, upon motion and after
NOTE: A splitting, file ka to recover the principal, nanalo
hearing‖
ka na tapos, then you file another case to recover the
- In otherwords, if the order of dismissal states that
interest. That cannot be done, kasi splitting of cause of
it is with prejudice, then that is with prejudice.
- However, such order can only be done if there action
was a motion to declare it with prejudice, and Q: What is the test to determine whether the action is
after hearing a single cause of action?
- In otherwords, there should be first a hearing A: If it is based on the same act or omission
whether you committed forum shopping or not. e.g. Meron promissory note, ang sabi sa promissory
 Magpresent ka ebidensya nameron palang note, magbayad ng principal amount, at interest.
unang kaso, motion, and hearing. Only then Nagasunto muna to recover principal, then nanalo,
may the court issue an order of dismissal tapos, naningil ulit based on interest. Splitting yan,
with prejudice.

REMEDIAL LAW
CIVIL PROCEDURE
kasi meron lang one delict/wrong, i.e the failure to HELD Regarding the certificate of non-forum shopping,
pay, isa lang ang omission. the general rule is that all the petitioners or plaintiffs in a
case should sign it. However, the Court has time and
―The plaintiff or principal party shall certify under again stressed that the rules on forum shopping, which
oath‖ were designed to promote the orderly administration of
Q: Who should issue the certification? justice, do not interdict substantial compliance with its
A: The plaintiff or the principal party. provisions under justifiable circumstances. As has been
Q1: If there are many plaintiffs, are they all required to ruled by the Court, the signature of any of the
sign? principal petitioners or principal parties, as Francisca
Q2: If only some and not all signed. Is the certification is in this case, would constitute a substantial
insufficient? Hence, there is deemed no certication? compliance with the rule on verification and
A1:Yes certification of non-forum shopping. It cannot be
A2:Yes, it would be insufficient, therefor initiatory. overemphasized that Francisca herself was a principal
party in Civil Case No. 3341-17 before the RTC and in the
Q: Pwede bang ang abogado ang magcertify against certiorari proceedings before the CA. Besides being an
forum shopping? heir of Benedicto, Francisca, with her mother, Julita, was
A: NO, a counsel is not a plaintiff nor a petitioner. substituted for Benedicto in the instant case after his
XPN: In one case, the lawyer of the solicitor general who demise.
was assigned by a particular gov’t instrumentality signed
the certification. Kasi abogado yan ng gov’t
ESCOLIN: pero para sakin, pinilit lang ung decision.
And should there exist a commonality of interest among
the parties, or where the parties filed the case as a
RULE1: if the plaintiff or principal party is a juridical
collective, raising only one common cause of action or
person, the signatory must be an authorized
presenting a common defense, then the signature of one
representative.
of the petitioners or complainants, acting as
Q: In case the principal party is a juridical person, who
representative, is sufficient compliance. We said so in
shall be the signatory?
Cavile v. Heirs of Clarita Cavile. Like Thomas Cavile, Sr.
A: Must be an authorized officer, namely, the person
and the other petitioners in Cavile, Francisca and Julita, as
designated by the board or governing body,
petitioners before the CA, had filed their petition as a
 Therefore, if it’s a corporation, there must be collective, sharing a common interest and having a
a board resolution certified to by the
common single defense to protect their rights over the
corporate secretary under oath that the
board of directors are authorizing the shares of stocks in question.
President to issue the certification against
forum shopping. Even the president is not
presumed to be an authorized officer. There ―in the complaint or other initiatory pleading asserting
must still be a corporate secretary certificate. a claim for relief‖
RULE2: Where the parties are suing under a common Q: When is a certification against forum shopping
cause of action, it is not necessary that all must sign. required? Is it required in all pleadings?
 For e.g SPOUSES as to their common A: NO, a certification against forum shopping is only
property Husband lang pumirma, hindi ung required in a 1) complaint 2) or other initatory pleading
wife, pwede na daw. Substantial compliance (e.g counterclaim, third-party complaint and cross-claim,
na because both of them are the petitioner for certiorari)
administrator of the common property.
 The contract is between the principal Q: Does a third party complaint require a certification
employer, and the OFW, Under the migrant against forum shopping?
act. Solidarily liable ang recruiter. Nagfile A: YES, because it is an initiatory pleading. In this case,
ang employee sa POEA, nanalo, nagappeal the plaintiff in a third party complaint is asserting its own
sa NLRC, nanalo parin si employee talo both claim.
recruiter and principal recruiter. Nagfile
ngayon ng certiorari, si recruiter lang
INITIATORY PLEADING, TO INITIATE, A PLEADING
pumirma, ung arabo na principal employer
hindi, nagfile ngayon ng motion to dismiss. THAT STARTS A CLAIM
HELD: Sabi ng SC, pwede na yan. May Q: Does an answer require a certification?
commonality. A: No, not an initiatory pleading, it is a
responsive/defensive pleading. An answer is merely for
the purpose of controverting a claim. Naumpisahan na ung
MARCOS-ARANETA v. CA, G.R. No. 154096 claim ng iba, ikaw, sumasagot nalang.
August 22, 2008 Q: Does a counter-claim require a certification?
A: If it is a permissive counterclaim, the lack of a
FACTS: Certification of non-forum shopping in a petitioner certificate of non-forum shopping is fatal. If it is a
for certiorari before the CA was only signed by only the compulsory counterclaim, the lack of a certificate of non-
daughter and not the mother. forum shopping is immaterial.

REMEDIAL LAW
CIVIL PROCEDURE
certificate of non-forum shopping is fatal. If it is a
COMPULSORY COUNTERCLAIM BASED ON compulsory counterclaim, the lack of a certificate of non-
MALICIOUS SUIT; NOT INITIATORY: INITIATED BY forum shopping is immaterial.
THE ORIGINAL COMPLAINT ITSELF, A REACTION
Illustrative case: COMMENT: If it is compulsory counterclaim, the initatory
Santo Tomas University Hospital v. Surla, G.R. No. pleading is always the complaint since under the rules, a
129718. August 17, 1998 compulsory counterclaim must always be raised in the
FACTS: Respondent spouses filed a complaint for answer. In other words, compulsory counterclaim is
obligatory. Under sec. 2 of rule 9, failure to raise a
damages against petitioner Santo Tomas University
compulsory counter claim or crossclaim shall be barred.
Hospital with the Regional Trial Court on an allegation by
Since your obliged to raise it there, it loses the character
the spouses that their son, Emmanuel Cesar Surla, while
of iniatory. The one that initiated is the complaint.
confined at the said hospital for having been born
prematurely, had accidentally fallen from his incubator
possibly causing serious harm on the child. Petitioner
PETITION FOR CERTIORARI, AN INITIATORY
hospital filed its Answer with Compulsory Counterclaim
PLEADING
asserting (i) that respondents still owed hospital bills for
Q: Is a certification against forum shopping required in a
Emmanuels confinement at the hospital and (ii) malicious
petition for certiorari?
prosecution. The counterclaim did not contain a
A: Yes becausea petition for certiorari is an intiatory
certification agains forum shopping, as a consequence,
pleading.
the respondents sought for its dismissal.
ISSUE: WON a certification against forum shopping is
TEST OF FORUM SHOPPING:
required in this counter claim.
Two kinds: 1) Litis pendentia 2) Res Judicata
HELD: The so called counterclaim of petitioner really
- Forum shopping is the act of litigant who
consists of two segregative parts: (1) for unpaid hospital repetitively avail judicial remedies in different for
bills of respondents son, Emmanuel Surla; and (2) as to increase his chances of obtaining
malicious prosecution. It is the malicious prosecution (not favourable decision.
the claim for hospital bills) which is not being initiatory in 1) Identity of parties
character. Since it is the complaint itself that precipitated 2) Identity of rights
the malicious prosecution, it is not initiatory. By the mere 3) Identity of reliefs prayed for
filing of the case, you cause the damage to the reputation 4) The identity involved that any judgment in
of the hospital, that is although compulsory, there is no one will constitute res judicata in one
need to file certification since it is not considered
inititatory. The claim under the malicious prosecution is VERIFICATION CERTIFICATION AGAINST
born out by the fact that plaintiff filed the malicious suit. NON-FORUM SHOPPING
Actually, the one that inititate the counterclaim alleging
malicious prosecution was the filing of the complaint. Had - A pleading is - A certification under
verified by an oath by the plaintiff or
it not been for the filing of the complaint, no counterclaim
affidavit that the principal party in the complaint
for malicious complaint would have been filed. The very affiant has read or other initiatory pleading
act which is considered malicious is the very act of filing the pleading asserting a claim or relief or in
the complaint. In which case, no need to have a and that the a sworn certification annexed
certification. The counterclaim is merely a reaction to the allegations thereto and simultaneously
filing of a complaint. But as to the claim for unpaid hospital therein are true filed therewith that:
bills, there must be a certifification. and correct of a) He has not
Q2: Is the claim for unpaid hospital bills, compulsory? his personal theretofore
A2: Yes, the four elements are present. The counterclaim knowledge or commenced any
arises out of or necessarily connected with the transaction based on action or filed any
or occurrence which is the subject of the plaintiff’s authentic claim involving the
complaint. The transaction in this case is the records. same issues in any
- The party need court, tribunal, or
hospitalization of the child.
not sign the quasi-judicial agency
verification. A and to the best of his
PERMISSIVE COUNTERCLAIM, LACK OF party’s knowledge, no such
CERTIFICATION, FATAL-ALWAYS REQUIRED; representative, other claim is
COMPULSORY COUNTERCLAIM, NON-FORUM lawyer or any pending therein;
SHOPPING IMMATERIAL person who b) If there’s such other
personally pending action or
Cruz-Agana v. Santiago-Lagman, G.R. No. 139018 knows the truth claim, a complete
, April 11, 2005 of the facts statement of the
alleged in the present status
HELD: The sole issue for resolution in the present case is pleading may thereof;
whether respondent's counterclaim is compulsory or sign the c) If he should
permissive. If it is a permissive counterclaim, the lack of a verification; thereafter learn that
- Requirement the same or similar

REMEDIAL LAW
CIVIL PROCEDURE
is formal not action or claim has of the certificate of
jurisdictional. been filed/pending, non-forum shopping
Absence he shall report that constitutes
fact w/in 5 days substantial
therefrom to the compliance with the
court wherein his Rules. (SAN
aforesaid complaint MIGUEL CORP vs
or initiatory pleading ABALLA)
has been filed.
- Such reqt applies
even to corporations
- GR: (1) lack of How do you allege?
certification is RULE 8
generally not curable MANNER OF MAKING ALLEGATIONS IN PLEADINGS
by the submission Section 1. In general. — Every pleading shall
thereof after the contain in a methodical and logical form, a plain, concise
fiiling of the petition;
and direct statement of the ultimate facts on which the
(2) certificate must
be signed by ALL party pleading relies for his claim or defense, as the case
THE may be, omitting the statement of mere evidentiary facts.
PLAINTIFFS/PETITI (1)
ONERS and the
signature of only one If a defense relied on is based on law, the pertinent
of them is provisions thereof and their applicability to him shall be
insufficient; clearly and concisely stated. (n)
- Where there are two Q: What must be the form?
or more plaintiffs or A: It must be in methodical and logical form
petitioners, a Q: What is the tenor?
complaint or petition
A: Must be plain, concise, direct statement of ultimate
signed by only one of
them is defective, facts.
unless he was ―Ultimate facts‖
authorized by his co-
Q: What is the test for determining the sufficiency of
parties to represent
the facts alleged in the complaint constituting
them and to sign the
certification, plaintiff‘s cause of action?
(LOQUIAS vs
A: The test applied to determine the sufficiency of the
OFFICE OF THE
OMBUDSMAN) facts alleged in the complaint constituting the cause of
XPN: substantial action is whether upon such facts a valid judgment may be
compliance under rendered against the defendant.
certain exceptional Q: When may the facts lead to a valid judgment
circumstances against the defendant?
(MEDISERV v INC.)
For e.g where the A: We go back to our understanding of what a cause of
petitioners filed a action is. What again is a cause of action? A cause of
collective action in action has been defined as the act or omission committed
which they share by the defendant in violation of the plaintiff’s right.
common interest in
its subject matter or - When we our discussing cause of action, we said
raise a common that there are three elements of a cause of
cause of action, action, namely, i) right of the plaintiff (e,g if the
certification by one right is based on a contract, then state it); ii) the
corresponding obligation on part of the defendant
of the petitioners
to respect plaintiff’s right; iii) the act or omission,
may be deemed
or the delict/wrong committed by the defendant in
sufficient. (ESPIRITU violation of the plaintiffs right.
vs PETRON) THEREFORE: To determine the sufficiency of the facts
- Given the collective alleged constituting the cause of action, the test is where
nature of the petition upon such facts a valid judgement may be rendered
(97 complainants)
against the defendant. And a valid judgement may be
raising one common
rendered against the defendant if there is an allegation of
cause of action, the
execution of only i) right, ii) obligation, iii) or act or omission.
three of them on
behalf of the others

REMEDIAL LAW
CIVIL PROCEDURE
―omitting the statement of mere evidentiary facts‖ Section 13. Alternative defendants. —
- Statement of evidentiary facts must be omitted Where the plaintiff is uncertain against who of
and likewise not argumentative several persons he is entitled to relief, he may
- Must only state ultimate facts constituting the join any or all of them as defendants in the
plaintiff’s cause of action. alternative, although a right to relief against one
may be inconsistent with a right of relief against
the other. (13a)
ALTERNATIVE CAUSES OF ACTION OR DEFENSES
e.g. kung di ka sigurado kung sino may
Section 2. Alternative causes of action or
kasalanan, if sumakay ka sa bus, tas
defenses. — A party may set forth two or more
nagkamishap. Sue ung bus (contract of carriage);
statements of a claim or defense alternatively or
or sue on the basis of quasidelict
hypothetically, either in one cause of action or defense or
in separate causes of action or defenses. When two or IF ONE STATEMENT IS SUFFICIENT, THE PLEADING
more statements are made in the alternative and one of IS NOT MADE INSUFFICIENT BY THE INSUFFICIENY
them if made independently would be sufficient, the OF THE ALTERNATIVE STATEMENT
pleading is not made insufficient by the insufficiency
Illustrative case:
of one or more of the alternative statements. (2)
Gatchalian v. Pavilin, G.R. No. L-17619. October 31,
1962
―A party may set forth two or more statements of a
FACTS: Petitioner Gatchalian claims to be the owner of a
claim or defense alternatively or hypothetically, either
tract of land consisting of three lots, and that portions
in one cause of action or defense or in separate
thereof were "by means of force, strategy and/or stealth,
causes of action or defenses‖
unlawfully entered" by herein defendants-appellants. In
- This applies not only to claims but ALSO TO their answer, appellants not only denied all the material
DEFENSES
facts and allegations of the complaint but also made
e.g. Defenses raised alternatively, although not
"Affirmative and Alternative Defenses" with"
consistent with one another. Like sinisingil ka
Counterclaim", with special emphasis on the fact that said
based on a promissory note, you may raise in the
Certificate of Title of petitioner is null and void ab initio, the
alternative that there was fraud, and in the
same being a forest land at the time it was allegedly
althernative, forgery.
bought by plaintiff. Furthermore, appellants claim in their
answer that "the alleged landholding and title of the
―When two or more statements are made in the
plaintiff could not have covered defendant’s landholding"
alternative and one of them if made independently
Defenses of Pavilin:
would be sufficient, the pleading is not made
1.Considered as Forest land(part of public domain),
insufficient by the insufficiency of one or more of the
The title null and void
alternative statements‖
2.Property of defendant not covered by plaintiff’s title
E.g. if plaintiff files for reconveyance of real
Upon motion of the plaintiff, the court below declared that
property, he based his claim on the fact that he
there was no genuine issue of fact in so far as the title to
bought the real property (right based on
the property was concerned, and granted summary
contract). However, in the alternative, he claims
judgment in her favor, ordering defendants to vacate the
that he inherited it from his parents. (based on
land.
inheritance). This is proper even if the claims are
ISSUE: WON the order of the lower court is correct
incompatible with each other.
HELD: NO, the Rules of Court specifically authorizes
the pleading of alternative or hypothetical defenses,
READ IN CONNECTION WITH JOINDER OF CAUSE OF
19 and such defenses may be inconsistent with each
ACTION (RULE 2, SEC.5) , AND
other provided each is consistent in itself
ALTERNATIVEDEFENDANTS (RULE 3, SEC. 16)
ALTERNATIVES MUST BE RAISED

SIMULTANEOUSLY IN THE ORIGINAL COMPLAINT;
19
Section 5. Joinder of causes of action. — A party may in one OTHERWISE THE OTHER MAY BE BARRED BY RES
pleading assert, in the alternative or otherwise, as many causes of JUDICATA
action as he may have against an opposing party, subject to the Illustrative case:
following conditions:
Marquez v. Valencia, G.R. No. L-7328, August 21, 1956
(a) The party joining the causes of action shall comply with the
rules on joinder of parties; FACTS: Appellee Vicente Valencia applied for the
(b) The joinder shall not include special civil actions or actions registration of two parcels of land, claiming that he had
governed by special rules; acquired title thereto because the Appellant spouses
(c) Where the causes of action are between the same parties Laureano Marquez and Eusebia Capiral had failed to
but pertain to different venues or jurisdictions, the joinder may be repurchase the parcels of land within the period of time
allowed in the Regional Trial Court provided one of the causes of action stipulated in a contract Pacto de Retro (first claim).
falls within the jurisdiction of said court and the venue lies therein; and
Appellant Laureano Marquez and Eusebia Capiral
(d) Where the claims in all the causes action are principally for
recovery of money, the aggregate amount claimed shall be the test of objected to the application claiming ownership over the
jurisdiction. (5a) land, and that the parcels of land were the subject of

REMEDIAL LAW
CIVIL PROCEDURE
litigation between them and the applicant then pending in setup lack of jurisdiction over the person. In summary,
another Court. Another civil case involves a consolidation it is our considered view, as we now so hereby express,
of title where Appellant Spouses claim that the pacto de that — (1) Jurisdiction over the person must be
retro sale is void and is merely an equitable mortgage. seasonably raised, i.e., that it is pleaded in a motion to
Ulmately, the SC held in the said other civil case that the dismiss or by way of an affirmative defense in an answer.
contract is equitable mortgage, and ordered the appellant Voluntary appearance (by filing counterclaim-affirmative
to pay the price. Because of that SC decision, the Appelle relief) shall be deemed a waiver of this defense. The
Valencia amended his application claiming that he assertion, however, of (other) affirmative defenses shall
acquired the lot by inheritance (second claim), that he had not be constructed as an estoppel or as a waiver of such
possessed the same as owner thereof. The trial court, in defense.; (2) Where the court itself clearly has no
the land registration case, dismissed the application for jurisdiction over the subject matter or the nature of the
registration filed by the respondent, on the ground of res action, the invocation of this defense may be done at any
judicata. The CA reversed, being of the opinion that the time. It is neither for the courts nor the parties to violate or
judgment in the other civil case did not bar the filing of an disregard that rule, let alone to confer that jurisdiction, this
amended application for registration because the rules matter being legislative in character. Barring highly
allow alternative causes of action. meritorious and exceptional circumstances, such as
ISSUE: WON the civil other case did not bar the filing of hereinbefore exemplified, neither estoppel nor waiver shall
an amended application for registration because the rules apply.
allow alternative causes of action.
HELD: NO, the second claim (inheritance) albeit not
consistent with the first claim (pacto de retro) should have FACTS THAT MAY BE THOSE WHICH MUST BE
been pleaded in the original pleading. The application of AVERRED GENERALLY? ALLEGED WITH
the rules on alternative action or defenses applies if PARTICULARITY
both defenses are raised in the original pleading, the
failure to raise the second claim of inheritance in the 1) Occurrence of 1) Circumstances
original pleading bars him now to amend his petition conditions precedent constituting fraud or
23
on the ground of res judicata. The defendant having – no need to state the mistake (Sec. 5) -
failed to set up such alternative defenses and chosen or factual circumstances sabihin mo kung pano
elected to rely on one only, the overruling thereof was a regarding the condition ka niloko, o kung
precedent that you’ve pano ka nagkamali.
complete determination of the controversy between the
undergone conciliation Wag mo lang sabihin
parties which bars a subsequent action based upon an
before Katarungang na ―he committed
unpleaded defense, or any other cause of action, except Pambarangay, and no fraud‖/‖there was
that of failure of the complaint to state a cause of action conciliation was arrived mistake‖
and of lack of jurisdiction of the Court at. Wag mo na sabihin 2) Capacity of party to
date of filing etc. (sec. sue or be sued,
20
IMPROPER VENUE/LACK OF JURISDICTION OVER 3, Rule 8) authority to sue, legal
PERSON MAY BE RAISED IN THE ALTERNATIVE 2) Exhaustion of existence of
WITH OTHER AFFRIMATIVE DEFENSES WITHOUT administrative association- (Sec.
24
WAIVING THE DEFENSE OF IMPROPER VENUE/ remedies – When do 4) — In otherwords,
IMPROPER SERVICE OF SUMMONS you consider the case facts showing capacity
quasi-judicial? In order of a person to sue, so
-under the old rules, improper venue may only be raised in
to exercise judicial sabihin mo dyan ―Juan
the motion to dismiss. You can’t raise it in the answer. And
power – the first dela cruz, of legal
if raised in the motion to dismiss, it must only be the sole requirement ACTUAL age‖/‖XYZ corp, with
ground. This is based on the ground that if you raised CONTROVERSY juridical personality‖
other grounds, or raised it in the answer, you are deemed For e.g COMELEC NOTE: If you are a
to have waived improper venue by asserting the exercising juridical foreign entity
jurisdiction of the court since you are also asking a ruling administrative function, suing under the
on the other grounds (e.g. prescription). no quasi-judicial isolated transaction
Illustrative case: power. But after rule. You must allege
La Naval Drug v. CA, G.R. No. 103200, August 31, 1994 election, there’s protest your juridical existence
and prove that you are
(may actual
ISSUE: whether or not the submission of other issues in a indeed a juridical
motion to dismiss, or of an affirmative defense (as
20
distinguished from an affirmative relief) in an answer, Section 3. Conditions precedent. — In any pleading a
would necessarily foreclose, and have the effect of a general averment of the performance or occurrence of all conditions
waiver of, the right of a defendant to set up the court's lack precedent shall be sufficient. (3)
23
Section 5. Fraud, mistake, condition of the mind. — In all
of jurisdiction over the person of the defendant.
averments of fraud or mistake the circumstances constituting fraud or
HELD: NO. the submission of other issues in a motion mistake must be stated with particularity. xxxx
24
Section 4. Capacity. — Facts showing the capacity of a party
to dismiss or of an affirmative defense (as
to sue or be sued or the authority of a party to sue or be sued in a
distinguished from an affirmative relief) in an answer, representative capacity or the legal existence of an organized
does not have the effect of a waiver of the right to association of person that is made a party, must be averred (4)

REMEDIAL LAW
CIVIL PROCEDURE
controversy na) person. Otherwise you - that D issued PN- existence
COMELEC upon cannot have access to - obligating himself to pay P1m, copy is
resolving the issue is phil. courts. Reason is attached – substance
now exercising quasi- that the court would 2. VERBATIM COPY: said copy may with like
judicial functions. not take judicial notice effect be set forth in the pleading-the document
3) Malice, intent, of the existence of that is reproduced in the pleading itself-copy it in the
knowledge, or other juridical corp. pleading verbatim- copy attached becomes part
conditions of mind- 3) Issue as to the legal of the pleading
Bad Faith yan, ill intent, existence, capacity to - D issued PN then copy the PN verbatim
he acted maliciously, sue or be sued in a
Insane (wag mo na representative CONTESTING THE GENUINESS AND DUE EXECTION
sabihin kung bakit capacity, shall do so
OF AN ACTIONABLE DOCUMENT; EFFECT OF
insane, na by specific denial.
(Sec. 4, Rule 8)
25 FAILURE TO CONTEST IS AN ADMISSION THEREOF
nagsasayaw pa sya sa
-so sabihin mo, no Section 8. How to contest such documents. —
full moon) (Sec 5, Rule
8)
21 capacity to sue kasi When an action or defense is founded upon a written
4) Judgment/Decision - minor yan, and he was instrument, copied in or attached to the corresponding
without setting forth born on this date. pleading as provided in the preceding section, the
jurisdiction don’t say genuineness and due execution of the instrument shall be
that under B.P 129, it deemed admitted unless the adverse party, under oath
has jurisdicition to hear specifically denies them, and sets forth what he claims to
the case. (Sec. 6, Rule
22 be the facts, but the requirement of an oath does not apply
8)
when the adverse party does not appear to be a party to
the instrument or when compliance with an order for an
inspection of the original instrument is refused. (8a)
ACTIONABLE DOCUMENT
Q: How shall the adverse party contest the the genuiness
Section 7. Action or defense based on and due execution of the document? and effect of failure
document. — Whenever an action or defense is based to contest it and the manner provided by the rules ?
upon a written instrument or document, the substance of
such instrument or document shall be set forth in the A: The adverse party, under oath, must specifically
pleading, and the original or a copy thereof shall be deny them, AND set forth what he claims to be the facts
attached to the pleading as an exhibit, which shall be i. Under oath
deemed to be a part of the pleading, or said copy may with Q: In what cases when a simple specific
like effect be set forth in the pleading. (7) denial not under oath is sufficient to contest
Q: What is an actionable document? the genuiness and due execution of the
A: Actionable document is one which is the very basis actionable document?
of the cause of action or defense. The document is the A: INSTANCES where mere denial w/o
very basis of his right (cause of action) or defense. OATH is sufficient:
(1) Adverse party is not a party to the
Q: How shall an actionable document pleaded? instrument
(2) Compliance with an order for
TWO WAYS inspection of the original
instrument is refused
1. SUBSTANCE+ATTACHMENT:the substance of
ii. Specifically deny
such instrument or document shall be set forth
in the pleading, AND the original or a copy iii. Set forth the facts
thereof shall be attached to the pleading
- state its EXISTENCE and substance EFFECT of failure to deny it in such manner: the
and ATTACH AS AN EXHIBIT (i)genuineness AND (ii) due execution (ONLY) shall be
admitted.
21
e.g. if he only complies with specific denial but not under
Section 5. Xxx condition of the mind. — xxx. Malice, intent, oath, he is deemed to have admitted the But note the
knowledge, or other condition of the mind of a person may be averred
generally exceptions, viz., i) adverse party is not a party;ii)
22
Section 6. Judgment. — In pleading a judgment or decision compliance with oder to inspect is refused.
of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a
board or officer, it is sufficient to aver the judgment or decision without ―the genuineness and due execution of the instrument
setting forth matter showing jurisdiction to render it. (6) shall be deemed admitted‖
25
Section 4 –xxx A party desiring to raise an issue as to the legal
Q: What are the facts admitted by a party who fails to
existence of any party or the capacity of any party to sue or be sued in a
representative capacity, shall do so by specific denial, which shall contest the actionable document?
include such supporting particulars as are peculiarly within the A: The genuiness and due execution ONLY.
pleader's knowledge.

REMEDIAL LAW
CIVIL PROCEDURE
―Genuineness and due execution‖ for him with his authority;
Q: What are the facts deemed admitted? - admits that he signed it. The signature is
A: The admission of the genuineness and due execution not a forgery
of an instrument means: - if signed by a respresentaive, such other
1. that the party whose signature it bears admits person is really authorized
that he signed it or that it was signed by another 2. that at the time it was signed it was in words and
for him with his authority; figures exactly as set out in the pleading of the
- admits that he signed it. The signature is party relying upon it;
not a forgery - figures and words appearing thereon
- if signed by a respresentaive, such other are what they purport to be
person is really authorized - pag sinabing 1k , 1k yan, di 100k
2. that at the time it was signed it was in words and 3. that the document was delivered; and
figures exactly as set out in the pleading of the 4. that any formal requisites required by law,
party relying upon it; such as a seal, an acknowledgment, or revenue
- figures and words appearing thereon stamp, which it lacks, are waived by him.
are what they purport to be NOTE: The admission of genuiness and due execution
- pag sinabing 1k , 1k yan, di 100k, only relates to these four facts.
nafalsified, dinagdagan ng zero, if
nagfail to specifically deny under oath, DEFENSES NOT ALLOWED: Hence, such defenses as
you can no longer prove the falsification i. that the signature is a forgery; or
3. that the document was delivered; and ii. that it was unauthorized, as in the case of an
4. that any formal requisites required by law, agent signing for his principal, or one signing in
such as a seal, an acknowledgment, or revenue behalf of a partnership, or of a corporation; or
stamp, which it lacks, are waived by him. iii. that, in the case of the latter, that the corporation
NOTE: The admission of genuiness and due execution was not authorized under its charter to sign the
only relates to these four facts. Exclusive list. instrument; or
iv. that the party charged signed the instrument in
some other capacity than that alleged in the
DEFENSE OF ILLEGALITY OF CONSIDERATION IS A
pleading setting it out; or
MATTER NOT INCOSISTENT WITH GENUINESS AND
v. that it was never delivered are cut off by the
DUE EXECUTION. HENCE, NOT BARRED; admission of its genuineness and due execution.
Illustrative cases: DEFENSES NOT BARRED: But we have held that the
Hibberd v. Rohde, G.R. No. 8418. December 9, 1915 section is not applicable to:
i. the indorsement on a promissory note in a suit
FACTS: Hibberd a suit on a promissory note against the
against the maker;
makers. Only one of them, the defendant Rohde, ii. nor against the heirs of a decedent who signed a
appeared and answered. Defendant did not enter a document declared upon
verified specific denial of the genuineness and due iii. the defense of want of consideration.
execution of the note. The defense of Rohde is the iv. the defense of illegality of consideration.
illegality of the consideration. The plaintiff claims that v. the date of delivery or the circumstances of the
defendants’ special defense of illegality of consideration is signing as bearing on any defenses dependent
cut off since there is now an admission of genuiness and on time in any way.
due execution of the document.
LACK OF CONSIDERATION IS NOT INCONSISTENT
ISSUE: WON defendant Rohde may no longer invoke the WITH GENUINESS AND DUE EXECUTION
illegality of consideration due to his failer to specifically Illustrative case:
deny under oath the due execution and genuiness of the BOUGH vs CANTIVEROS, G.R. No. 13300
promissory note. September 29, 1919
HELD: NO. The special defense interposed by the FACTS: Matilde Cantiveros was the owner of various
defendant of illegality of consideration is not barred by parcels of realty. Matilde Cantiveros and her husband
his failure to enter a verified denial of the genuineness Jose Vasquez, signed a marital contract of separation. At
and due execution of the note set out in the complaint. this time there lived with Matilde Cantiveros, Basilia
The defense of illegality of consideration does not relate to Hanopol, a cousin and protege since childhood, who was
genuiness and due execution; hence, not inconsistent with married to Gustavus Bough. For this reason, Gustavus
genuiness and due execution. Bough was regarded by Matilde Cantiveros with great
confidence, even as her child. Through the influence of
―Genuineness and due execution‖
Gustavus Bough, who brought a story to Matilde
Q: What are the facts deemed admitted? Cantiveros that her husband Jose Vasquez was in town
and might contest the contract for the separation of the
A: By the admission of the genuineness and due conjugal property, Matilde Cantiveros was induced to sign
execution of an instrument is meant that: a fictitious contract of sale of all her property to Basilia
1. that the party whose signature it bears admits Bough. In order to reassure Matilde Cantiveros that they
that he signed it or that it was signed by another would not take advantage of the fictitious sale, Gustavus

REMEDIAL LAW
CIVIL PROCEDURE
Bough and Basilia Bough prepared and signed a return Toribio v. Bidin, G.R. No. L-57821, January 17, 1985
document, which is a donation by them to Matilde FACTS: There was a property inherited by 8 children. It
Cantiveros of all the property, to be effective in case of the would appear that the share of 3 heirs were now sold by
death of themselves and their children before the death of one of the brothers to a third person (defendant in this
Matilde Cantiveros. The defendant, Matilde Cantiveros, case). The said 3 heirs now sued the defendant alleging
has remained in possession of the property. Thereafter, that their shares had never been sold nor in any wise
plaintiffs Basilia Bough and Gustavus Bough sought to transferred or disposed to others. In their answer, the
have themselves put in possession of the property. defendants-respondents alleged that the shares of
Matilde Cantiveros answered with a general denial and a plaintiffs-petitioners had likewise been sold to Dionisio
special defense, not sworn to (Not under oath), in which Toribio, the brother of the 3, who, in turn, sold the same to
she asked that judgment be rendered declaring the Juanito Camacho and Dalmacio Ramos. (2 sales) The
contract of sale theretofore made between herself and alleged sale (sale1) from petitioners to Dionisio and the
Basilia Bough null. During the trial, defendant Matilde was sale (sale2) from Dionisio to the respondents were
called to testify that the sale was a fictitious sale. The evidenced by deeds of sale, xerox copies of which were
plaintiffs now objected to the presentation of Matilde to appended to and made an integral part of the respondents'
testify that the sale was fictitious on the ground that partition agreement between the respondents and also a
Matilde admitted the genuiness and due execution of the xerox copy of the respondents' transfer certificates of title.
actionable document by failing to deny the same under While testifying during the trial, Eusebia Toribio (one of the
oath. plaintiffs, one of the one who allegedly sold the land to the
ISSUE: Can Matilde still testity that the sale was fictitious other brother) was asked whether she executed any sale
notwithstanding the admission of the due execution and of her share in the parcel of land in litigation to the brother.
genuiness of the sale? The counsel for private respondents objected, raising the
HELD: YES. The defense that the sale is fictious, that proper mode of contesting the genuineness of an
there was no consideration, and that there was fraud are actionable document since there was no reply made.
not inconsistent with the admission of the due execution The trial court sustained the objection. It must be noted
and genuiness of the actionable document. that in this case, one of the plantiffs is merely the heir of
REITERATION: Failure to make specific denial under the one who sold the property.
oath results in technical admission of the ff: ISSUE1: whether or not the deeds of sale allegedly
1. The signature appearing thereon is the signature of executed by the petitioners in favor of their brother
the party who signed it was genuine or if it be signed Dionisio Toribio and appended to the respondents' answer
by a representative, such representative was duly are merely evidentiary in nature or the very foundation of
authorized their defense which must be denied under oath by the
2. That the words and figures appearing in the document petitioner.
are what as it purports to be HELD1: No, they are actionable documents since they are
3. That document was delivered – that iit was duly the very basis of the defense of the defendants in this
executed in accordance with law by the parties case.
4. That the formal requisites required by law (for e.g ISSUE2: WON the rules on actionable document applies
seal, doc stamp, duly notarized) are deemed to be only to the complaint. The deed of sale executed by the
waived petitioners in favor of their brother Dionisio is an essential
In other words, anything that is inconsistent with these four and indispensable part of their defense to the allegation
are deemed admitted. that the petitioners had never disposed of their property.
HELD2: NO, the rules on actionable document applies
ACTIONABLE DOCUMENT MAY BE FOUND NOT also when it is the very basis of the defense
ONLY IN THE COMPLAINT BUT ALSO IN THE ISSUE3: WON the order of the trial court sustaining the
ANSWER; REPLY IS MANDATORY WHEN THE VERY objection is correct
BASIS OF THE DEFENSE IN AN ANSWER IS BASED HELD3: NO. One of the exceptions to the oath
ON AN ACTIONABLE DOCUMENT requirement under the rules on actionable document is
- Generally, reply is not mandatory when the adverse party is not a party in the document. the
- In case of failure to make a reply, all the new heirs of Olegario Toribio, his widow and minor children
matters raised in the answer are deemed represented by their mother, are among the plaintiffs-
controverted. petitioners. They are not parties to the deeds of sale
- However, where the answer is based on an allegedly executed by their father, aunt, and uncle. They
actionable document, if you want to question its are not required to deny the deeds of sale under oath. The
genuiness and due execution, that is one of the private respondents will still have to introduce evidence to
rare instance when a reply becomes mandatory. establish that the deeds of sale are genuine and that they
Otherwise, the effect is an admission. The reply were truly executed by the parties with authority to dispose
should also have been verified. of the disputed property. It bears repeating that rules of
Illustrative case:

REMEDIAL LAW
CIVIL PROCEDURE
procedure should be liberally construed to the end that prove that Mrs. Mesa had no authority to issue a
substantial justice may be served surety bond. Hence, Hodges must be deemed to have
COMMENT: Ang nagtetestify dito, party sa document, waived the benefits of said rule and petitioner herein
pero since of the the plaintiffs was not a signatory, it will cannot be held liable in excess of the sum of
be unjust for him if toribio would be excluded. Kaya nga in P8,000.00.
the interest of justice nalang.
TECHNICAL ADMISSION IS DEEMED WAIVED IF Jabalde v. PNB, G.R. No. L-18401, April 27, 1963
PRESENTATION OF EVIDENCE IS NOT OBJECTED TO FACTS: Plaintiff-appellant Perfecto Jabalde seeks
; NO DEEMED ADMISSION ON THE PART OF THE recovery of P10,000.00 allegedly deposited by him with
OTHER PARTY WHO PRESENTED EVIDENCE the defendant-appellee Philippine National Bank,
Illustrative cases: P5,000.00 in genuine Philippine currency on 21 July 1941
and another P5,000.00 on 30 August 1943 in mixed
Central Surety vs Hodges, G.R. No. L-28633, March 30,
1971 genuine Philippine currency and Japanese military notes.
FACTS: Certain lots had been sold by C. N. Hodges to The complaint recites the printed wording of plaintiff's
Vicente M. Layson, payable on installments. In order that passbook, and allegedly reproduces page one thereof,
Layson could use said lots as security for a loan he reciting it to be as follows:
intended to apply from a bank, Layson persuaded Hodges ―Philippine National Bank
to execute in his (Layson's) favor a deed of absolute sale Manila, Philippines
over the properties, with the understanding that he would in account with
put up a surety bond to guarantee the payment of said July 21, 1941 P5,000.00
balance. Accordingly, on the date above-mentioned, AUG. 30, 1943 5,000.00‖
Layson executed, in favor of Hodges, a promissory note. The defendant's answer was not under oath, and admits
To guarantee the same, the Central Surety executed in the making of the foregoing deposits, but denies the dates
favor of Hodges the surety bond through Mrs Mesa, the of deposit, alleging as the true dates 21 July 1944 and 30
manager. When Layson defaulted in the discharge of his August 1944, and avers that the entries in the passbook
aforesaid obligation, Hodges demanded payment from
as to the deposit dates were "knowingly, unlawfully and
Central Surety, which, despite repeated extensions of time
maliciously" altered by the plaintiff; and that the deposits
granted thereto, at its request, failed to honor its
were all in Japanese military notes not genuine ph
commitments under the surety bond. Accordlingly, Hodges
commenced the present action against Layson and currency
Central Surety, to recover from them the amount. In his ISSUE: whether the bank's failure to deny under oath the
answer to the complaint, Layson admitted the formal entries in the passbook as "copied" in the complaint
allegations and denied the other allegations thereof. In its constitutes an admission of the genuineness and due
answer, Central Surety disclaimed liability under the surety execution of the document.
bond in question, upon the ground (a) that the same is null HELD: NO. Ordinarily, such failure is an admission.
and void, it having been issued by Mrs. Rosita Mesa after However, this rule cannot apply in the present case
her authority therefor had been withdrawn and had because the plaintiff introduced evidence purporting
expired; (b) that even under her original authority Mrs. to support his allegations of deposit on the dates he
Mesa could not issue surety bonds in excess of P8,000.00 wanted the court to believe, AND offered no objection
without the approval of petitioner's main office which was during the trial to the testimonies of defendant's
not given to the surety bond in favor of Hodges. In other witnesses and documentary evidence showing
words, the defense was lack of authority on the person to
different dates of deposit. By these acts, the plaintiff
sign the document. Nonetheless, the answer was not
waived the defendant's technical admission through
verified or under oath. During the trial, Central Surety
failure to deny under oath the genuineness and due
presented evidence to establish that the manager had no
authority to sign the document. execution of the document.
ISSUE1: Was there an admission of the genuiness and
due execution of the actionable document?
HELD1: Yes, since the answer was not verified CONTESTING ACTIONABLE DOCUMENT; REASON
ISSUE2: Can central surety still invoke lack of authority of FOR THE RULE. — As early as Lim-Chingco v. Terariray
the manager to sign (5 Phil. 120), this Court gave the reason for the rule on
HELD2: Yes. In this case, where a case has been tried in contesting actionable documents. The purpose of the
complete disregard of the rule and the plaintiff having enactment (sec. 103) appears to have been to relieve a
pleaded a document by copy, presents oral evidence to party of the trouble and expense of proving in the first
prove the due execution of the document as well as the instance an alleged fact, the existence or non-existence of
agent's authority and no objections are made to the
which is necessarily within the knowledge of the adverse
defendant's evidence in refutation, the rule will be
party, and of the necessity (to his opponent's case) of
considered waived. Hodges had neither objected to the
establishing which such adverse party is notified by his
evidence introduced by petitioner herein in order to
opponent's pleading. As stated earlier, the reason for the

REMEDIAL LAW
CIVIL PROCEDURE
rule is to enable the adverse party to know beforehand REITERATION: LACK OF KNOWLEDGE SUFFICIENT
whether he will have to meet the issue of genuineness TO FORM A BELIEF MAY ONLY BE INVOKED IF THE
or due execution of the document during trial. (In re DEFENDANT IS NOT IN THE POSITION TO KNOW THE
MATERIAL ALLEGATIONS; THE PARTY MUST NOT
Dick's Estate, 235 N.W. 401). While mandatory, the rule is
BE EXPECTED TO KNOW
a discovery procedure and must be reasonably construed Illustrative case:
to attain its purpose, and in a way as not to effect a denial Capitol Motors v. Yabut, G.R. No. L-28140, March 19,
of substantial justice. The interpretation should be one 1970
which assist the parties in obtaining a speedy, FACTS: Capitol Motors Corporations filed a complaint
inexpensive, and most important, a just determination of against respondent Yabut. It was therein averred that the
the disputed issues. defendant executed in favor of the plaintiff a promissory
note; that the defendant defaulted in the payment, and
likewise failed to pay the interest due on the promissory
REITERATION: Q: What is meant by due execution note; and that in spite of demands by the plaintiff, the
and genuineness? defendant failed and refused to pay the said principal sum
and interest due. Prayer was made that the defendant be
A: The genuineness and due execution of a written ordered to pay the plaintiff. The defendant filed an answer
instrument, properly pleaded, is deemed admitted which reads: ―DEFENDANT through counsel alleges: 1.
unless the plaintiff or defendant, as the case may be, Paragraph 1 of the complaint is admitted. 2.Paragraphs 2,
shall specifically deny the same under oath. The 3, 4, 5, 6 and 7 of the complaint are specifically denied for
phrase "genuineness and due execution of the instrument" lack of knowledge sufficient to form a belief as to the truth
means nothing more than that the instrument is not thereof.WHEREFORE, it is respectfully prayed that the
spurious, counterfeit, or of different import on its face Complaint be dismissed with costs against the plaintiff.‖
from the one executed. Thereafter, plaintiff filed a motion for judgment on the
pleadings, on the ground that the defendant, not having
The failure of the party to file an affidavit denying the set forth in his answer the substance of the matters relied
genuineness and due execution of the document does upon by him to support his denial, had failed to deny
not estop him from controverting it by evidence of specifically the material allegations of the complaint,
fraud, mistake, compromise, payment, statute of hence, must be deemed to have admitted them.
limitations, estoppel, and want of consideration. ISSUE: WON it proper to render a judgment on the
(Bough vs Cantiveros) pleadings
HELD: YES. The answer that the defendant has no
SPECIFIC DENIAL knowledge or information sufficient to form a belief as to
the truth of an averment and giving such answer the effect
Sec 10 Specific Denial - A defendant must : of a denial, does not apply where the fact as to which
want of knowledge is asserted, is so plainly and
1) Specify each material allegation of fact the truth of
necessarily within the defendant's knowledge that his
which he does not admit and, whenever practicable, shall averment of ignorance must be palpably untrue.
set forth the substance of the matters upon which he relies COMMENT: You can invoke the third mode only if you are
to support his denial (not enough that you deny-must also expected to not to know the material allegations. If you are
state the basis of denial, otherwise general denial, reasonably expected to know the material allegations then
deemed admitted). you invoke lack of knowledge, that would be deemed an
admission. Dapat, ang sinabi ni mr. yabut ay he did not
2.) Where a defendant desires to deny only a part of an
buy a car. Kung bumili siya ng sasakyan, kung nagissue
averment, he shall specify so much of it as is true and
sia ng PN, kung nagbayad ba siya, he is reasonably
material and shall deny only the remainder. (not enough expected to know such fact.
that you deny-must also state the basis of denial,
NOTE: Claim of ignorance palpably false- if you are
otherwise general denial, deemed admitted).
expected to know something- denial is a general
3) Defendant is without knowledge or information sufficient admission of material averments
to form a belief as to the truth of a material averment
made in the complaint, he shall so state, and this shall
have the effect of a denial. Q: What happens if the answer does not make
specific denial in accordance with Sec 10?
MATERIAL MATTERS NOT SPECIFFICALY DENIED, A: Under Sec 11, Material averments in the complaint
DEEMED ADMITTED; TECHNICAL ADMISSION; XPN: shall be admitted when not specifically denied.
AMOUNT OF UNLIQUIDATED DAMAGES; EXCEPT: the amount of unliquidated damages
Section 11. Allegations not specifically denied  What are unliquidated damages? A: Those
deemed admitted. — Material averment in the complaint, which have not yet proven; those which are
other than those as to the amount of unliquidated not yeat ascertained.
damages, shall be deemed admitted when not specifically  Ung mga actual damages, may mga resibo,
denied. Allegations of usury in a complaint to recover liquidated
usurious interest are deemed admitted if not denied under  Pero mga moral damages, unascertainable,
oath. (1a, R9) no proof yet.

REMEDIAL LAW
CIVIL PROCEDURE
―Allegations of usury in a complaint to recover to “an unwarranted adverse claim of rights of
usurious interest are deemed admitted if not denied ownership and possession by defendant” was
under oath.‖ followed by an allegation of how such claim was
Q: If the allegations of usury are in the answer, is exercised and the defendant‟s denial is as to the
a reply mandatory, in order to contest the material averment contained in par 4 of the
allegation of usury? complaint conjoined with his disclaimer of
A: NO dominical or possessory rights in the manner
- The present rules now provide that those
alleged I the complaint, such denial is negative
admitted are only those allegations of usury
IN THE COMPLAINT not denied under oath. pregnant equivalent to hi admission. GALOFA vs
No longer allegations of the complaint in an NEE BON SING)
answer.
- The allegation is for the purpose of - Another e.g P filed collection of money to D.
RECOVERING usurious interest and not Defendant answered denial but argue that he
REPELLING usurious interest. wasn’t able to pay because of failure to collect
- Hence, there is now only one instance when
receivables.
reply is mandatory, that is, when the answer
is based on an actionable document.
TUMANG vs BAUTISTA
STRIKING OUT MATTERS IN THE PLEADING Is Tagalog allowed as a proper form in pleadings? NO.
Section 12. Striking out of pleading or matter
contained therein. — Upon motion made by a party Usually CA rendered their decisions in Tagalog specially
before responding to a pleading or, if no responsive those in Tagalog-speaking provinces.
pleading is permitted by these Rules, upon motion
made by a party within twenty (20) days after the service H: The language of the law is still the English language.
of the pleading upon him, or upon the court's own initiative
at any time, the court may order any pleading to be RULE 9
stricken out or that any sham or false, redundant, EFFECT OF FAILURE TO PLEAD
immaterial, impertinent, or scandalous matter be stricken OMNIBUS MOTION RULE
out therefrom. (5, R9) Section 1. Defenses and objections not pleaded. —
Defenses and objections not pleaded either in a motion to
Upon motion made by a party: dismiss or in the answer are deemed waived. However,
i. before responding to a pleading when it appears from the pleadings or the evidence on
ii. if no responsive pleading is permitted by record that the court has no jurisdiction over the subject
these Rules (e.g. in a reply, no more response to
matter, that there is another action pending between the
a reply) – motion within 20 days from service of
same parties for the same cause, or that the action is
the pleading.
iii. upon the court's own initiative at any time barred by a prior judgment or by statute of limitations, the
-not bound to the 20 day period, ―at any time‖ court shall dismiss the claim. (2a)
- In relation to motion to quash. (Rule 117, Sec. 9)
NOTE: The court may order any pleading to be stricken ―Section 9. Failure to move to quash or to allege
out or that any sham or false, redundant, immaterial, any ground therefor. — The failure of the accused to
impertinent, or scandalous matter be stricken out assert any ground of a motion to quash before he
pleads to the complaint or information, either because
therefrom.
he did not file a motion to quash or failed to allege the
same in said motion, shall be deemed a waiver of
any objections except those based on the grounds
NEGATIVE PREGNANT provided for in paragraphs (a), (b), (g), and (i) of
- DEFINITION: Where a fact I alleged with some section 3 of this Rule. (8)‖
qualifying or modifying language, and the denial - (a) That the facts charged do not constitute an
is conjucntive a negative pregnant exists and offense; (b) That the court trying the case has no
only he qualfiication or modification is denied, jurisdiction over the offense charged; (g) That the
while the fact itself is admitted. Although you criminal action or liability has been extinguished [you
can only pardon after conviction]; and (i) That the
deny, it is pregnant with admissions.
accused has been previously convicted or acquitted
- e.g Allegations in the answer, defendant alleged of the offense charged, or the case against him was
that he never asserted ownership of the property dismissed or otherwise terminated without his express
nor he claimed any possessory right thereon. consent.
Where the fact is alleged in modifying clause and  These may be raised even after the plea has
denial is conjuctive, there exists negative been entered. Even if not raised in a motion
pregnant, the claim of ownership is admitted. to quash.
Where the plaintiffs allegation of his inability to
―Defenses and objections not pleaded either in a
take actual possession of the parcel of land due
motion to dismiss or in the answer are deemed

REMEDIAL LAW
CIVIL PROCEDURE
waived. However, when it appears from the pleadings provides that "defenses and objections not pleaded in the
or the evidence on record that the court has no motion to dismiss or answer are deemed waived." The
jurisdiction over the subject matter, that there is judge sustained the motion and absolved defendants.
another action pending between the same parties for
the same cause, or that the action is barred by a prior ISSUE: WON the defense of prescription may stilll be
judgment or by statute of limitations, the court shall plead despite the failure to plea the same in the answer
dismiss the claim.‖
HELD: Yes. It is true that the defense of prescription can
‖
only be considered if the same is invoked as such in the
GENERAL RULE: Defenses and objections not pleaded
answer of the defendant and that in this particular instance
either in a motion to dismiss or in the answer are deemed
no such defense was invoked because the defendants
waived.
had been declared in default, but such rule does not
- Not pleaded in either:
obtain when the evidence shows that the cause of
i. Motion to dismiss
action upon which plaintiff's complaint is based is
ii. Answer
already barred by the statute of limitations. Athough
 To controvert the issues raised in the
complaint, counterclaim, crossclaim or such defense was not raised in the answer, where
th
third party (4 party) complaint, party-in plaintiff's own allegation in the complaint shows
intervention. clearly that the action had prescribed. Such
- If not raised, deemed waived. circumstance removes this case from the rule under Sec.
2, Rule 9 regarding waiver of defenses by failure to plead
XPNS: When it appears from the face of the pleadings the same.
or the evidence on record that:
i. The court no jurisdiction over the subject
matter
PRESCRIPTION; DAMAGES BASED ON TORT. —
ii. litis pendentia
iii. barred by res judicata Actions for damages arising from tort prescribe in four (4)
iv. Statute of limitations (Prescription) years.
NOTE: In these excpetions, the court shall dismiss the
claim even without a motion. EVEN IF NOT RAISED BY
ESCOLIN: andun na nakatatak sa complaint na ganito
THE DEFENDANT
ngyari – klaro naman
THE WAIVER APPLIES ONLY TO PRESCRIPTION
THAT WOULD RAISE ISSUES OF FACT NOT GARCIA vs MATHIS, G.R. No. L-48577, September
APPEARING UPON THE PLEADING, THAT IS, WHEN 30, 1980
PRESCRIPTION IS NOT APPARENT THEREIN FACTS: Complaint against Co. Mathis (Base
Illustrative cases: Commander) Complainant alleged that he was allegedly
illegaly dismissed from the job on 1956 and therefore
FERRER vs ERICTA, G.R. No. L-41767, August 23, prayed for his reinstatement and backwages. His
1978 (Vicarious liability) complaint was failed on 1977, or 21 years after cause of
action accrued. However, defendant filed special
FACTS: On January 26, 1975 (date of filing of action-
appearance for motion to dismiss on the gorund of lack of
nakatatak to sa pleading, pag nagfile), plaintiff-spouses
and their daughter sued defendant-spouses and their 16- jurisdicition over his person invoking that this is a suit
year old son for damages arising from an accident that against the state(non-suability). This is the only issue
occurred on December 31, 1970. The complaint alleged raised in the motion. However, the judge dismiss on the
that the defendants recklessly drove a car causing it to ground of prescription. Complainant attacked the order
overturn, resulting in physical injuries on plaintiffs' because the dismissal was not based on the allegations
daughter who was a passenger therein. Defendant raised in the motion to dismiss.
answered that their son exercised due care in driving the HELD: It is true that an action will not be held to have
car and that plaintiffs' daughter was not a passenger but prescribed if prescription is not expressly invoked.
merely a joy rider. Defendants were declared ―as in However there are exceptions to this rule and one of
default‖ for failure to attend the pre-trial. them is when the plaintiff's own allegations in his
complaint show clearly (APPARENTLY) that the action
Respondent Judge rendered judgment against private
respondents. Subsequently, defendant filed a motion for has prescribed. In this case the complaint shows clearly
reconsideration on the ground that the action has that the plaintiff's action had prescribed for he alleged that
prescribed. ―that tile complaint shows on its face "that it he was removed on August 23, 1956 (par. 5) but the case
was filed only on January 6, 1975, or after the lapse of was filed only on November 18, 1977, after a lapse of
MORE THAN FOUR YEARS from the date of the accident more than 21 years. Prescinding, therefore, the defense of
on December 31, 1970", likewise appearing from the jurisdiction which is apparently meritorious, the complaint
complaint and, therefore, the action has already was properly dismissed.
prescribed under Article 1146 of the Civil Code‖.Plaintiffs Rule that an action does not prescribe if prescriprtion is
opposed the motion, invoking Section 2, Rule 9 which not expressly invoked does not apply where the

REMEDIAL LAW
CIVIL PROCEDURE
allegations in the complaint clearly show that the prescription even if not raised in a motion to dismiss or in
action had already long prescribed. the answer, is not deemd waived unless such defense
raises issues of fact not appearing upon the preceding
CHUA LAMKO vs DIOSO, G.R. No. L-6923 pleading.
October 31, 1955 NOTE: A judgement also prescribes- ten years.
Preliminaries: we were saying that under sec. 1, one of
the defenses which may be belatedly raised is
prescription, but what kind of prescription?
FACTS: In March 1939, Chua Lamko obtained judgment DIRECTOR OF LANDS vs CA
to foreclose the mortgage debt of Eligio Dioso FACTS: Sps Manlapaz filed an application for registration
(predecessor of the plaintiffs). Pursuant to the judgment, of parcels of land. The director of lands, the only oppositior
the mortgaged property was accordingly sold by the appealed. In its appeal, it adduced for the first time the
Sheriff, at public auction, to Chua Lamko as the highest defense of res judicta, that the same land was already
bidder; but he never obtained judicial confirmation of the subject for adjudication declaring it is a public land.
26
sale. He took possession of the property, and in 1946 HELD: The defense of res judicata not set up is deemed
sold it to defendants in this case. On February 22, 1950 waived. It can no longer be pleaded in trial or appeal
plaintiffs instituted this action to recover the mortgaged because it does not appear on the pleading or record of
property, alleging ownership and nullity of the sale to Chua the case.
Lamko and of the subsequent conveyance to the
defendants. Chua Lamko, as a third-party defendant, COMPULSORY COUNTERCLAIM OR CROSS-CLAIM
interposed by way of counterclaim against plaintiffs the NOT SET UP, BARRED
judgment he had obtained in the foreclosure sale if
plaintiffs persisted in their refusal to validate the Section 2. Compulsory counterclaim, or cross-
foreclosure sale. The Court dismissed Chua Lamko's claim, not set up barred. — A compulsory counterclaim,
counterclaim on the ground that it had already prescribed or a cross-claim, not set up shall be barred. (4a)
for the reason that the judgment in the foreclosure sale
COMPULSORY COUNTER CLAIM or CROSS-CLAIM
had been entered in 1939 and more than ten years had
already lapse it being already 1950. Chua Lamko insisted GR: Sec 2 A compulsory counterclaim, or a cross-
on his counterclaim that prescription had been waived by claim, not set up shall be barred.
plaintiffs for failure to allege the same in their answer to
- judicial policy against multiplicity of suits- splitting
his counterclaim in the CFI. of a single cause of action
ISSUE: WON plaintiffs are deemed to have waived the
defense of prescription ELEMENTS OF COMPULSORY COUNTERCLAIM
HELD: NO. It is true that if the defense of prescription is (1) it arises out of, or is necessarily connected with the
not raised in the answer it is deemed waived. But the transaction or occurrence that is the subject matter of the
waiver applies only to defenses of prescription "that opposing party's claim;
would raise issues of fact not appearing upon the (2) it does not require for its adjudication the presence of
preceding pleading." In the present case, the plaintiffs third parties over whom the court cannot acquire
were not required to specifically plead prescription, jurisdiction; and
because the pleading of Chua Lamko disclosed that (3) the court has jurisdiction to entertain the claim.
the judgment had been rendered in March 7, 1939 and (4) mature
it was asserted only in March, 1950; i.e., more than ten
years before. No issue of fact was involved by their DECLARATION OF DEFAULT; WHEN DEFENDANT
claim of prescription; these two dates were not FAILS TO TIMELY ANSWER; UPON MOTION
denied. Therefore their failure to plead it did not
Sec 3 Declaration of default - If the defending party fails to
constitute waiver. In this case, prescription appears on
answer within the time allowed therefor, the court shall,
the face of the pleading.
upon motion of the claiming party with notice to the
defending party, and proof of such failure, declare the
WAIVER OF DEFENSES- where the action does not take defending party in default. Thereupon, the court shall
issue with the complaint as to dates involved in proceed to render judgment granting the claimant such
defendant’s claim of prescription, his failure to specifically relief as his pleading may warrant, unless the court in its
plead prescription in the answer does not constitute a discretion requires the claimant to submit evidence. Such
waiver of defense of prescription. The defense of reception of evidence may be delegated to the clerk of
court.
26
In judicial foreclosure of mortgage, the sale, the title over the real
property is vested in the name of the buyer NOT by virtue of the
(a) Effect of order of default. — A party in default
sheriff’s sale, but by virtue of the confirmation sale issued by the judge. shall be entitled to notice of subsequent proceedings but
In this case, nanalo si Chua Lamko pero hindi siya ng file ng motion for not to take part in the trial. (2a, R18)
the confirmation of the sale.

REMEDIAL LAW
CIVIL PROCEDURE
(b) Relief from order of default. — A party declared 2. the court in its discretion may require the
in default may at any time after notice thereof and before claimant to submit evidence
judgment file a motion under oath to set aside the order of
default upon proper showing that his failure to answer was ELEMENTS OF A VALID DECLARATION OF DEFAULT
due to fraud, accident, mistake or excusable negligence (Sablas v. Sablas, infra.)
and that he has a meritorious defense. In such case, the 1. the court has validly acquired jurisdiction
order of default may be set aside on such terms and over the person of the defending party either
conditions as the judge may impose in the interest of by service of summons or voluntary
justice. (3a, R18) appearance;
2. the defending party failed to file the answer
(c) Effect of partial default. — When a pleading within the time allowed therefor and
asserting a claim states a common cause of action against 3. A motion to declare the defending party in
several defending parties, some of whom answer and the default has been filed by the claiming party
others fail to do so, the court shall try the case against all with notice to the defending party.
upon the answers thus filed and render judgment upon the
evidence presented. (4a, R18). RULES IN SABLAS v. SABLAS, infra.
1. WHERE THERE IS NO MOTION, THERE CAN
(d) Extent of relief to be awarded. — A judgment
BE NO DECLARATION OF DEFAULT;
rendered against a party in default shall not exceed the
2. WHERE THERE IS NO DECLARATION OF
amount or be different in kind from that prayed for nor DEFAULT, ANSWER MUST STILL BE
award unliquidated damages. (5a, R18). ADMITTED EVEN IF FILED OUT OF TIME;
(e) Where no defaults allowed. — If the defending i. When no prejudice is caused to the plaintiff
party in an action for annulment or declaration of nullity of ii. There is no showing that defendant intends
marriage or for legal separation fails to answer, the court to delay the case
3. WHERE ANSWER HAS BEEN FILED, THERE
shall order the prosecuting attorney to investigate whether
CAN BE NO DECLARATION OF DEFAULT
or not a collusion between the parties exists, and if there is
ANYMORE
no collusion, to intervene for the State in order to see to it Illustrative case:
that the evidence submitted is not fabricated. (6a, R18)
―If the defending party fails to answer within the time SABLAS vs SABLAS, G.R. No. 144568, July 3, 2007
allowed therefor‖ FACTS: Petitioner spouses were served with summons
Q: When may a party be declared in default? and a copy of the complaint on October 6, 1999. On
A: ONLY when the defending party fails to answer within October 21, 1999, they filed a motion for extension of time
the time allowed therefor. There is ONLY ONE INSTANCE requesting an additional period of 15 days, or until
when a party may be declared in default, that is, when the November 5, 1999, to file their answer. However, they
defendant fails to answer within the time specified in the were able to file it only on November 8, 1999 (2 days late).
rules While the trial court observed that the answer was filed out
of time, it admitted the pleading because no motion to
―upon MOTION of the claiming party with NOTICE to
declare petitioner spouses in default was filed. The
the defending party, and PROOF (HEARING) of such
failure‖ following day, November 9, 1999, respondents filed a
motion to declare petitioner spouses in default because
Q: May a court motu proprio declare defendant in default? there was failure to file the answer within the time provided
A: No, because the Rules requires: for by the rules. The motion was denied by the trial court.
On the other hand, the appellate court ruled that the trial
i. a motion,
court committed grave abuse of discretion because,
ii. notice to the defending party, and pursuant to Section 3, Rule 9 of the Rules of Court, the
iii. proof of such failure, viz., hearing. trial court had no recourse but to declare petitioner
spouses in default when they failed to file their answer
within the time fixed by the rules.
―Thereupon, the court shall proceed to render
ISSUE: WON the court has no order choice except to
judgment granting the claimant such relief as his
declare the defendants in default when they fail to answer
pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence‖ within the time fixed by the rules.
HELD: NO. The rule on default requires the filing of a
Q: After a party has been declared in default, what may motion and notice of such motion to the defending party. It
the court do?
is not enough that the defendant fails to answer the
A: The court may do TWO THINGS, either: complaint within the reglementary period. The trial court
1. The court may proceed to render judgment cannot motu proprio declare a defendant in default as
granting the claimant such relief as his pleading the rules leave it up to the claiming party to protect
may warrant, OR his or its interests. The trial court should not under
any circumstances act as counsel of the claiming

REMEDIAL LAW
CIVIL PROCEDURE
party. The rule is that the defendants answer should Illustrative case:
be admitted where it is filed before a declaration of
CAVILI vs FLORENDO, G.R. No. 73039, October 9,
default and no prejudice is caused to the plaintiff.
1987
Where the answer is filed beyond the reglementary
period but before the defendant is declared in default FACTS: The private respondents filed a Civil Case against
and there is no showing that defendant intends to herein three petitioners (defendants A, B, C) for Partition,
delay the case, the answer should be admitted. Accounting, and Damages. After the case was raffled,
Therefore, the trial court correctly admitted the answer of summons was issued to the three petitioners. The
petitioner spouses even if it was filed out of time because, summons was served to A who also received it for B and
at the time of its filing, they were not yet declared in C. The defendants, however, failed to file their answer and
default nor was a motion to declare them in default ever upon motion of the plaintiffs, the defendants were declared
filed. Neither was there a showing that petitioner spouses in default, and a judgment by default was promulgated.
intended to delay the case.Since the trial court already Thereafter, B and C filed a motion for new trial in behalf of
admitted the answer, it was correct in denying the the defendants considering that they were not properly
subsequent motion of respondents to declare served with summons. The matter was ultimately brought
petitioner spouses in default. up before the SC. The SC remanded the case back and
sustained the contention of B and C that there was no
―(a) Effect of order of default. — A party in default proper service of summons on them and therefore the
shall be entitled to notice of subsequent proceedings judgment should be vacated and for the trial court to hear
but not to take part in the trial. (2a, R18)‖ 27
the case. During the trial, the non-defaulting defendants,
Q: What does it mean when the party is declared in (now petitioners) B and C, presented A as their first
default, in other words, what is the effect of such witness. The respondents, through counsel moved for her
declaration? disqualification as a witness on the ground that having
been declared in default, Perfects Cavili has lost her
A: The party who has been declared in default cannot any
more take part in the trial. standing in court and she cannot be allowed to participate
in all premise the even as a witness. The court, through
NOTE: However, under the present rules, he shall still be the respondent judge, sustained the respondents'
entitled to notice of subsequent proceedings. (alam niya contention and disqualified her from testifying.
lang kung ano ang ngyayari, pero di siya pwede sumali sa
ISSUE: WON a party who has been validly declared in
nangyayari)
default can no longer testify as a witness since he has no
right to participate in the trial
HELD: NO, a party declared in default can still testify as a
A PARTY DECLARED IN DEFAULT MAY STILL
witness. Loss of standing in court is the consequence of
TESTIFY; RULES IN CAVILI v. FLORENDO, infra.
an order of default. The phrase ―loss of standing‖ (or the
1. ―TAKING PART IN THE TRIAL‖ MEANS THE new phrase now ―cannot take part in the trial‖) must be
RIGHT TO BE A PARTY LITIGANT understood to mean only the forfeiture of one's rights
The rights forfeited are: as a party litigant, contestant or legal adversary. A
i. right to present his defense, party in default loses his right to present his defense,
ii. control the proceedings, and control the proceedings, and examine or cross-examine
28
iii. examine or cross-examine witnesses. witnesses. There is nothing in the rule, however, which
2. AS OPPOSED TO A PARTY LITIGANT, A contemplates a disqualification to be a witness or a
WITNESS IS MERELY A SPECTATOR opponent in a case. As opposed to a party litigant, a
CALLED UPON TO TESTIFY TO WHAT HE witness is merely a beholder, a spectator or onlooker,
HAS SEEN, HEARD, OR OBSERVED. AS
called upon to testify to what he has seen, heard, or
SUCH, HE TAKES NO ACTIVE PART IN THE
CONTEST OF RIGHTS BETWEEN THE observed. As such, he takes no active part in the
PARTIES contest of rights between the parties. A party in default
- to be a witness is not to take active part in the may thus be cited as a witness by his co-defendants who
trial, merely called upon to testify what he has have the standing and the right to present evidence which
observed. the former may provide. The incidental benefit of giving
3. THE INCIDENTAL BENEFIT OF GIVING THE the party in default the opportunity to present evidence
PARTY IN DEFAULT THE OPPORTUNITY TO
which may eventually redound to his advantage or bring
PRESENT EVIDENCE WHICH MAY
EVENTUALLY REDOUND TO HIS about a desired result, through his co-defendants, is of
ADVANTAGE IS OF MINOR CONSEQUENCE. minor consequence. Of greater concern or importance is
OF GREATER IMPORTANCE IS THE the preservation of the right of other parties to secure the
PRESERVATION OF THE RIGHT OF OTHER
PARTIES TO SECURE THE ATTENDANCE OF 27
WITNESSES AND THE PRODUCTION OF So hearing na, pero validly na declare in default si A kasi natanggap
EVIDENCE IN THEIR BEHALF. niya ung summons.
28
Yan ang taking part in the trial

REMEDIAL LAW
CIVIL PROCEDURE
attendance of witnesses and the production of evidence in ISSUE2: WON the petitioners are automatically entitled to
their behalf. the relief prayed for once the respondents are declared in
default.
THE RULES ON DEFAULT DO NOT DICTATE THAT HELD2: NO, nowhere in Rule 9 is it stated that the
JUDGMENT BY DEFAULT SHOULD ALWAYS BE IN petitioners are automatically entitled to the relief
FAVOR OF PLAINTIFF. A DEFAULTED DEFENDANT IS prayed for, once the respondents are declared in
NOT ACTUALLY THROWN OUT OF COURT. THE default. Favorable relief can be granted only after the
RULES SEE TO IT THAT ANY JUDGMENT AGAINST court has ascertained that the evidence offered and
THE DEFENDANT MUST BE IN ACCORDANCE W/ the facts proven by the presenting party warrant the
LAW. ALTHOUGH THE DEFENDANT IS NOT IN THE grant of the same. Otherwise, it would be meaningless to
POSITION TO OBJECT, ONLY COMPETENT AND require presentation of evidence if everytime the other
RELEVANT EVIDENCE SHOULD BE ADMITTED party is declared in default, a decision would automatically
AGAINST HIM. be rendered in favor of the non-defaulting party and
Illustrative case: exactly according to the tenor of his prayer. This is not
contemplated by the Rules nor is it sanctioned by the due
PASCUA vs FLORENDO, process clause. The default or the failure of the defendant
to answer should not be interpreted as an admission by
FACTS: Petitioners PASCUAs filed a complaint for
the said defendant that the plaintiff's cause of action find
reconveyance with damages against the private
support in the law or that plaintiff is entitled to the relief
respondents, spouses Clemente and Juliana Castro. The
prayed for. In other words, a defaulted defendant is not
latter, as defendants, in lieu of filing an answer, filed a
actually thrown out of court. While in a sense it may
motion to dismiss the complaint on the ground that the
be said that by defaulting he leaves himself at the
same is already barred by the statute of limitations. The
mercy of the court, the rules see to it that any
trial court denied the respondents' motion after finding that
judgment against him must be in accordance with law.
the grounds relied upon by them did not appear on the
Although the defendant would not be in a position to
face of the complaint. The court subsequently declared the
object, elementary justice requires that only legal
respondents in default for their having failed to file an
evidence should be considered against him. The
answer within the reglementary period. Thus, the
evidence to support the plaintiff's cause is, of course,
petitioners proceeded to present their evidence ex-parte.
presented in his absence, but the court is not
After receiving the petitioners' evidence, the trial court
supposed to admit that which is basically
ruled that the action has already prescribed in view of the
incompetent. If the evidence presented should not be
fact that the deed of sale was executed on May 8, 1951, or
sufficient to justify a judgment for the plaintiff, the
over twenty years before the filing of the complaint on May
complaint must be dismissed. And if an unfavorable
31, 1973. Not satisfied with the trial court's decision,
judgment should be justifiable, it cannot exceed in amount
petitioners elevated the case to this Court through this
or be different in kind from what is prayed for in the
petition. The petitioners now argue that because of the
complaint.
court’s denial of the motion to dismiss, the trial court is
estopped from dismissing the case on the same ground.
―(b) Relief from order of default. — A party
Furthermore, The petitioners raise as a second issue that declared in default may at any time after notice thereof
the respondent court had no alternative but to grant the and before judgment file a motion under oath to set
relief prayed for in their complaint on the ground that Rule aside the order of default upon proper showing that
9 of the Rules of Court provides that, if the defendant has his failure to answer was due to fraud, accident,
been declared in default, the court shall proceed to receive mistake or excusable negligence and that he has a
the plaintiff's evidence and render judgment granting him meritorious defense. In such case, the order of default
such relief as the complaint and the facts proven may may be set aside on such terms and conditions as the
warrant. judge may impose in the interest of justice. (3a, R18)‖‖
ISSUE1: WON the trial court erred in dismissing the case Q: What is the remedy if a party is declared in default?
on ground of prescription although it has previously denied
a motion to dismiss based on the same ground. A: A party declared in default may file a motion under oath
to set aside the order of default at any time after notice
HELD1: NO. The trial court denied the motion to dismiss
there of but before judgment
because the grounds relied upon by the respondents for
their motion did not appear on the face of the complaint. WHAT: a motion under oath to set aside the order of
There was no finding that the allegation of prescription had default
no merit. It cannot be said, therefore, that the trial court WHEN: at any time after notice thereof but before
was already estopped from passing upon the issue of judgment
prescription. The issue was not adjudicated on its merits
- because if judgement has already been
and the doctrine of res judicata had not set in yet. rendered, the remedy of a motion to set aside the
order of default is no longer available.

REMEDIAL LAW
CIVIL PROCEDURE
Q: What if after judgement, ano na ang remedy? against several defending parties, some of whom
answer and the others fail to do so,xxx‖
A: Motion for new trial on the ground of FAME
under rule 37. Q: When can there be partial default?
Q: What if the judgment is already final and A: When there are two or more defendants, some of
executory? whom answered and the others failed to do so
A: The remedy is to file a petition for relief from - Ung mga hindi sumagot, madedefault.
judgment under Rule 38. PLUS: However, it is not enough that there must be two or
Motion to set Motion for new Petition for more defendants, these defendants should have been
aside order of trial (Rule 37) relief from sued under a common cause of action.
default (Rule judgment ―(c) Effect of partial default –xxx the court
9) (Rule 38) shall try the case against all upon the
before after judgment is answers thus filed and render judgment upon
judgment judgement already final the evidence presented. (4a, R18).‖‖
and executory GENERAL RULE: As earlier said, when a party
has been declared in default, the court has two
options, namely, 1) to proceed to render
FORM: the motion to set aside the order of default must judgment on the basis of the pleading or 2) to
be under oath. require the claimant to submit evidence ex parte
Q: What are the grounds for a motion under oath to set EXCEPTION: In cases of partial default, the court
aside the order of default? cannot proceed to render judgement on the basis
of the pleading, the court shall try the case
GROUNDS: upon a showing that his failure to answer was
against ALL the defendants (including those who
due to: (FAME)
did not answer) upon the answers thus filed and
1. Fraud, render judgment upon the evidence presented.
2. Accident,
 Yung answer ng naganswer, maging answer
3. Mistake, or na din ng defaulting, ang problema lang, ung
defendant na in default hindi pweding sumali
4. Excusable Negligence
sa trial.
PLUS: However, the same is not enough, there must be  Kung maraming defendants, some
an allegation in the motion to set aside the order of answered, some did not, the court cannot
default that he has a meritorious defense. immediately render judgment. It must first try
the case.
DISCUSSION:  The court cannot immediately rednder
1. Fraud- Extrinsic fraud by the adverse party. judgement against the defaulting defendants.
Q: What kind of fraud is allowed to set aside the
order of default? (d) Extent of relief to be awarded. — A judgment
rendered against a party in default shall not exceed
A: ONLY extrinsic fraud
the amount or be different in kind from that prayed for
Q: What is extrinsic fraud? nor award unliquidated damages. (5a, R18).
A: The fraud employed by the adverse party that Q: What is the extent of the relief that may be awarded to
would prevent the other party from filing an the plaintiff when a defendant has been declared in
answer or presenting his case in court default?
 e.g. Sinabihan ka ng kalaban na wag ka na A: The judgment/award:
magfile ng answer dahil ipapadismiss naman i. Shall not exceed the amount from that prayed for.
daw niya.
ii. Shall not be different in kind from that prayed for.
 An extrinsic fraud has no connection to the
merits of the case. iii. Nor award unliquidated damages.
NOTE: The fraud must be employed by the NOTE: Thus, if the defendant has been
adverse party. declared in default, even if your evidence
proves a claim that is more than that prayed
Q: What is intrinsic fraud?
for, the court cannot award an amount
A: Fraud which goes to the very issue of the case greater or different. The rules does not
which should have been raised in the defense. anymore allow the technical effect of an
amendment to conform to evidence.
―(c) Effect of partial default. — When a pleading
asserting a claim states a common cause of action Q: Can it be implied from this that if the
defendant has not been declared in default,

REMEDIAL LAW
CIVIL PROCEDURE
the court can award which exceeds the A1: No, the only instance when the defendant may be
amount or is different in kind from that declared in default is when he fails to answer within the
prayed for? time allowed therefor. In this case, the defendant
answered
A: YES. This is inconnection with an
amendment to conform to evidence Q2: May the trial proceed if the defendant failed to appear
at the trial?
―(e) Where no defaults allowed. — If the defending
party in an action for annulment or declaration of A2: Yes. The failure to appear merely constitutes as a
nullity of marriage or for legal separation fails to waiver of the right to cross examine
answer, the court shall order the prosecuting attorney
Q3: May the court award damages more than or different
to investigate whether or not a collusion between the
from the amount prayed for if the evidence presented by
parties exists, and if there is no collusion, to intervene
the plaintiff warrants the same?
for the State in order to see to it that the evidence
submitted is not fabricated.‖ A3: Yes because the only time when a judgment rendered
against a defendant shall not exceed the amount or be
different in kind from that prayed for nor award
unliquidated damages is when the defendant is declared
WHAT ARE THE INSTANCES WHERE DEFAULT IS
in default
NOT ALLOWED?
1. In case of annulment of marriage

2. Declaration of nullity of marriage RULE 10
3. Legal separation
AMENDED AND SUPPLEMENTAL PLEADINGS
PROCEDURE: In these instances, if the defendant failed
to answer, he would not be declared in default. The
procedure is that the court shall:
i. Order the prosecuting attorney to investigate AMENDED SUPPLEMENTAL
29
whether or not a collusion between the parties PLEADING PLEADING
exists,
BASIS Section 1. Section 6.
ii. and if there is no collusion, to intervene for the Amendments Supplemental
State in order to see to it that the evidence in general. — pleadings. — Upon
submitted is not fabricated.‖ Pleadings may be motion of a party
REASON BEHIND THE RULE: Because marriage is the amended by the court may, upon
foundation of the family and an inviolable social institution. adding or striking reasonable notice
out an allegation and upon such
ADDITIONAL NOTES: or the name of terms as are just,
any party, or by permit him to serve
- cannot rule default if time to answer has not yet
correcting a a supplemental
expired (BRITISH vs DELOS ANGELES)
mistake in the pleading setting
- There’s difference on a judgment presented on name of a party forth transactions,
ex parte based on default order VS judgment or a mistaken or occurrences or
based on defendant’s answer who did not attend inadequate events which have
trial. On the latter, the amount may exceed than allegation or happened since
what is prayed for. (EVANGELINE vs CA) description in any the date of the
- Effect of order of default – A party declared in other respect, so pleading sought to
default shall not be entitled to notice of that the actual be supplemented.
subsequent proceedings nor to take part in trial, merits of the xxx
until the order of default is lifted. controversy may
- Relief from order of default – A party declared speedily be
in default may at any time afer discovery thereof determined,
without regard to
and before judgment file a motion under oath to
technicalities, and
set aside the order of default upon proper
in the most
showing that his failure to andwer was due to:
expeditious and
fraud, accident, mistake or excusable negligence inexpensive
and that he has a meritorious defense. manner. (1)
(MANLAYAON vs SUNGA)
SUBJECT Sets forth facts, refers to
PRACTICAL QUESTIONS: MATTER events, transactions,
Q1: May a defendant who files an answer, but fails to
appear during trial, be declared in default? 29
A supplemental pleading is the opposite of an amended pleading

REMEDIAL LAW
CIVIL PROCEDURE
transactions that occurences or amendment judgment. (9, R6)
were already events which before - That is why
existing before happened AFTER judgment. (3, when we were
or at the time of the filing of the R9) discussing
the filing of the original pleading. compulsory
original Q: What is an counterclaim
pleading.
30
omitted and crossclaim,
for the claim to
counterclaim or
be considered
For purpose cross-claim?
compulsory
correction of error A: It refers to counterclaim or
whether by way transactions crosscalim, the
of addition or events that were claim should
substitution to the already existing have already
end that matters at the time the matured, due
in dispute may be original pleading and
presented in was served. demandable. If
court. during the filing
AS TO May be made as Always upon motion Q: What is then of the answer
PROCEDURE a matter of right your remedy? the claim was
not yet due and
when no
demandable,
responsive A: When a
but after filing
pleading has still pleader fails to of the answer
been served set up a the claim has
AS TO Supersedes the original pleading counterclaim or a become due
EFFECT original still exists. It merely cross-claim, that and
pleading, the supplements the is, an already demandable,
prior pleading is original pleading existing can you still file
regarded as counterclaim but a
abandoned, it omitted in the counterclaim?
ceases to be part answer through Yes but not
of the record. oversight byfiling an
inadvertence, or amended, but
Technically, it
by filing a
disappears from excusable
supplemental
the record as neglect, or when
pleading.
judicial justice requires, Q: bakit
admission, he may, by leave supplemental
hence, the case of court, set up pleading?
based its the counterclaim A: Because the
judgment on the or cross-claim by counterclaim or
amended amendment crossclaim has not
complaint only. before yet matured at the
EXAMPLE. Section 10. Section 9. judgment. time of the filing of
Q: Where do Omitted Counterclaim the answer. Then
you plea a counterclaim or or cross-claim the event,
counter claim cross-claim. — arising after transaction, or
or cross When a pleader answer. — A occurrence that
claim? fails to set up a counterclaim or a made the
A: Generally, counterclaim or a cross-claim which counterclaim
in the answer cross-claim either matured or demandable or
dapat nafile through was acquired by a matured happened
na din. oversight, party after serving after the filing of the
inadvertence, or his pleading may, original pleading,
excusable with the permission that is, the answer.
neglect, or when of the court, be In otherwords, the
justice requires, presented as a counterclaim or
he may, by leave counterclaim or a crossclaim was not
of court, set up cross-claim by yet exisiting at the
the counterclaim supplemental time the original
or cross-claim by pleading before answer was filed.
Since the claim
matured only at the

REMEDIAL LAW
CIVIL PROCEDURE
time the answer has A: Only once
been served, you - Kapag inamend mo ulit, hindi na yan once,
can still raise it by twice na yan. In which case, with leave of
way of supplemental court na.
pleading. WHEN:
1) ―at any time before a responsive pleading is
SERVED‖
- Distinguish filing from serving. You file by
―Section 1. Amendments in general. — Pleadings giving a copy to the clerk of court. On the
may be amended by adding or striking out an other hand, serving is giving a copy to the
allegation or the name of any party, or by correcting a adverse party to comply to due process, yan
mistake in the name of a party or a mistaken or ang motion and notice.
inadequate allegation or description in any other - Service and not filing. The reason behind the
rule is that usually filing comes ahead in the
respect, so that the actual merits of the controversy may
chronological order. Filing will not be
speedily be determined, without regard to technicalities,
accpepted by the clerk unless there is proof
and in the most expeditious and inexpensive manner.‖ of service to the adverse party.
2) ―in the case of a reply, at any time within ten
(10) days after it is served.‖
HOW PLEADINGS ARE AMENDED: addition, - After reply, it ends there, no responsive
pleading after it.
suppression, substitution and incorporation of document
NOTE: In relation to criminal procedure, the prosecution
1. By adding an allegation; may amend the information as a matter of right before the
2. Striking out an allegation; plea is entered not necessarily before arraignment.
- So you amend what? an allegation, kaya Nagpaarraign ka pero di ka naman nag plea.
sinasabi natin na kung wala kang forum shopping
II. BY LEAVE OF COURT-meaning, may permission ng
certification, you cannot cure it by amendment,
court, kaya may motion, notice and hearing.
because you can only amend an allegation Discretionary upon the court.
constituting a party‘s cause of action or Section 3. Amendments by leave of court. —
defense Except as provided in the next preceding section,
3. By adding or striking out the name of any substantial amendments may be made only upon
party leave of court. But such leave may be refused if it
-dinadagdagan mo name ng defendant, appears to the court that the motion was made with intent
nagjojoinder ka. to delay. Orders of the court upon the matters provided in
-Striking out, you are dropping a party. this section shall be made upon motion filed in court, and
-Hence, the joinder or misjoinder is not a ground after notice to the adverse party, and an opportunity to be
for a motion to dismiss since the proper heard. (3a)
procedure is amendment of the pleading. NOTE: An amendment by leave of court relates only to
Q: What are the matters you can add or strike substantial amendments.
out?
A: Two things, namely, 1) an allegation, and 2) FORMAL AMENDMENT v. SUBSTANTIAL
AMENDMENT
parties
4. Correcting a mistake in the name of a party or
FORMAL SUBSTANTIAL
a mistaken or inadequate allegation or
description in any other respect Section 4. Formal Section 3.
amendments. — A defect Amendments by
TWO WAYS OF AMENDMENT in the designation of the leave of court. — Except
1. WHEN AMENDMENT IS A MATTER OF RIGHT parties and other clearly as provided in the next
2. AMENDMENT BY LEAVE OF COURT clerical or typographical preceding section,
errors may be summarily substantial amendments
I. AS A MATTER OF RIGHT- cannot be refused. No corrected by the court at may be made only upon
permission needed any stage of the action, at leave of court. xxx‖
Section 2. Amendments as a matter of right. — its initiative or on motion,
A party may amend his pleading once as a matter of right provided no prejudice is
at any time before a responsive pleading is served or, in caused thereby to the
the case of a reply, at any time within ten (10) days after it adverse party. (4a)
is served. (2a) - So the most important
AVAILABILITY: ―A party may amend his pleading thing here, in the
once as a matter of right‖ submission of an
Q: How many times can you amend a pleading amendment, whether
as a matter of right? formal or substantial, is

REMEDIAL LAW
CIVIL PROCEDURE
that it will not cause MULTIPLICITY OF SUITS AND UNNECESSARY
prejudice to the DELAY.
adverse party. Illustrative case:
i. Defect in the 1. Changes the theory TIU vs PHILBANK COMMUNICATIONS, G.R. No.
designation of parties of the case- When 151932 August 19, 2009
ii. clerical or the claim or the FACTS: PhilBank filed a complaint against a corporation
typographical errors amended complaint
for having failed to comply with its loan obligations with
typographical claims a liability
entirely different form the bank. The loan taken by the defendant corporation
that which is alleged was secured by real mortgage and a surety undertaking
in the original by its directores. Hence, when the bank sued for the
complain; When recovery of the debt, it sued not only the debtor corp. but
defendant is being also the directors on the basis of the surety undertaking.
made to answer for a In the answer, the directors alleged that they were not
liability entirely personally liable on the promissory notes, because they
different or more than signed the Surety Agreement in their capacities as
that alleged under the officers of AWRI, hence not in personal capacity. In
original complaint; support of their allegations, they attached to their Answer
- For e.g action for a certified photocopy of the Surety Agreement. The bank
reconveyance,
then filed a motion for leave to substitute the surety
the basis of
undertaking attached in the complaint with another copy
plaintiff’s theory
is inheritance  containg the phrase ―in their personal capacities‖. The
files amended attachment of the new copy was objected to by the
complaint defendatns alleging that the same was substantial
abandon such amendment since in the originally attached document,
theory and now there was not indication that they were contracting in
32
claims he bought their personal capacities. The lower courts allowed the
the property. substitution of the attachment.
- Applying defense ISSUE: WON the lower courts erred in allowing the
theory: defences substitution of the document.
of defendant HELD: No. The pertinent rule on actionable documents is
can’t anymore found in Section 7, Rule 8 of the Rules of Court, which
meet the
provides that when the cause of action is anchored on a
allegations under
document, its substance must be set forth, and the
the amended
complaint original or a copy thereof "shall" be attached to the
2. Evidentiary test – pleading as an exhibit and deemed a part thereof.
defenses available Substatial amendments may only be made with leave of
under the original court, and such amendment may be refused if made with
complaint would no intent to delay. In Valenzuela v. Court of Appeals, the
longer be available to court noted that Section 3, Rule 10 of the 1997 Rules of
the adverse party, or Civil Procedure amended the former rule in such manner
when the defences that the phrase "or that the cause of action or defense
available to defendant is substantially altered" was stricken-off and not
under original retained in the new rules. The clear import of such
pleading would no amendment in Section 3, Rule 10 is that under the new
longer be sufficient to
rules, "the amendment may (now) substantially alter the
answer/meet the
allegations of the cause of action or defense." This should only be true,
amended complaint.
31 however, when despite a substantial change or alteration
in the cause of action or defense, the amendments
POLICY REGARDING SUBSTANTIAL AMENDMENT: sought to be made shall serve the higher interests of
THE COURTS SHOULD BE LIBERAL IN ALLOWING substantial justice, and prevent delay (will not
AMENDMENTS TO PLEADINGS TO AVOID prejudice the right of the adverse party). The granting of
leave to file amended pleading is a matter particularly
addressed to the sound discretion of the trial court; and
31
that discretion is broad, as enunciated in Valenzuela,
In criminal cases, there is substantial amendment when the even if the amendment substantially alters the cause of
amendment changes the nature of the offense charged or when the
evidence that is available to the defendant when the original
32
information was filed would no longer be available or sufficient to met In alleging an actionable doc., a party may just state the substantial
the amendment information (evidentiary test). In other words, when parts thereof in the complaint then attached the copy of the document.
you are called upon to answer more than what was alleged in the So kapag actionable document, and you changed, that is a substantial
original information. Iniiba mo ung crime. For example, a person was amendment. If you change the attachment you are changing.
charged with theft. Before plea (when still a matter of right), you can
change that to robbery, qualified theft.

REMEDIAL LAW
CIVIL PROCEDURE
action or defense, such amendment could still be allowed denied when delay would arise, or when amendments
when it is sought to serve the higher interest of would result in a change of cause of action or theory of the
substantial justice; prevent delay; and secure a just, case, or would be inconsistent with the allegations in the
speedy and inexpensive disposition of actions and original complaint. The Court agrees with the appellate
proceedings. The courts should be liberal in allowing court that the trial court did not commit any grave abuse of
amendments to pleadings to avoid a multiplicity of discretion in denying petitioners amended complaint. The
suits and in order that the real controversies between admission thereof was clearly not a matter of right on
the parties are presented, their rights determined, the part of petitioners as they sought the same only
and the case decided on the merits without after a responsive pleading (in this case, an answer)
unnecessary delay. This liberality is greatest in the early had already been filed (served) by respondents. The
stages of a lawsuit, especially in this case where the matter was thus within the discretion of the trial court.
amendment was made before the trial of the case, NOTE: substantial amendment are subject to the
thereby giving the petitioners all the time allowed by law discretion of the court although the liberal policy is to admit
to answer and to prepare for trial. (as the trial progresses, it, if it found that the amend would serve substantial
humihigpit na liberality) justice. here the court did not find that it will serve the
TEST TO DETERMINE: Whether the allegations of substantial justice.
complaint, the plaintiff is entitled to relief as long as it
alleges the right, obligation and delict or wrong. RULES IN REMINGTON v CA, infra.
i. A MOTION TO DISMISS OR ANY PROCEEDING
ALLOWANCE OF SUBSTANTIAL AMENDMENT, CONTESTING THE SUFFICIENCY OF THE
DISCRETIONARY UPON THE COURTS COMPLAINT DOES NOT PREVENT THE FILING OF
Illustrative case: AN AMENDED PLEADING FOR A SUSBSTANTIAL
AMENDMENT OF A COMPLAINT
Ng v. Sps. Soco, G.R. No. 149132. May 9, 2002
Q: Where after a motion to dismiss is filed, may you still
FACTS: Ng alleged that they are the owners of Jos
amend as a matter of right? Or when a motion to dismiss
Chicken Barbecue (Chicken Inato) secret recipe. Ng
has already been resolved?
further alleged that they entered into a partnership
A: YES, as long as the order of dismissal has not yet
agreement with respondents Soco to operate a restaurant,
become final and executory.
the Socos Manokan Nook Restaurant. The agreement
ii. THE CUT-OFF FOR AN AMENDMENT AS A
provided that in the event of the dissolution of the
MATTER OF RIGHT IS THE SERVICE OF A
partnership, respondents shall lose the right to use the RESPONSIVE PLEADING (ANSWER), NOT BY A
secret recipe and ownership thereof shall revert back to MOTION TO DISMISS
petitioners. The partnership was dissolved. Believing that Q: can a complaint still be amended as a matter of right
respondents continued to operate the same business, before an answer has been filed, even if there was a
petitioners filed the complaint for accounting with the court pending proceeding for its dismissal before the higher
a quo. During the hearing on the petition for the issuance court?
of a writ of preliminary injunction, petitioners learned that a A: Yes.
certain Magno Garcia, respondents nephew, is operating iii. IN CASES OF MULTIPLE DEFENDANTS, THE
the restaurant under the name Manokan sa Sugbu. Upon FACT THAT THE OTHER DEFENDANTS HAS
the belief that Garcia was merely used as dummy by FILED THEIR ANSWERS TO THE COMPLAINT
respondents in order to evade their contractual obligation, DOES NOT BAR PETITIONERS FROM
i.e., to cease using the secret recipe, Ng filed a motion to SUBSTANTILLY AMENDING THE COMPLAINT AS
admit amended complaint to implead Garcia as one of the A MATTER OF RIGHT AGAINST THE DEFAULTING
defendants alleging that they were in conspiracy with each DEFENDANTS (THOSE WHO DID NOT ANSWER).
other. The trial court denied said motion, according to the Illustrative case:
trial court, the amendment not only requires or compels REMINGTON INDUSTRIAL vs CA, G.R. No. 133657.
the defendants (respondents herein) to change their May 29, 2002]
defense but also subjects them to all the acts, knowledge, FACTS: Remington filed a complaint for sum of money
admission and even the omissions of Magno Garcia. In and damages arising from breach of contract against three
other words, since the amendment are substantial, an defendants, namely, Industrial Steels, Ltd. (ISL), with
allegation of conspiracy, the original defendants are now Ferro Trading GMBH (Ferro) and respondent British Steel
made to answer for a liability more than what was alleged as alternative defendants. ISL and respondent British
in the original. CA affirmed Steel moved for the dismissal of the complaint on the
ISSUE: WON the lowers courts erred in disallowing the ground that it failed to state a cause of action against
amendment them. The RTC denied the motions to dismiss. Because of
HELD: NO. Under the rules, formal and substantial the denial, British filed a petition for certiorari before the
amendments to a pleading may be made at anytime Court of Appeals claiming therein that the complaint did
before a responsive pleading has been filed (served not contain a single averment that British committed any
dapat). Such amendment is a matter of right. Thereafter, act or is guilty of any omission in violation of petitioners
and during trial, amendments may only be done with legal rights. Meanwhile, Remington, realizing that British is
the permission of the court. The Court has invariably correct, sought to amend its complaint by incorporating
held that amendments are not proper and should be therein additional factual allegations constitutive of its

REMEDIAL LAW
CIVIL PROCEDURE
cause of action against British. After filing the motion to since the other defendants (ISL and Ferro) have already
admit the amendment, Remington manifested this fact answered
with the CA and asked to suspend the certiorari HELD2: NO. The fact that the other defendants below
proceedings until final resolution by the RTC since once have filed their answers to the complaint does not bar
the amendment is admitted, the certiorari proceeding petitioners right to amend the complaint as against
becomes moot and academic. The RTC, on the respondent British (the defaulting defendant). Indeed,
where some but not all the defendants have answered,
otherhand, just noted the filing of the motion to admit the
the plaintiff may still amend its complaint once, as a
amendment and held in abeyance its resolution until the matter of right, in respect to claims asserted solely
resolution of the certiorari case before the CA. Eventually, against the non-answering defendant, but not as to
the CA order the RTC to dismiss the case before British. claims asserted against the other defendants.
Additionally, the CA brushed aside or disregarded the NOTE: The cut-off is the service of an answer (responsive
manifestation stating that ―What this Court is called upon pleading). A motion to dimiss is not even considered a
to resolve is whether the lower court committed grave responsive a pleading.
abuse of discretion when it denied petitioners motion to
dismiss the complaint against it.” (the only matter raised
MARCOS-ARANETA v. CA, supra.
before the CA is the issue of the original complaint).
Hence, this petition. FACTS: Irene instituted before the RTC Batac, Ilocos
ISSUE: WON ca erred in ordering the dismissal of the Norte two similar complaints for conveyance of shares of
complaint against the private respondent for lack of cause stock, accounting and receivership against the Benedicto
of action under the original complaint in disregard of the Group.Respondents filed a Motion to Dismiss on the
manifestation that an amendment of the original complaint ground that venue was improperly laid. The lower court
has been sought. dismissed the case since Irene nor the respondents were
HELD: Yes because the amendment at that time was still residents of Ilocos Norte. Before the dismissal became
a matter of right. Since it is a matter of right, the CA should final, Irene filed an amended complaint impleading co-
have considered that. Section 2, Rule 10 of the Revised plaintiffs who are actually residing in Ilocos Norte and who
Rules of Court explicitly states that a pleading may be are her trustees. The trial court admitted the amendment.
amended as a matter of right before a responsive
pleading is served. This only means that prior to the ISSUE: WON the trial court is correct in admitting the
filing of an answer, the plaintiff has the absolute right amendment
to amend the complaint whether a new cause of action
or change in theory is introduced. (because before the HELD: Yes because no answer has yet been served.
service of an answer, you can amend the complaint as a Hence, the amendment is still a matter of right. It is even
matter of right both in form and substance. After the not required to file a motion to admit the amendment since
service of an answer AND if the amendment is substantial, mere notice/manifestation is sufficient to amend the
ibang usapan na, discretionary na yan, like in Ng v. Soco). complaint. You only file a motion if the amendment is by
Under this provision, substantial amendment of the leave of court, and not when it is still a matter of right
complaint is not allowed without leave of court after an
answer has been served, because any material change
in the allegations contained in the complaint could UNTALAN vs CARANGDANG – Before an answer or
prejudice the rights of the defendant who has already motion to dismiss has been filed, the original complaint is
set up his defense in the answer. Conversely, it amendable, and the amendment can supersede the
cannot be said that the defendants rights have been
original pleading, as a matter of right, without leave of
violated by changes made in the complaint if he has
court being required and without the court taking
yet to file an answer thereto. In such an event, the
defendant has not presented any defense that can be cognizance at all of the original complaint.
altered or affected by the amendment of the complaint
in accordance with Section 2 of Rule 10. The defendant
still retains the unqualified opportunity to address the LIMITATIONS IN ALLOWING AMENDMENTS DESPITE
allegations against him by properly setting up his defense THE LIBERAL POLICY
in the answer. Considerable leeway is thus given to the 1. If amendment is for the purpose of delay (as shown
plaintiff to amend his complaint once(only), as a matter of in the rules)
right, prior to the filing of an answer by the defendant. The 2. If the purpose of the amendment is to rectify an
right granted to the plaintiff under procedural law to amend error of jurisdiction or confer jurisdiction upon the
the complaint before an answer has been served is not court (as provided in jurisprudence)
precluded by the filing of a motion to dismiss or any other Q: If the court under the original complaint has no
proceeding contesting its sufficiency (namely, the petition jurisdiction over the subject matter, can you
for certiorari before CA). Were we to conclude otherwise, amend it in order to confer jurisdiction upon the
the right to amend a pleading under Section 2, Rule 10 will court?
be rendered nugatory and ineffectual, since all that a A: NO. (Tirona v. Alejo, infra.)
defendant has to do to foreclose this remedial right is to - If under the original pleading, the court
challenge the adequacy of the complaint before he files an has no jurisdiciton.
answer.
ISSUE2: WON Remington can no longer substantially
amend the complaint as a matter of right as against British

REMEDIAL LAW
CIVIL
33
PROCEDURE
Q: You are claiming 300k filed with RTC - can over the case in the first instance. Because if it
the original claim be amended to 500k so that it has no jurisdiction, how can it allow the
can be within RTC? amendment.
A: NO, Not allowed. When you amend, it 3. To cure a premature or non-existent cause of
presupposes that the court at first instance has action.
JURISDICTION in the first place Q: Is there a distinction between a
AMENDMENT OF ORIGINAL COMPLAINT premature/non-existent cause action, from an
CANNOT BE ALLOWED TO CONFER imperfect cause of action?
JURISDICTION UPON THE COURT A: Yes, in a non-existent cause of action, there is
Illustrative case: yet no delict or wrong or act or omission
Tirona v. Alejo, G.R. No. 129313, October 10, committed by the defendant. Whereas in an
2001 imperfect cause of action, there is already a delict
FACTS: Petitioners sued private respondent Luis or wrong, or act or omission has already been
Nuñez before the MTC for ejectment on the committed as alleged in the complaint but the
34 cause of action is stated in an incomplete
ground of forcible entry . Nuñez admitted in his
answers that petitioners owned the fishponds, but manner. A non-existent cause of action is not
denied the other allegations. He raised the curable by amendment. Whereas an imperfect
following affirmative defense that MTC had no cause of action is curable by amendment.
jurisdiction over the case, for petitioners' failure to Illustrative case:
allege prior physical possession in their UNLESS THE PLAINTIFF HAS A VALID AND
complaint. The petitioners sought to amend the SUBSISTING CAUSE OF ACTION AT THE
complaint by adding an allegation that they had TIME HIS ACTION IS COMMENCED, THE
prior physical possession DEFECT CANNOT BE CURED OR REMEDIED
ISSUE: WON the amendment may be allowed BY THE ACQUISITION OR ACCRUAL OF ONE
HELD: NO because purpose of the amendment WHILE THE ACTION IS PENDING, AND A
in this case is to confer jurisdiction upon the court SUPPLEMENTAL COMPLAINT OR AN
which the said court never had under the original AMENDMENT SETTING UP SUCH AFTER-
complaint. The policy in this jurisdiction is that ACCRUED CAUSE OF ACTION IS NOT
amendments to pleadings are favored and PERMISSIBLE
liberally allowed in the interests of substantial SWAGMAN HOTELS v. CA, G.R. No. 161135.
justice. Thus, amendments of the complaint may April 8, 2005
be allowed even if an order for its amendments of F: Swagman through its Pres and VP made
the complaint may be allowed even if an order for utang 150k$ kay to a certain person. It was
its dismissal has been issued so long as the evidenced by 3PN (each woth 50k$)
motion to amend is filed before the order of
dismissal acquired finality. However, that it is not 1PN- dated august 7 1996
a hard and fast rule. An amendment is not 2PN- 14 march 1997
allowed where the court has no jurisdiction 3PN – 14 july 1997
over the original complaint and the purpose
of the amendment is to confer jurisdiction In1998 Dec, Christian informed Corporation that
upon the court, or where the action originally he was terminating the loans and demanded the
pleaded in the complaint was outside the amount + unpaid interests. Because nothing
jurisdiction of the court. Where the court of happend, on Feb 2 1999, creditor filed complaint
origin had no jurisdiction over the original that the utangs were made on those date.
complaint in the first place, amendments may not
be had. It is axiomatic that before an amendment At the tme complaint was filed, the notes were
can be permitted, the trial court must have not yet due and demandable
acquired jurisdiction over the case in the first
instance. TC: When the instance case was filed on Feb
RATIO: For a court to have an authority to 1999, none of the notes was due and
amend the complaint, it must have jurisdiction demandable. As of this date however, )date of
nd
decision of court, May 5, 2000) the fist and 2
PN have already matured hence payment is
33
Claim must be more than 300k(others)/400k(manila) for RTC to have already due. Under Sec 5 of Rule 10, may be
jurisdiction cured by evidence presented w/o objection, thus
34
Kapag forcible entry, jurisdictional or material matter ang allegation
without not cause of action, he may nevertheless
that the plaintiff had prior physical possession. In unlawful detainer,
hindi, because in unlawful detainter, the possession of the defendant is recovered to PN in view of the evidences
initially lawful. It only became unlawful upon the termitaion of the right showing that said PN are now due and
to possess the proper (e.g. by termination of the contract of lease). demandable. In the course of trial it became due.
Whereas in forcible entry, the possession of the defendant is illegal No objection and hence conformed by the
from the beginning, hence, an allegation of prior physical possession is evidence
jurisdictional.

REMEDIAL LAW
CIVIL PROCEDURE
A1: Yes, a plaintiff can state as many cause of action
CA: sustained the ruling, in the alternative or otherwise, and the consistency in
one statement of a cause of action will not render the
SC: NOT CORRECT. A matter there cannot be entire pleading dismissable so long as the other
amendment in order to cure cause of action. causes of action alleged is sufficient in itself. The
When any complaint for sum of damages, no rules is that alternative causes of action may be
cause of action has existed because petitioner inconsistent with each other.
has not violated an act in violation of his Q2: Is the amendment substantial?
obligation. WIhout cause of action, respondent A2: Yes, the evidence available to meet the original
has no right to maintain an action before the complaint would no longer be sufficient to meet the
court and it hould have dismissed the case. amended complaint. Under the original complaint, the
evidence only pertains to the sale, now, there must be
Interpeting Sec 5 of Rule 10, such interpretation evidence against the complaint?
made by two courts is erroenoeus.
However, the curing effect under Sec 5 is WHAT IS MEANT BY AMENDMENT TO CONFORM TO
APPLICABLE ONLY if a cause of action in fact EVIDENCE
exist at the time complaint is filed.
Sec. 5. Amendment to conform to or authorize
RULING: It thus follows that a complaint presentation of evidence. When issues not raised by
whose cause of action has not yet accrued the pleadings are tried with the express or implied consent
cannot be cured or remedied by an amended of the parties, they shall be treated in all respects as if
or supplemental pleading alleging the they had been raised in the pleadings. Such amendment
existence or accrual of a cause of action of the pleadings as may be necessary to cause them to
while the case is pending. The underlying conform to the evidence and to raise these issues may be
reason for this rule is that a person should not be made upon motion of any party at any time, even after
summoned before the public tribunals to answer judgment; but failure to amend does not affect the result of
for complaints which are immature. As this Court the trial of these issues. If evidence is objected to at the
eloquently said in Surigao Mine Exploration Co., trial on the ground that it is not within the issues made by
Inc. v. Harris: ―It is a rule of law to which there the pleadings, the court may allow the pleadings to be
is, perhaps, no exception, either at law or in amended and shall do so with liberality if the presentation
equity, that to recover at all there must be of the merits of the action and the ends of substantial
some cause of action at the commencement justice will be subserved thereby. The court may grant a
of the suit. Xxx‖ continuance to enable the amendment to be made.
Q: Is the failure to state a cause of action curable
―When issues not raised by the pleadings are tried
by amendment? with the express or implied consent of the parties,‖
A: Yes. It is curable by amendment. It is merely
an imperfect statement of a cause of action. It is Q: What kind of consent?
not where there is a non-existent cause of action.
A: i. Express, tinanong ka at ang sagot mo ay oo; ii.
RULES IN RELATION TO STATUTE OF LIMITATIONS Implied, nagprepresent ng evidence pero di ka nag object.
OR PRESCRIPTION
―Such amendment of the pleadings as may be
Q: If a complaint is amended, when is the statute of
necessary to cause them to conform to the evidence
limitations interrupted?
and to raise these issues may be made upon motion
A: It depends upon the nature of the amendment. If the
of any party at any time, even after judgment‖
amendment produces/introduces a new cause of action,
then the statute of limitations is interrupted as to the new - So pwede kang magamend kasi nakapagpresent
cause of action on the date of the filing of the amended ka na ng ebidensya either by express or implied
complaint. But where the amendment merely completes consent of the parties
an imperfect statement of a cause of action, the plea of
statute of limitations relates to the date of the filing of the
original complaint. ―but failure to amend does not affect the result of the
HYPOTHETICAL QUESTIONS trial of these issues‖
FACTS: Plaintiff files an action against the defendant
- Even if no actual amendment to the pleading is
for the reconveyance of a real property. The basis of
made, the court can still render judgment based
his cause of action is that he bought the property. on the presented evidence even if there’s no
After an answer was filed, the defendant disclaiming actual/formal amendment of the pleading.
that the plaintiff bought the property, the latter filed an Because it is already as if an amend was made.
amendment complaint adding a new cause of action - (take note- kung hindi default pwd mong dagdag
claiming that he inherited it. cause of action provided di siya nag-object—
Q1: May the two causes of actions be joined in one express or implied---ung implied tulog).
complaint?

REMEDIAL LAW
CIVIL PROCEDURE
Q: Is amendment to conform to evidence ―If evidence is objected to at the trial on the ground
compulsory? that it is not within the issues made by the pleadings,
the court may allow the pleadings to be amended and
A: No, because failure to amend does not affect shall do so with liberality if the presentation of the
the result of the trial of the issues. Besides, merits of the action and the ends of substantial justice
unless the defendant is in default, the plaintiff is will be subserved thereby.‖
entitled to judgment on the issues proved by him
in the trial, although not alleged. Q: So again, what is the test?
- For e.g complaint alleges ownership on the A: the ends of substantial justice would be
allegation that he acquired such title thru a sale, served.
when P presents evidence he was showing to
court that it is based on inheritance ( pag tutulog
tulog ka, bahala ka, failed to object), not alleged Section 7. Filing of amended pleadings. — When
in the pleading and pre-trial. Napasok niya ung any pleading is amended, a new copy of the entire
inheritance- there is an amendment to the pleading, incorporating the amendments, which shall be
pleading even no if there was no actual/formal indicated by appropriate marks, shall be filed. (7a)
amendment.
- Evidence is admissible if material, relevant and if Q: When a pleading is amended, what technical
not excluded by the rules unless you failed to requirements must the pleader comply?
object. ( as the above example, relevant- claim of A: When any pleading is amended, a new copy of the
ownership – based on inheritance- irrelevant) entire pleading, incorporating the amendments, which
- For e.g. complaint seeing damages for 1m, shall be indicated by appropriate marks, shall be filed
presented evidence showing 2m. Pwede ba yun?
If defendant did not object. - Iunderline mo ung mga amendments na dagdag,
- Where the theory of plaintiff is based on pero ung mga bawas, paano mo mamark un?
Escolin: I have no idea
inheritance. During trial, presented evidence that
he acquired by sale. May the court used that in
resolving the case? YES. Implied consent of the EFFECT OF AMENDMENT
parties. Even without amendement of plaintiff will
not affect the result of the trial of the issues. Section 8. Effect of amended pleadings. — An
- WHEN RULE NOT APPLICABLE: A: defendant amended pleading supersedes the pleading that it
is declared in default. Hence, judgment should be amends. However, admissions in superseded pleadings
may be received in evidence against the pleader, and
based on the prayer of the complaint
claims or defenses alleged therein not incorporated in the
IN RELATION TO DEFAULT
35 amended pleading shall be deemed waived. (n)
 If the party has been declared in default, the ―An amended pleading supersedes the pleading that
court cannot render a judgment granting an it amends.‖
amount more than or different from that Q: What are the effects of an amended pleading?
prayed for. A: The effects are:
Q: If the other party has not been declared in i. The original ceases to be part of the records;
default, can you present evidence other than it even ceases to be a judicial admission.
what is alleged in the pleading, can the court  ―When a pleading is amended, the original
grant you more relief? e.g. sabi dun sa pleading is deemed abandoned. The original
complaint, ang ginastos niang actual ceases to perform any further function as a
damages is 100k pero pagdating sa trial, pleading. The case stand for trial on the
amended pleading only.‖ (MAGASPI vs
nagtestify ngayon ung plaintiff, 200k na daw.
RAMOLETE)
What if the party failed to object, or
ii. If the amended pleading did not reiterate the
nagobject but the plaintiff invoked substantial admissions made in the original, it ceases to be
justice (may resibo) a judicial admission.
Q: Can you still prove such admissions?
A: Yes. Kung not in default, pwede igrant
A: Yes. Such admissions in the superseded
ang 200k. pero kapag nadeclare in default,
pleading may be received in evidence
hindi na pwede.
against pleader. You may present them
as evidence.
iii. The claims or defenses alleged in the original
pleading not incorpoarated in the amended
35 pleading shall be deemed waived
“(d) Extent of relief to be awarded. — A judgment rendered
against a party in default shall not exceed the amount or be different in
kind from that prayed for nor award unliquidated damages. (5a, R18).” Superclean v. CA, G.R. No. 107824, July 5, 1996

REMEDIAL LAW
CIVIL PROCEDURE
FACTS: Petitioner Superclean is engaged in janitorial NOTE: Q: what do you amend? A: Allegations
services. Before the end of its janitorial contract, a public constituting the party’s cause of action or defense. Here,
bidding was made. For that recent public bidding, what the plaintiff was asking is the damages, the relief,
petitioner superclean also won. However, private un lang pinapaamend nia kasi di na sia makahingi ng
respondent Home Development and Mutual Fund specific performance. This was actually amendment in
refused without just cause to award the contract to it and the real sense, and not supplemental. And the
instead caused a rebidding. Hence, superclean filed an amendment in this case was not substantial. It never
action for Mandamus/Certiorari With Preliminary changed the theory. In otherwords, the evidentiary
Injunction And/Or Restraining Order to compel defenses remains the same.
respondent. The bidding was only for one year, however,
the cases was pending has already been pending for ONCE THE AMENDED ANSWER HAS BEEN
more than a year. Nagmoot na, paano pa maaward ang ADMITTED, THE ORIGINAL ANSWER CEASES TO
contract e lumagpas na ang one year. Thus, petitioner EXISTS WITH ITS FORMER PLACE BEING TAKEN BY
moved for the admission of a Supplemental Complaint THE AMENDED ANSWER
(NOTE: Amendment ang ginamit ni sir dito kahit
supplemental complaint nasa kaso. Technically, hindi Illustrative case:
supplemental kasi available na claims at time of filing of
Aznar v. Bernad, G.R. No. 81190, May 9, 1988
pleading), this time claiming relief consisting in unrealized
profits, exemplary damages and attorneys fees, because FACTS: Spouses Kintanar (private respondents), as
it can no longer ask for the enforcement of the contract, plaintiffs, filed in the Regional Trail Court of Cebu, a civil
the one year period having lapsed. The RTC and CA action against the defendants-spouses Aznar, the herein
denied the said motion. Its ruling was based on the fact petitioners, praying for the annulment of a Sheriffs
that the relief sought in the Supplemental Complaint was Certificate of Sale, damages, and atty. fees. The
different from that contained in the original complaint defendants Aznar, on October 13, 1986, timely filed their
which sought to compel private respondent to recognize answer. Seven days later, or on October 20, 1986, the
petitioner as the lowest qualifying bidder, hence, a defendants Aznar submitted 'Motion For Leave to Amend
substantial amendement. Answer Or To File Supplemental Pleading, attaching
ISSUE: WON the Supplement (Amendment) is thereto a copy of the amended answer which alleged the
substantial affirmative defense of prescription. The motion was denied
HELD: NO. the plaintiff did not change his theory. The on the basis of section 2, Rule 9, of the Revised Rules of
new relief sought was based on the same delict or wrong, Court which provides that defenses or objections, except
that is, the failure to execute to contract. Indeed the new the failure to state a cause of action, if not pleaded in a
relief sought (payment of damages in lieu of an motion to dismiss or in an answer, are deemed waived.
award of the contract for janitorial services) is
actually an alternative remedy to which petitioner ISSUE: WON is it correct on the part of the lower court to
was entitled even before at the time of the filing of its deny the admission of the amended answer.
original complaint. If petitioner was entitled to the award
of the contract, as it claimed it was, it could have asked HELD: NO. In this case, the amendment of the answer
either for an award of the contract for janitorial services was still a matter of right since no reply (the responsive
or for damages. The fact that it opted for the first does pleading in the answer) was yet served. The general rule,
not preclude it from subsequently claiming damages it is true, is that the affirmative defense of prescription
because through no fault of its own, the year passed when not seasonably raised in either a motion to dismiss
without an award in its favor, with the result that it could or in the answer, is deemed waived. This case, however,
no longer demand the execution of a contract in its favor does not fall under the cited rule (since the amendment
after that year. The so-called Supplemental Complaint was still a matter of right). It cannot be said that the
filed by petitioner should simply be treated as petitioners failed to allege the defense of prescription
embodying amendments to the original complaint or in their answer. Precisely, the amended answer is
petitioner may be required to file an amended being submitted to take the place of the original one.
complaint. An amendment to change the relief sought Once the amended answer is admitted, the original
does not change the theory of a case. What is prohibited answer and ceases to exist with its former place
is a change in the cause of action. Because the cause entirely taken over by the amended answer. It is clear,
of action on which the complaint for mandamus and therefore, that the reliance of the trial court on the case of
injunction and the so-called Supplemental Complaint Torreda vs. Boncaros is misplaced. That case involved a
are based is one and the same, the issue raised is supplemental motion to dismiss alleging the defense of
the same, namely, whether private respondent was prescription and not an amended answer as in this case.
justified in refusing to award the contract for There is a whale of a difference between an amendment
janitorial services to petitioner. Furthermore, There and a supplement. First, a supplemental motion to
will be no unfairness or surprise to private dismiss, strictly speaking, is not a pleading. 9 Further, as
respondent, because after all private respondent will differentiated from an amended pleading which, as
have a right to file an amended answer and present aforestated, takes the place of the original pleading, a
evidence in support thereof. supplemental pleading does not extinguish the existence
of the original. As its very name denotes, it only serves to

REMEDIAL LAW
CIVIL PROCEDURE
bolster or adds something to the primary pleading. A DEFENDANT HAS APPEARED; BUT THE
supplement exists side by side with the original. It does AMENDMENT IN SUCH CASE MUST BE
not replace that which it supplements. Moreover, at the SUBSTANTIAL (De dios v. CA, infra)
time the petitioners moved to have their original Q: Is summons required on an amended complaint? A: It
answer amended, they still had the right to do so. The DEPENDS on whether the amendment was made before
records do not show that a responsive pleading, like a or after the dependant’s appearance in the action. A
reply, to the original answer, has already been served
complaint amended before a defendant answered must be
to the petitioners by the private respondents. Lastly,
served with another summons with the same formalities as
even assuming that the petitioners had indeed failed to
the original complaint. Once defendant has already
raise the affirmative defense of prescription in a motion to
appeared in the action, meaning, the court has already
dismiss or in an appropriate pleading (answer, or
amended or supplemental answer) and an amendment acquired jurisdiction over him, an amendment of the
would no longer be feasible, still prescription, if apparent complaint made after such appearance may be served
on the faceof the complaint, may be favorably considered. upon the defendant in any same manner as any other
pleading, paper or motion. But note De dios v. CA, infra.
EXAMPLE OF SUPPLEMENTAL PLEADINGS: e.g. If where it was held that The rule is that it is only when
promissory note is paid in installment. Each installment new causes of action are alleged in an amended
can be the subject of an action separate from each other, complaint filed before the defendant has appeared in
the only qualification is that if at the time of the filing of the court that another summons must be served on the
original, many installments were already due, you have to
defendant with the amended complaint
include all in the complaint. Otherwise, such would
constitute splitting of causes of action. The other way of RULE 11
doing it, assuming no escalation clause, is that once each
installment becomes due, you just file a supplement WHEN TO FILE RESPONSIVE PLEADING
pleading with the same court.
Section 1. Answer to the complaint. — The

SUPPLEMENTAL PLEADINGS, ALWAYS UPON defendant shall file his answer to the complaint within
MOTION fifteen (15) days after service of summons, unless a
different period is fixed by the court. (la)
Section 6. Supplemental pleadings. — Upon
motion of a party the court may, upon reasonable notice ―The defendant shall file his answer to the complaint
and upon such terms as are just, permit him to serve a within fifteen (15) days after service of summons,‖
supplemental pleading setting forth transactions,
occurrences or events which have happened since the - Start counting from the service of summons
date of the pleading sought to be supplemented. The
―unless a different period is fixed by the court. (la)‖
adverse party may plead thereto within ten (10) days from
notice of the order admitting the supplemental pleading. Q: When may the court fix a different period for filing
(6a) an answer?
A: Other instances where court may allow other period:

Q: If you amend a complaint, shall it always be by leave of 1) where the defendant is unknown, or whenever
court? his whereabouts are unknown and cannot be
ascertained by diligent inquiry (Sec. 14 Rule 14)
A: Not necessarily, may be by matter of right.
 you cannot serve personal service of
Q: HOW ABOUT IN SUPPLEMENTAL PLEADING? summons. In which case, summons may be
done by publication and the court has now
A: NO. Different rule, it is not a matter of right. It is always
the discretion to fix a different period.
UPON MOTION OF A PARTY.
2) When the defendant does not reside and is
- Where a supervening event does not reinforce not found in the Philippines (Sec 15 of Rule
or aid the original demand but because of it a 14)
plaintiff’s demand could no longer be enforced,  ―Any order granting such leave shall specify
thus justifying the change in relief sought, such a reasonable time, which shall not be less
party’s remedy is not to supplement but rather to
than sixty (60) days after notice, within which
amend its complaint. (Superclean vs CA)
the defendant must answer. (17a)‖
NECESSITY OF SUMMONS  Under sec. 15, where the defendant is not a
Q: Is there a need for new summons? resident AND is not found in the Philippines,
SUMMONS MUST AGAIN BE SERVED IF AMENDMENT and summons is made in any of the modes
OF THE COMPLAINT WAS MADE BEFORE THE here stated. The court may, in the order

REMEDIAL LAW
CIVIL PROCEDURE
granting, order a period but in no case not ANSWER TO AMENDED COMPLAINT
less than 60 days. Section 3. Answer to amended complaint. —
3) When the defendant is a resident but When the plaintiff files an amended complaint as a matter
temporarily out of the Philippines (Sec 15 of of right, the defendant shall answer the same within fifteen
Rule 14) (15) days after being served with a copy thereof.
 ―Section 16. Residents temporarily out of
the Philippines. — When any action is
commenced against a defendant who Where its filing is not a matter of right, the defendant shall
ordinarily resides within the Philippines, but answer the amended complaint within ten (l0) days from
who is temporarily out of it, service may, by notice of the order admitting the same. An answer earlier
leave of court, be also effected out of the filed may serve as the answer to the amended complaint if
Philippines, as under the preceding section. no new answer is filed.
(18a)‖
 Preceding section states ―which shall not be
less than sixty (60) days after notice, within This Rule shall apply to the answer to an amended
which the defendant must answer.‖ counterclaim, amended cross-claim, amended third
(fourth, etc.)—party complaint, and amended complaint-in-
IF THE DEFENDANT FAILS TO FILE AN ANSWER; intervention. (3a)
NOT DEEMED TO HAVE ADMITTED; MAY BE
DECLARED IN DEFAULT UPON MOTION AMENDED COMPLAINT AMENDMENT NOT A
AS MATTER OF RIGHT MATTER OF RIGHT ( BY
Q: If the defendant fails to file an answer, should he LEAVE OF COURT)
be deemed to have admitted the material allegations
in the complaint? answer the same within within ten (l0) days from
fifteen (15) days after notice of the order
A: NO. However, in such case, the defendant may be being served with a copy admitting the same.
declared in default. If declared in default, ex parte thereof.
proceedings na. - Count ten days not
- Within fifteen from receipt of the
ANSWER OF A DEFENDANT FOREIGN PRIVATE days from amendment complaint
JURIDICAL ENTITY service of the but from the order
copy of the admitting the
W/ AGENT W/O AGENT, AND amended amendment
SERVICE UPON GOV‘T complaint - The reason is there
OFFICIAL - The reason is must be leave. You
there is no need must wait for the
Rule 14 Sec. 12. Service Rule 11 Sec. 2. Answer of for court approval. admission of the
upon foreign private a defendant foreign amendment.
juridical entities. — private juridical entity. —
When the defendant is a Where the defendant is a
foreign private juridical foreign private juridical entity NOTE: An answer earlier filed may serve as the
entity which has and service of summons is answer to the amended complaint if no new answer is
made on the government filed.
transacted business in the
Philippines, service may official designated by law NOTE: This Rule shall apply to the answer to an amended
be made on its resident to receive the same, the counterclaim, amended cross-claim, amended third
agent designated in answer shall be filed within (fourth, etc.)—party complaint, and amended complaint-in-
accordance with law for thirty (30) days after receipt intervention.
that purpose, xxxx, or on of summons by such entity.
any of its officers or (2a) ANSWER TO COUNTERCLAIM OR CROSS-CLAIM
agents within the Section 4. Answer to counterclaim or cross-
Philippines. claim. — A counterclaim or cross-claim must be answered
within ten (10) days from service. (4)
15 days from service of NOTE: Count the 30 days
summons upon its not from the receipt by the NOTE: This rule has more relevance to a permissive
resident agent designated government counterclaim which has to be answered.
designated in accordance official but from the receipt
with law or on any of its of summons by the COMPULSORY COUNTERCLAIM NEED NOT BE
officers or agents within defendant foreign private ANSWERED; MAY NOT BE DECLARED IN DEFAULT
the Philippines. juridical entity. –kahit na
service na sa government Q: If the defendant plead a counterclaim in the answer, is
official. it necessary for the original plaintiff to file an answer to the
counterclaim?

REMEDIAL LAW
CIVIL PROCEDURE
Q Pag di niya sinagot, pwede bamadefault ba plaintiff? An amended complaint after a responsive pleading or
a motion of summary judgement has been served –
A: It depends. If the counterclaim is permissive, an aswer by leave of court yan. In which case the reckoning
is ALWAYS required. If it does not rise out of or connected period is from notice of the order admitting the
with the transaction or occurrence which constitutes the amended complaint.
subject matter of the opposing parties claim, it is
necessary for the original plaintiff to answer since the o The answer to the complaint shall serve as an answer
issues therein are new. Accordingly, failure to answer a to the supplemental complaint if no new or
counterclaim is a ground to be declared in default. supplemental answer is filed. The same thing with
However, if the Counterclaim is compulsory, the complaint here, in the second paragraph of Section 3 on
itself would be deemed the answer of the plaintiff in the Amendments. ―An answer earlier filed may serve as
counterclaim because the issues are so inseparable. The the answer to the amended complaint, if no new
issues raised in the counterclaim are deemed answer is filed‖
automatically joined by the allegations of the complaint. Q: What is the implication?
NOTE: CROSS-CLAIM IS ALSO ALWAYS A: If no answer is made to an amended complaint pero
COMPULSORY meron ng previous answer, there was a previous answer
already existing and a supplemental pleading is filed, and
Q: What is the period to answer a counterclaim when
no answer is made, the previous answer will be the
it is amended as a matter of right?
answer for the amended complaint/supplemental ergo, the
A: 10days from service. party cannot be declared in default.
Q: If it is by leave of court? SEC. 8. Existing counterclaim or cross-claim.
A: 10days from the order admitting the amended A compulsory counterclaim or a cross-claim that a
complaint. defending party has at the time he files his answer shall be
contained therein. (8a, R6)
SECTION 5. Answer to third (fourth, etc.)-party
complaint. o Section 8 tells us that a defending party insofar
as his compulsory counterclaim or cross claim is
The time to answer a third (fourth, etc.)-party complaint concerned he should alleged that in his answer.
shall be governed by the same rule as the answer to the Kambal yan. Answer with counterclaim and/or
complaint. (5a) cross claim.
SEC. 9. Counterclaim or cross-claim arising after

Q: What is the period to answer for the third, fourth, answer.
etc. party complaint?
A counterclaim or cross-claim which either matured or was
A: 15 days from the service of summons because acquired by a party after serving his pleading may, with
summons is needed for the court to acquire jurisdiction the permission of the court, be presented as a
over the third party (See section 1). It can also be 30 or 60 counterclaim or a cross-claim by supplemental pleading
days. (See the discussion above, when defendant is does before judgment.
not reside in the Philippines and the if it is a foreign
juridical entity) Q: How do you allege? In what pleading?
A: With leave of court, be presented as counterclaim or a
SEC. 6. Reply. — A reply may be filed within ten (10) cross-claim by supplemental pleading before judgment.
days from service of the pleading responded to. (6)
Q: When should a party respond to such supplemental
Q: When should a reply be responded to?
complaint?
A: None. Last na „yun. You don’t respond to a reply. A: Ten (10) DAYS from the notice of order admitting the
same.
SEC.7. Answer to supplemental complaint.
Q: When should be the counterclaim be filed?
A supplemental complaint may be answered within ten A: Before the prescriptive period, within the time to
(10) days from notice of the order admitting the same, answer because counterclaim must be filed in the answer.
unless a different period is fixed by the court. The answer
to the complaint shall serve as the answer to the
supplemental complaint if no new or supplemental answer SEC. 10. Omitted counterclaim or cross-claim.
is filed. (n)
When a pleader fails to set up a counterclaim or a cross-
o Please remember those pleadings by leave of court. claim through oversight, inadvertence, or excusable
Supplemental complaint by leave of court yan always. neglect, or when justice requires, he may, by leave of

REMEDIAL LAW
CIVIL PROCEDURE
court, set up the counterclaim or cross-claim by answer thereto woud only be a repetition of the
amendment before judgment. aleegations in the complaint
o Section 10 - omitted counterclaim/cross claim. - it

refers to an existing counterclaim or cross claim RULE 12
at the time of the filing of the answer (andun na) BILL OF PARTICULARS
Q: How may you allege it? SEC. 1. When applied for; purpose.
A: It is by amended complaint. (insert section 10)
Q: What is the period to answer? Before responding to a pleading, a party may move for a
A: (10 days?) from NOTICE of admission of the amended definite statement or for a bill of particulars of any matter
complaint. (15, 10 sometimes 30 or 60). which is not averred with sufficient definiteness or
particularity to enable him properly to prepare his
SEC. 11. Extension of time to plead. responsive pleading. If the pleading is a reply; the motion
must be filed within ten (10) days from service thereof.
Upon motion and on such terms as may be just, the court Such motion shall point out the defects complained of, the
may extend the time to plead provided in these Rules. paragraphs wherein they are contained, and the details
desired.
The court may also, upon like terms, allow an answer or
other pleading to be filed after the time fixed by these
- A party of an action may ask for it.
Rules. (7)
- It is a MORE DEFINITE STATEMENT of any
- Even for answers or other pleadings. matter which is not averred with sufficient
definiteness or particularity.
 Ambiguous.
w/in 15 days w/in 10 days w/in 30
days PURPOSE: to enable the party to prepare for his
responsive pleading.
1. Answer to the 1. Answer to 1. Answer
complaint amended of a Q: When to file?
2. Answer of a complaint not foreign A: a motion of BOP may be filed before responding to a
defendant as a matter of corporat pleading (15,10 etc)
foreign private right ion with
If no responsive is allowed or required? 10days after
juridical entitiy if 2. Answer to no
summons is counter or designat service of the pleading upon the movant like a reply
served on its (a) cross calim ed
resident agent 3. Answer to Philippin Q: What shall the motion of Bill of Particulars contain?
designated in supplemental e A: The defects complaint and the details required or the
accordance with complaint represe details to desired
law for that 4. Reply ntative
purpose or any SEC. 5. Stay of period to file responsive pleading.
of its (b) officers
or agents within After service of the bill of particulars or of a more definite
the Philippines. pleading, or after notice of denial of his motion, the moving
3. Answer to party may file his responsive pleading within the period to
amended which he was entitled at the time of filing his motion, which
complaint as a shall not be less than five (5) days in any event.
matter of right
4. Answer to third Q: What is the effect of filing a motion bop on the
th
(4 etc. ) party period for respond/answer?
complaint
A: It is interrupted/stop the filing of bop stays the filing of
5. Answer to
complaint-in- responsive pleading
interevention
Q: WHEN SHOULD THE RESPONSIVE PLEADING BE
FILED:
OPTIONAL RESPONSIVE PLEADINGS: a. When MBOP is granted: the balance will
resume after the service of the bill of particulars.
(will not result in default even if not filed) b. When MBOP is denied: after notice of such
denial.
1. Reply
2. Answer to amended complaint made with leave
AGCANAS V. MERCADO: action was filed on Nov. 25 to
of court
3. Answer to supplemental complaint recover real property and damages. On Dec. 4 (on the
4. Answer to a compulsory counterclaim so ninth day), defendant filed a MBOP, effect: stays the
intimately related to the main action that an running of the period. The motion was received by the

REMEDIAL LAW
CIVIL PROCEDURE
court on Dec. 12, and set for hearing on Dec. 22. SEC. 4. Effect of non-compliance.
However, before Dec. 22, on Dec. 12, defendant filed a
MTD. TC denied the MTD and ordered the defendants to If the order is not obeyed, or in case of insufficient
answer the complaint. Defendant failed to file an Answer, compliance therewith, the court may order the striking out
and he was declared in default. of the pleading or the portions thereof to which the order
was directed or make such other order as it deems just.
ISSUE: Did the TC act correctly in declaring him in (1[c]a)
default?
Q: May a complaint dismiss for ambiguity of
HELD: NO. There was still a suspension of the period to allegation?
file the Answer as the renewal will commence to run again
when there is an order granting (served) or denying it A: No. The ambiguity is a ground of bill of particulars and
(notice of such order). not a ground for dismissal.
Here, the running of the balance of the reglementary Q: What is the effect of the filing of the bill of
period never commenced to run again as there was still an particulars?
unresolved pending incident, which is a MBOP.
A: The court may:
Being unacted upon by the court, the effect is that the
MBOP stays the running from the period from filing a i. order the striking out of the pleading or the
responsive pleading. portions thereof to which the order was directed,
or
ii. make such other order as it deems just.
Q: May the court dismiss the case for failure to comply

SEC. 2. Action by the court. with the order granting the bill of particulars?
Upon the filing of the motion, the clerk of court must A: Yes, although the ambiguity per se is not a ground for
immediately bring it to the attention of the court which may dismissal of the action, the trial court may dismiss the
either deny or grant it outright, or allow the parties the case if the party failed to comply with the order issued by it
opportunity to be heard. grating the bill of particulars
Q: May the court grant/deny the motion for bill of Illustrative cases:
particulars immediately without a hearing?
A: YES. The court may either deny or grant it outright, SANTOS V. LIWAG, G.R. No. L-24238, November 28,
or allow the parties the opportunity to be heard. 1980
FACTS: defendant filed a MBOP as there was no
COMPLIANCE WITH THE ORDER AND EFFECT OF statement of particularity of fraud, etc. Motion was granted
NON-COMPLIANCE and when the plaintiff failed to comply with the order, the
court, acting upon previous motion of the defendant,
SEC. 3. Compliance with order. dismissed the complaint
If the motion is granted, either in whole or in part, the
ISSUE: Was there a proper dismissal of the complaint?
compliance therewith must be effected within ten (10)
days from notice of the order, unless a different period is HELD: YES as there was failure to comply with the order
fixed by the court. The bill of particulars or a more definite of the court.
statement ordered by the court may be filed either in a
separate or in an amended pleading, serving a copy EXCERPT: The present action is one for the annulment of
thereof on the adverse party. (n) documents which have been allegedly executed by reason
of deceit, machination, false pretenses, misrepresentation,
Q: Within what time must the order to file a BOP must be threats, and other fraudulent means. Deceit, machination,
obeyed? false pretenses, misrepresentation, and threats, however,
A: 10 days from the notice of such order are largely conclusions of law and mere allegations
thereof without a statement of the facts to which such
Q: May the Court grant a different period? terms have reference are not sufficient The allegations
A: YES must state the facts and circumstances from which the
fraud, deceit, machination, false pretenses,
Q: How must a party comply? misrepresentation, and threats may be inferred as a
A: either in a separate or in an amended pleading, serving conclusions In his complaint, the appellant merely averred
a copy thereof on the adverse party. that all the documents sought to be annulled were all
executed through the use of deceits, machination, false
Q: How to prepare? pretenses, misrepresentations, threats, and other
A: Governed by the rules on pleading fraudulent means without the particular-facts on which
alleged fraud, deceit, machination, or misrepresentations

REMEDIAL LAW
CIVIL PROCEDURE
are predicated. Hence, it was proper for the trial court
to grant the defendant's motion for a bill of
particulars, and when the plaintiff failed to comply Service is the act of providing a party with a copy of the
with the order, the trial court correctly dismissed the pleading or paper concerned. If any party has appeared by
complaint counsel, service upon him shall be made upon his counsel
or one of them, unless service upon the party himself is
ordered by the court. Where one counsel appears for
Bautista v. Teodoro, G.R. No. L-8894. May 31, 1957
several parties, he shall only be entitled to one copy of any
SYLLABUS paper served upon him by the opposite side. (2a)
PLEADING AND PRACTICE; COMPLAINT; DISMISSAL;

PLAINTIFF‘S FAILURE TO COMPLY WITH ORDER OF 36
COURT. — Where the plaintiff is ordered either to amend FILING SERVICE
the complaint or to file a bill of particulars within ten days DEFINITIO Filing is the act of Act of proving the
from receipt of notice and an extension of two weeks N presenting the copy of pleading to
granted by the Court and plaintiff still fails to comply with pleading or other a party concerned,
said order, the action may be dismissed upon motion of paper to the clerk of
the defendant or upon the Court’s own motion pursuant to court.
Section 3, Rule 30 (now sec. 3 Rule 17) and Section 3,
Rule 16 of the Rules of Court. TO WHOM: to the
adversed party or
TO WHOM: to the party concerned
clerk of court
SEC. 6. Bill a part of pleading.
XPN: If any party
A bill of particulars becomes a part of the pleading for
has appeared by
which it is intended.
counsel, service
Q: What us the effect of the filing of the bill of upon him shall be
particulars on the pleading sought to be made upon his
particularized? counsel or one of
them, unless service
A: The bill of particulars filed under section 6 becomes upon the party
part of the pleading for which it is intended. himself is ordered by
the court.
- Notice or
B. FILING AND SERVICE OF PLEADINGS, service made
JUDGMENTS FINAL ORDERS AND upon a party
RESOLUTIONS who is
represented by
counsel is
RULE 13 nullity. As a rule,
notice to the
FILING AND SERVICE client and not to
his counsel of
record is not
notice in law
Section 1. Coverage. — This Rule shall govern the
unless in
filing of all pleadings and other papers, as well as the instances when
service thereof, except those for which a different mode of the court orders
service is prescribed. (n) service upon
the party or
GR: Rule 13 govern the filing of ALL pleadings and other when technical
papers, as well as the service thereof defect in the
manner of
XPN: Except those for which a different mode of service is notice is
prescribed. waived.
REASON FOR THE
Section 2. Filing and service, defined. — Filing is 36

the act of presenting the pleading or other paper to the In connection with amendment as a matter of right, amendment is a
matter of right generally before a responsive pleading is SERVED. In
clerk of court.
the case of a reply, at any time within ten (10) days after the reply is
SERVED.

REMEDIAL LAW
CIVIL PROCEDURE
RULE: (1) To do (2) By REGISTERED or his counsel,
away with the MAIL. Q: Nagkita kayo
subsequent objection NOTE: The date of the sa kalsada or sa
where a party who mailing as shown by the mall, pwede ba
was served a copy post office stamp on the dun?
may raised the envelope or the registry
defense that he receipt, shall be A: YES
knows nothing about considered as the date
b. By leaving it in
court procedure. AND of their filing. The
his office with
(2) to maintain a envelope shall be his clerk or with
uniform procedure attached to the record of a person having
calculated to place in the case. charge thereof.
competent hands the c. If no person is
- The post office is found in his
orderly prosecution of
an agency of the office, or his
cases.
court. Once office is not
NOTE: Where one mailed, the known, or he
pleading or other has no office,
counsel appears for
paper is then by leaving
several parties, he
considered filed. the copy,
shall only be entitled -
to one copy of any between the
(3) ORDINARY MAIL. hours of eight
paper served upon Private courier in the morning
him by the opposite services and six in the
side. NOTE: As opposed to evening, at the
registerd mail, the date party's or
Where party is of filing in this case is counsel's
represented by the actual receipt by residence, if
counsel, service by a the clerk of court. known, with a
party is not service in person of
law, what constitutes sufficient age
proper service is that and discretion
service to counsel then residing
therein.
MODES (1) PERSONAL THREE MODES: -8am-6pm lang.
37
FILING- by
presenting the (1) PERSONAL -if wala ung
38
pleading or other SERVICE party/counsel dun sa
papers - iba to sa service residence.must be
PERSONALLY to of summons. served to a person
clerk of court Three ways of
with a person of (a)
NOTE: If done personal service:
sufficient age, (b)
personally, the clerk
a. by delivering discretion, and (c)
shall endorse on the
personally a residing therein.
date and hour of
copy to the party
filing. (tatakan niya) - wag mo iwan sa
bata or sa bisita.
37
Section 3. Manner of filing. — The filing of pleadings,
appearances, motions, notices, orders, judgments and all other papers
shall be made by presenting the original copies thereof, plainly
(2) SERVICE BY
indicated as such, personally to the clerk of court or by sending them by 39
registered mail. In the first case, the clerk of court shall endorse on the
MAIL
pleading the date and hour of filing. In the second case, the date of the Two ways of service
mailing of motions, pleadings, or any other papers or payments or by mail:
deposits, as shown by the post office stamp on the envelope or the
registry receipt, shall be considered as the date of their filing, payment, a. By registered
or deposit in court. The envelope shall be attached to the record of the
case. (1a)
38 39
Section 6. Personal service. — Service of the papers may be Section 7. Service by mail. — Service by registered mail shall
made by delivering personally a copy to the party or his counsel, or by be made by depositing the copy in the post office in a sealed envelope,
leaving it in his office with his clerk or with a person having charge plainly addressed to the party or his counsel at his office, if known,
thereof. If no person is found in his office, or his office is not known, or otherwise at his residence, if known, with postage fully prepaid, and
he has no office, then by leaving the copy, between the hours of eight with instructions to the postmaster to return the mail to the sender
in the morning and six in the evening, at the party's or counsel's after ten (10) days if undelivered. If no registry service is available in the
residence, if known, with a person of sufficient age and discretion then locality of either the senders or the addressee, service may be done by
residing therein. (4a ordinary mail. (5a; Bar Matter No. 803, 17 February 1998)

REMEDIAL LAW
CIVIL PROCEDURE
mail WITH proof of
HOW: requisites failure of both
personal service and
i. By depositing service by mail.
42
the copy in the
post office in a NOTE: The service is
sealed envelope, complete at the time
ii. plainly of such delivery. (6a)
addressed to the
party or his
counsel at his
office, if known, CAVEAT:
otherwise at his JUDGMENT FINAL
residence, if ORDER, OR
known, RESOLUTION;
iii. with postage WHEN ONLY BY
fully prepaid,
PERSONAL
and
iv. with instructions SERVICE,
to the postmaster REGISTERED MAIL,
to return the mail OR PUBLICATION:
to the sender Section 9. Service of
after ten (10) judgments, final
days if orders, or
undelivered. resolutions. -
b. By ordinary mail
-generally, dapat i. Judgments,
registered mail. ii. final orders,
The only instance or
when ordinary iii. resolutions
mail is allowed is -shall be served
when no either (3 ways)
registry service
i. personally
is available in
or
the locality of ii. by
either the registered
senders or the mail.
addressee NOTE: When a party
summoned by
publication has
(3) SUBSTITUT failed to appear in
40 the action, judgments,
ED SERVICE
Situatition: when the final orders or
office and place of resolutions against
residence of the party him shall be served
or his counsel being upon him also by
41 publication at the
unknown.
expense of the
To whom: service prevailing party. (7a)
may be made by
delivering the copy iii. by
to the clerk of court, publication
40
Section 8. Substituted service. — If service of pleadings,
motions, notices, resolutions, orders and other papers cannot be made
under the two preceding sections, the office and place of residence of
the party or his counsel being unknown, service may be made by
delivering the copy to the clerk of court, with proof of failure of both Papers Section 4. Papers required to be filed
personal service and service by mail. The service is complete at the time required to and served. — Every
of such delivery. (6a)
41 be filed
Escolin’s view: Di’ba counsel must give the court his address, kaya 1. judgment,
lang kung naglipat then di ininform ang court. is the sending of notice in
the former address will be considered his address official? YES. At that
42
time, his address is legally known, may record pa. but some decisions Escolin: Di ko nga maintindihan ito, paano mo ipprove e wala ngang
said na dapat daw mag substituted service na. address.

REMEDIAL LAW
CIVIL PROCEDURE
and 2. resolution, of the after mailing,
served. 3. order, responsive unless the court
4. pleading subsequent to the complaint, pleading. otherwise
- ―subsequent to the complaint‖- Since -must be provides.
in case of the complaint, the procedure complete
is after it is filed, summons is served. service
5. written motion, (3) IF BY
6. notice, appearance, SUBSTITUTED
7. demand, SERVICE- The
8. offer of judgment or service is complete at
9. similar papers shall be filed with the the time of delivery
court, and served upon the parties to the clerk of court.
affected. (2a) PROOF i. If in the record: i. IF BY
WHEN (1) IF BY The filing of a PERSONAL
COMPLET PERSONAL pleading or paper SERVICE
ED -
43
so SERVICE- Personal shall be proved by a) By written
that you will service is complete its existence in admission of
upon actual delivery the record of the the party
know when 45 46
case. served, or
to count the
period, if it (2) IF BY MAIL
is ii. If it is not in the b) official return of
necessary record, but is the server, or
to respond a. If by registered claimed to have -if it emanates
44
mail - complete been filed from the court.
-ibig upon actual personally: the
sabihin receipt by the filing shall be
tatakbo na addressee, or proved by the
ung period after five (5) written or c) the affidavit of
kung may days from the stamped the party
date he acknowledgment serving,
period
received the of its filing by the
- WHEN IS FIRST notice of clerk of court on a
the postmaster, copy of the same; ii. IF THE SERVICE
THE IS BY
ADDRESS whichever date
is earlier. ORDINARY
EE DEMED MAIL
TO HAVE -―whichever date is iii. If filed by
earlier‖- e.g. registered mail: by a. proof thereof
RECEIVED the registry shall consist of
IT , for the magstart ka 5 days
receipt AND by an affidavit of
purpose of from the date the the person
the affidavit of the
counting addressee received mailing of facts
person who did
the first notice of the the mailing. showing
-what is postmaster kahit after compliance with
decisive in 20 days may actual section 7 of this
some case, receipt. Rule (when no
e.g.
whether 45
Section 12. Proof of filing. — The filing of a pleading or paper
amendment shall be proved by its existence in the record of the case. If it is not in
is still a b. If by ordinary
the record, but is claimed to have been filed personally, the filing shall
matter of mail- complete
be proved by the written or stamped acknowledgment of its filing by
right, is not upon the the clerk of court on a copy of the same; if filed by registered mail, by
filing but expiration of the registry receipt and by the affidavit of the person who did the
the service ten (10) days mailing, containing a full statement of the date and place of depositing
the mail in the post office in a sealed envelope addressed to the court,
with postage fully prepaid, and with instructions to the postmaster to
43
Section 10. Completeness of service. — Personal service is return the mail to the sender after ten (10) days if not delivered. (n)
46
complete upon actual delivery. Service by ordinary mail is complete Section 13. Proof of Service. — Proof of personal service
upon the expiration of ten (10) days after mailing, unless the court shall consist of a written admission of the party served, or the official
otherwise provides. Service by registered mail is complete upon actual return of the server, or the affidavit of the party serving, containing a
receipt by the addressee, or after five (5) days from the date he full statement of the date, place and manner of service. If the service is
received the first notice of the postmaster, whichever date is earlier. by ordinary mail, proof thereof shall consist of an affidavit of the person
(8a) mailing of facts showing compliance with section 7 of this Rule. If
44
Escolin: As I was saying, if by registered mail, there is attached to the service is made by registered mail, proof shall be made by such affidavit
mail a registry receipt. The post master of the address will now sent the and the registry receipt issued by the mailing office. The registry return
addressee a notice. Usually tatlong notices yan. Kung wala pa sa third card shall be filed immediately upon its receipt by the sender, or in lieu
notice, back to sender na un. thereof the unclaimed letter together with the certified or sworn copy
of the notice given by the postmaster to the addressee. (10a)

REMEDIAL LAW
CIVIL PROCEDURE
NOTE: containing a registry service is
full statement of the available in the
date and place of locality of either
depositing the mail in the senders or
the post office in a the addressee)
sealed envelope
addressed to the court, iii. IF BY
with postage fully REGISTERED NOTICE OR SERVICE MADE UPON A PARTY WHO IS
prepaid, and with MAIL REPRESENTED BY COUNSEL IS NULLITY. THE FACT
instructions to the a. proof shall be THAT THE CLIENT VOLUNTEERED TO RECEIVE A
postmaster to return made by such COPY OF THE DECISION IS OF NO CONSEQUENCE;
the mail to the sender affidavit and WILL NOT COMMENCE THE RUNNING OF PERIODS
after ten (10) days if b. the registry
not delivered receipt issued by FACTS: In one case, where a party who was represented
the mailing office. by counsel wen to the court to personally ask the status of
c. The registry the case. A court personnel then relayed that there was
return card shall already a decision. The party then and there volunteered
be filed to receive a copy of the decision.
immediately upon
its receipt by the ISSUE: WON there was a proper service of the decision
sender, or or judgment where the party who was represented by
counsel volunteered to receive the copy.
PLUS: if the HELD: When a party is represented by counsel, serive
letter/mail is must be made upon the counsel and not his client. The
unclaimed by fact that the client volunteered to receive a copy of the
addressee, decision is of no consequence. The purpose of the rule is
to maintain a uniform procedure calculated to place in
d. Must be with the
certified or competent hand the orderly prosecution of cases. Since
sworn copy of the decision has not been served to counsel, the remedies
the notice given available has not yet expired. Accordingly, the period
by the within which to appeal or when a decision will become
postmaster to final and executroy has not yet commenced.
the addressee
- Diba, deemed
complete ang
service if by SERVICE AND FILING MUST BE DONE PERSONALLY;
registered by RESORT TO OTHER MODES MUST BE WITH
upon actual EXPLANATION; OTHERWISE, PAPER CONSIDERED
receipt or five NOT FILED.
days after first
Section 11. Priorities in modes of service and
notice, which
ever is earlier filing. — Whenever practicable, the service and filing of
Contents of pleadings and other papers shall be done personally.
certification. Except with respect to papers emanating from the court, a
resort to other modes must be accompanied by a written
- The word explanation why the service or filing was not done
"issued" alone is personally. A violation of this Rule may be cause to
not sufficient to
consider the paper as not filed. (n)
conclude that the
notice was in fact NOTE: resort to other modes must be accompanied by a
received by the written explanation why the service or filing was not done
addressee personally
- The postmaster EFFECT OF NON-COMPLIANCE: A violation of this Rule
should have
may be cause to consider the paper as not filed.
included in his
certification the
a) manner, PERSONAL SERVICE AND FILING IS THE GENERAL
b) date and RULE, AND RESORT TO OTHER MODES OF SERVICE
c) recipient of AND FILING IS THE EXCEPTION; WHENEVER
the delivery. PRACTICABLE, PERSONAL SERVICE OR FILING IS
(Santos v. MANDATORY.
CA, infra.,)
Illustrative case:

REMEDIAL LAW
CIVIL PROCEDURE
Solar vs Ricafort, G.R. No. 132007. August 5, 1998 makes personal service and filing of pleadings mandatory,
especially as the rule specifically uses the word shall,
PURPOSES: Personal service and filing are preferred for unless personal service and filing are shown to be
obvious reasons. Plainly, such should expedite action or impractical. At this stage, the exercise of discretion by the
resolution on a pleading, motion or other paper; and judge does not yet come into play.
conversely, minimize, if not eliminate, delays likely to be
incurred if service or filing is done by mail, considering the
inefficiency of the postal service. Likewise, personal
In case personal service and filing are neither practical nor
service will do away with the practice of some lawyers
feasible then and only then- can the parties avail of other
who, wanting to appear clever, resort to the following less
modes of service and filing, e.g., by registered mail. But
than ethical practices.
resort to other modes must be accompanied by a written
FACTS: Petitioner Solar filed complaint. Summonses and explanation why service and filing are not done personally.
copies of the complaint were served on private From that explanation, the judge will then determine
respondents. Private respondents, as defendants, filed whether personal service and filing are indeed impractical
their Answer (with Counterclaims). A copy thereof was so that resort to other modes may be made. It is only at
furnished counsel for petitioner by registered mail; this stage when the judge may properly exercise his
however, the pleading did not contain any written discretion and only upon the explanation given.
explanation as to why service was not made personally
upon petitioner-plaintiff, as required by Section 11 of Rule
13 of the 1997 Rules of Civil Procedure. PetitionerSolar In the case before us, private respondents gave no
filed a motion to expunge the Answer (with Counterclaims) explanation why they resorted to service by registered
and to declare herein private respondents in default, mail and not by personal service. Absent any explanation,
alleging therein that the latter did not observe the mandate respondent was without any hypothesis on which to
of the aforementioned Section 11, and that there was anchor her finding and conclusion that personal service
absolutely no valid reason why defendants should not was not practicable. In such a situation, respondent judge
have personally served plaintiffs counsel with a copy of could not exercise any discretion any discretion and,
their answer as the office of defendants’ counsel, Atty. consequently, could not deny petitioners motion to
Froilan Cabaltera, is just a stone throw away from the expunge the answer for lack of merit. Respondent judge
office of petitioners counsel, with an estimated distance of did not even cite a single reason why personal service
about 200 meters more or less. Petitioner further alleged was not availed of by private respondents. Consequently,
that the post office was about ten (10) times farther from the conclusion that the motion to strike out private
the office of Atty. Cabaltera. respondents answer filed by petitioner should be denied
HELD: We thus take this opportunity to clarify that under for lack of merit, was without any basis, thus amounting to
Section 11, Rule 13 of the 1997 Rules of Civil Procedure, grave abuse of discretion on the part of respondent judge.
personal service and filing is the general rule, and
resort to other modes of service and filing, the
exception. Henceforth, whenever personal service or RULES in Santos v. CA, infra., in case the registered
filing is practicable, in light of the circumstances of mail is not received by the addressee:
time, place and person, personal service or filing is
mandatory. Only when personal service or filing is not 1. The word "issued" alone is not sufficient to
practicable may resort to other modes be had, which concluded that the notice was in fact received by
must then be accompanied by a written explanation as the addressee
to why personal service or filing was not practicable 2. The postmaster should have included in his
certification the
to begin with. In adjudging the plausibility of an
a. manner,
explanation, a court shall likewise consider the importance b. date and
of the subject matter of the case or the issues involved c. the recipient of the delivery.
therein, and the prima facie merit of the pleading sought to Illustrative case:
be expunged for violation of Section 11. This Court cannot
47
rule otherwise, lest we allow circumvention of the SANTOS vs CA, G.R. No. 128061. September 3, 1998
innovation introduced by the 1997 Rules in order to
obviate delay in the administration of justice.
47
SEPARATE OPINION: I find it difficult to agree with Certification in this case: “This is to certify that according to the
respondent Judge that under the above provision it is record(s) of this Office Registered Letter No. 71154 (with Delivery No.
solely within the discretion of the trial court whether to 30175) sent by (the) Court of Appeals, Manila on June 15, 1995
addressed to Atty. Anacieto S. Magno of 208 Associated Bank Bldg.,
consider the pleading as filed or not. Section 11 requires
Ermita, Manila was returned to sender as unclaimed mail on July 4,
that service and filing of pleadings and other papers shall 1995 after the lapse of reglementary period provided for under postal
be done personally, whenever practicable. In other words, regulations following the issuance of notices on the dates hereunder
when personal service is not done, the party who fails to indicated (underscoring supplied):
comply with the requirement must explain why. This
First Notice - June 15, 1995

REMEDIAL LAW
CIVIL PROCEDURE
FACTS: On 6 June 1995, respondent Court of Appeals actual service the completeness of which is determined
reversed the trial court and declared petitioner liable. On upon receipt by the addressee of the registered mail and,
15 June 1995 the decision of the appellate court was sent second, constructive service the completeness of which is
by registered mail to petitioner's counsel, Atty. Anacleto S, determined, upon the expiration of five (5) days from the
Magno. On the same day, the corresponding notice of date of first notice of the postmaster without the addressee
registered mail was sent to him. Two (2) other notices having claimed the registered mail. The second
were sent to the same addressee on 19 and 21 June circumstance was appreciated by respondent court to
1995. But these circumstances notwithstanding, the mail obtain in the present case. Yet for completeness of
remained unclaimed and consequently returned to the constructive service there must be conclusive proof
sender. that petitioner's former counsel or somebody acting
on his behalf was duly notified or had actually
received the notice, referring to the postmaster's
certification to that effect. Here, private respondent
On 27 July 1995 respondent court again sent its decision
failed to present such proof before respondent court
to the same addressee by the same mode but after three but only did so in the present proceeding
(3) notices the decision was returned to the sender for the
same reason.
As between the claim of non-receipt of notices of

registered mail by a party and the assertion of an official
On 27 September 1995 a notice of change of name and
whose duty is to send notices, which assertion is fortified
address of law firm was sent by petitioner's counsel to
by the presumption that official duty has been regularly
respondent court.
performed, the choice is not difficult to make. But then the
contents of the official's certification may spell the
difference. For, it was not enough for Postmaster
On 28 March 1996 the same decision of respondent court Endaya to have certified that the notices were issued
was sent anew by registered mail to petitioner's counsel at because this is just a prelude to service by registered
his present address which he finally received on 3 April mail. And definitely, it would not be in consonance
1996. On 17 April 1996 he withdrew his appearance as with the demands of due process and equity for us to
counsel for petitioners. automatically conclude that from the word "issued"
alone, the notice was in fact received by the
addressee or somebody acting on his behalf and on
the same date of the notice. The postmaster should
On 18 April 1996 petitioner's new counsel, Atty.
have included in his certification the manner, date and
Lemuel M. Santos, entered his appearance and moved
the recipient of the delivery.
for reconsideration of respondent court's decision of 6
June 1995.
THE OMISSION OR NEGLECT OF THE COUNSEL TO

Respondent Yapchiongco opposed the motion on the INFORM THE COURT OF HIS CHANGE OF ADDRESS
ground that the period for its filing had already expired. He WILL NOT STAY THE FINALITY OF THE DECISION IF
insisted that on the basis of the dates of the notices and NOTICE AND COPY OF THE DECISION WERE
the notation "Unclaimed: Return to Sender" stamped on PROPERLY SENT TO HIS GIVEN MAILING ADDRESS
the envelope containing the decision of respondent court,
MAGNO vs CA, G.R. No. L-58781 July 31, 1987
service by registered mail was complete five (5) days from
15 June 1995, and thus commenced the running of the FACTS: The CA rendered decision affirming the decision
period for reconsideration, the last day being 5 July 1995. of the lower court. Notice of the decision was sent to
Respondent court sustained the opposition and denied the petitioners' counsel Atty. Atinidoro B. Sison at his given
motion
mailing address. The same, however, was returned to the
court with the certification of the postmaster — "Return to
48
sender, Reason — moved." A copy of this Resolution
ISSUE: WON the motion for reconsideration has been was sent to petitioners themselves. But again the
filed out of time enveloped addressed to them was returned to the court
with the notation — deceased.
HELD: NO. It may, be observed that the rule on service by Whereupon, the CA issued its now assailed Resolution
registered mail contemplates two (2) situations: first, ordering the issuance of the entry of judgment. Petitioners'
motion for reconsideration was denied hence, they filed
the present petition
Second Notice - June 19, 1995
48
Third Notice - June 21, 1995*16+” Ibigsabihin lumipat daw address.

REMEDIAL LAW
CIVIL PROCEDURE
letter together with the certified or sworn copy of the
ISSUE: WON there was proper service in this case notice given by the postmaster to the addressee.
HELD: YES. It is well-settled that when a party is
represented by counsel, notice should be made upon the
counsel of record at his given address to which notices of BENGUET ELECTRIVE COOPERATIVE vs NLRC
all kinds emanating from the court should be sent in the
absence of a proper and adequate notice to the court of a DOCTRINE: Where the pleading is filed through a
change of address. The records show that the notice and PRIVATE LETTER-FORWARDING AGENCY, the date of
copy of the decision of respondent Court of Appeals were filing is not the date of delivery to private courier but the
sent to petitioners's counsel of record Atty. Sison. If Atty. date of actual receipt by the court.
Sison moved to another address without informing the
respondent of his change of address, the omission or ADAMSON vs AUFAEA
neglect will not stay the finality of the decision. The Q: Is service to security guard proper service?
notice sent to petitioners themselves, under the A: NO. He’s neither the office clerk nor a person in charge
49
circumstances is not even necessary. thereof as contemplated by the rules.
-Service of papers should be delivered personally to the
FOUR REQUIREMENTS IN CASE OF SERVICE BY party or his counsel or by leaving it at his office with his
50
REGISTERED MAIL clerk or with a person having charge thereof. The service
of the court’s order upon any person other than the party’s
i. AFFIDAVIT, counsel is not legally effective.
ii. REGISTRY RECEIPT,
iii. REGISTRY RETURN CARD,
iv. and if unclaimed, CERTIFICATION BY THE VILLACRUZ vs ESTENCO
POSTMASTER, proof of proper service of A party can only be declared in default upon motion of
pleading and other papers the plaintiff. Effect of default order issued before
Illustrative case: expiration of time to answer: null and void.
ALAMBURO vs CA, G.R. No. 105818, September 17,
1993 SAPIDA vs ARANDONILLA
DOCTRINE: The court cannot justly attribute upon
FACTS: After plaintiff’s complaint was dismissed, the respondents actual knowledge of the order of denial of
plaintiff appealed before CA. Appellant filed his brief, and their motion through registered mail received by their
by registered mail sent the required number of copies counsel where there is no showing that the registry notice
thereof with the appellee. The proof of service which he itself or the envelope or the return card for that matter
presented was only the registry receipt of the mailing contained any indication that the registered matter is
office.
indeed and in fact a copy of said order.
ISSUE: WON the service of the appeal has been
sufficiently proved. PATRICIO vs LEVISTE
DOCTRINE: notice of a motion is required where a party
HELD: NO. Registry return receipt is insufficient to prove
has a right to resist the relief sought by the motion and
service of the appeal. . If service is made by registered
principles of natural justice demand that his rights be not
mail, proof shall be made by such affidavit and the
affected without an opportunity to be heard. Absence of
registry receipt issued by the mailing office. The
notice of motion is a denial of opportunity to be heard.
registry return card shall be filed immediately upon its
receipt by the sender, or in lieu thereof the unclaimed
Section 14. Notice of lis pendens. — In an action
49
affecting the title or the right of possession of real
In the case now before Us, the records show that the notice and copy property, the plaintiff and the defendant, when affirmative
of the decision of respondent Court of Appeals were sent to
relief is claimed in his answer, may record in the office of
petitioners's counsel of record Atty. Atinidoro E. Sison at his given
mailing address which is 33 B.M.A. Avenue, Tatalon, Quezon City. The the registry of deeds of the province in which the property
first notice to him by the Postmaster to claim his mail was on July 9, is situated notice of the pendency of the action. Said
1981. The rule is that service of notice becomes effective at the notice shall contain the names of the parties and the
expiration of the five-day period upon failure of the addresse to claim object of the action or defense, and a description of the
his mail within five (5) days from the date of first notice Sec. 8, Rule 13 property in that province affected thereby. Only from the
Rules of Court (Feraren vs. Santos, 113 SCRA 707). Therefore in this time of filing such notice for record shall a purchaser, or
case the service became effective five days after July 9, 1981 which is
encumbrancer of the property affected thereby, be
July 14, 1981. The decision became final on August 13, 1981
50
No filing will be accepted unless accompanied with the proof service. deemed to have constructive notice of the pendency of the
Nonetheless, sometimes, the actual filing comes ahead in time. If done action, and only of its pendency against the parties
in registered mail, a party may not immediate claim. He has 5 days from designated by their real names.
first notce. Because the mere fact na napinadala na sa registered mail is
already filing.

REMEDIAL LAW
CIVIL PROCEDURE
The notice of lis pendens hereinabove mentioned may be 1. the name of the court and the names of the
cancelled only upon order of the court, after proper parties to the action;
showing that the notice is for the purpose of molesting the 2. a direction that the defendant answer within
adverse party, or that it is not necessary to protect the the time fixed by these Rules;
rights of the rights of the party who caused it to be 3. a notice that unless the defendant so
recorded. (24a, R-14) answers, plaintiff will take judgment by
default and may be granted the relief applied
53
for.
RULE 14 NOTE: A copy of the complaint and order for
appointment of guardian ad litem, if any, shall be
SUMMONS attached to the original and each copy of the
summons.
DEFINITION: Writ or Process issued and served upon
54
defendants in a civil action for the purpose of securing BY WHOM SERVED: The summons may be served by
their appearance.
PURPOSE: Service of summons enables the court to 1. the sheriff,
2. his deputy, or
acquire jurisdiction over the person of the defendant. The 3. other proper court officer, or
other way of acquiring jurisdiction over the person of the 4. any suitable person authorized by the court
51
defendant is by voluntary appearance. Primarily to afford issuing the summons
the defendant the due process of the law. Therefore, in  for justifiable reasons
order to implement such due process, the purpose is to  must be duly authorized by the court, there
confer jurisdiction over defendant w/o w/c the court cannot must be an order
render a valid judgment. Q: May a police sergeant validly serve
EFFECT OF ABSENCE: In the absence of service of summons?
summons, unless the defendant voluntarily appears, the A: NO, he is neither a sheriff, deputy, other
judgment rendered in regard such defendant is null proper court officer, or any suitable person duly
and void because the court has never acquired authorized by the court issuing the summons
jurisdiction over him.
IF WITH SERVICE OF SUMMONS BUT IMPROPERLY
DONE: The court also does not acquire jurisdiction over ENUMERATION OF PERSONS ESPECIALLY
the person if summons not properly served. Hence, also a AUTHORIZED BY THE RULES TO SERVE
null and void judgment in regard such defendant. SUMMONS, EXCLUSIVE.
Section 1. Clerk to issue summons. — Upon the Illustrative case:

filing of the complaint and the payment of the requisite
BELLO vs UBO, G.R. No. L-30353, September
legal fees, the clerk of court shall forthwith issue the 30, 1982
corresponding summons to the defendants. (1a)
BY WHOM ISSUED: the clerk of court FACTS: A sheriff asked a policeman to serve
WHEN ISSUES: Upon the filing of the complaint and the summons for him. The summons in this case was
payment of the requisite legal fees. served by a policeman
TO WHOM ISSUED: to the defendants ISSUE: Was there proper service of summons?
52
CONTENTS: The summons shall be directed to the
defendant, signed by the clerk of court under seal (of the HELD: NONE. A policeman is NOT especially
court), and contain: authorized by the court to serve the summons,
cannot validly serve the court’s summons. The
enumeration of persons who may serve
51
Section 20. Voluntary appearance. — The defendant's summons under Section 5, Rule 14 of the Rules
voluntary appearance in the action shall be equivalent to service of of Court is exclusive. Hence, in the case at bar
summons. The inclusion in a motion to dismiss of other grounds aside where summons was served by a police
from lack of jurisdiction over the person of the defendant shall not be officer who is not included in the
deemed a voluntary appearance. (23a) specification of the said rule, this Court has
52
Section 2. Contents. — The summons shall be directed to to rule that the court which issued the
the defendant, signed by the clerk of court under seal and contain (a)
the name of the court and the names of the parties to the action; (b) a
direction that the defendant answer within the time fixed by these
53
Rules; (c) a notice that unless the defendant so answers plaintiff will If case is covered by summary rules, the summons would also contain
take judgment by default and may be granted the relief applied for. a statement that it is covered by the summary rules.
54
Section 3. By whom served. — The summons may be served
A copy of the complaint and order for appointment of guardian ad by the sheriff, his deputy, or other proper court officer, or for justifiable
litem if any, shall be attached to the original and each copy of the reasons by any suitable person authorized by the court issuing the
summons. (3a) summons. (5a)

REMEDIAL LAW
CIVIL PROCEDURE
summons did not acquire jurisdiction over substituted. if they failed to appear, the court shall order
the person of the defendants. the other party to secure the appointment of a
respresentative.
NOTE: The susbtittuion is proper only if the court acquired

5. XPN: When the defendant is a prisoner, jurisdiction to the party substituted.
service shall be affect by the officer having
the management of such jail or
SUMMONS MUST AGAIN BE SERVED IF AMENDMENT
institution. (warden)
OF THE COMPLAINT WAS MADE BEFORE THE
Section 9. Service upon prisoners. — DEFENDANT HAS APPEARED; BUT THE
When the defendant is a prisoner confined in a AMENDMENT IN SUCH CASE MUST BE
jail or institution, service shall be effected upon SUBSTANTIAL (De dios v. CA, infra)
him by the officer having the management of Q: Is summons required on an amended complaint? A: It
such jail or institution who is deemed deputized DEPENDS on whether the amendment was made before
as a special sheriff for said purpose. (12a) or after the dependant’s appearance in the action. A
complaint amended before a defendant answered must be
- the warden is deemed deputized as a special served with another summons with the same formalities as
sheriff.
the original complaint. Once defendant has already
- This refers only to a prisoner confined in jail, not
to an insane person in a mental hospital. appeared in the action, meaning, the court has already
- The rule does not distinguish between a acquired jurisdiction over him, an amendment of the
convict(by final judgment) and a detainee. complaint made after such appearance may be served
upon the defendant in any same manner as any other
pleading, paper or motion. But note De dios v. CA, infra.
Q: Supposed the penalty has civil interdiction (as
Where it was held that The rule is that it is only when
if minor), is service by the warden proper
new causes of action are alleged in an amended
service?
complaint filed before the defendant has appeared in
A: Escolin: No case pa. pero generally tama court that another summons must be served on the
naman pag sa warden. defendant with the amended complaint
SUMMONS MUST BE SERVED UPON NEWLY

Illustrative case:
IMPLEADED DEFENDANTS
Q: When a complaint is amended by impleading DE DIOS vs CA, G.R. No. 80491 August 12, 1992
additional defendants, is it necessary that summons FACTS: Lopingco filed with the RTC of Manila a complaint
be served upon the additional defendants? against the petitioner and the Philippine Veterans Bank for
A: YES. When an additional defendant are included in the revocation of the said board resolution and the rescission
action, summons must be served upon him for the of his contract with the petitioner. Copies of the complaint,
purpose of enabling the court to acquire jurisdiction over together with the corresponding summons, were served
his person. on the defendants.
CASE
Thereafter, the Philippine Veterans Bank filed a motion to
FACTS: Court merely issued an order making a person a
dismiss the complaint on the grounds of lack of a cause
party-defendant and ordering the process server to serve
action and improper party.
a copy of the complaint over him
HELD: Such is not the process required for bringing him to

the court. There should be summons. Subsequently, Lopingco filed an amended complaint and
at the same time served a copy thereof on the petitioner
SUMMONS IS NOT REQUIRED IN CASES OF by registered mail.
SUBSTITUTION DUE TO DEATH PENDENTE LITE
Q: Must summons be served upon the persons who

substituted a deceased? On the same day, but after the filing of the amended
complaint, Atty. Alarico T. Mundin filed its entry of
A: NO. Under sec. 16 or rule provides that when a party appearance and motion for extension of time to file
dies, the process is substitution and it is the duty of responsive pleading on behalf of the petitioner. The
counsel to infrom fact of client’s death & addresses/ name motion was subsequently granted but only for ten days.
of the representative or representatives of the deceased.
thereafter the court shall issue an order requiring such
representative or heirs to appear before the court and be

REMEDIAL LAW
CIVIL PROCEDURE
Subsequently, the petitioner filed through Atty mundin filed Section 5. Issuance of alias summons. — If a
an omnibus motion asking that he be furnished a copy of summons is returned without being served on any or all of
the amended complaint. This was opposed by the private the defendants, the server shall also serve a copy of the
respondent, who said that the copy sought had already return on the plaintiff's counsel, stating the reasons for the
been sent directly to the petitioner by registered mail failure of service, within five (5) days therefrom. In such a
"because at the time said copy was mailed, there was as case, or if the summons has been lost, the clerk, on
55
yet no appearance of counsel for said defendant." demand of the plaintiff, may issue an alias summons. (4a)
-―alias summons‖, in latin, meaning another

summons.
Due to the absence of an answer, counsel for the private WHEN MAY ALIAS SUMMONS BE ISSUED:
respondent moved for a declaration of default against the
petitioner for failure to file his answer within the 1. If a summons is returned without being
reglementary period. Ultimately, the petitioner was served on any or all of the defendants
declared in default. - On any or all. Kahit isa lang sa defendants.
NOTE: the server shall also serve a copy of the return
on the plaintiff's counsel, stating the reasons for the
ISSUE: WON the defendants should have been served failure of service, within five (5) days therefrom.
again summons because an amended complaint was filed 2. If the summons has been lost
NOTE: the clerk, on demand of the plaintiff, may issue an
alias summons. (4a)
HELD: NO.The rule is that it is only when new causes
COMPARISON
of action are alleged in an amended complaint filed
before the defendant has appeared in court that SERVICE OF SERVICE OF
another summons must be served on the defendant SUMMONS
56
PLEADINGS AND
with the amended complaint. Thus, summon must be (personal, PAPERS
served again only when there is substantial amendment. It substituted, by
is clear from a comparison of the allegations appearing in publication)
the original complaint and in the amended complaint that
the cause of action of the private respondent had not PERSO 1. PERSONAL THREE MODES:
been changed. The allegations were merely made more NAL SERVICE-
descriptive but based on the same act or omission. The SERVIC Section 6. (1) PERSONAL
57
theory of the case did not chage. Plainly, what was sought E Service in SERVICE
to be enforced against the petitioner both in the original person on defendant. - iba to sa service
— Whenever of summons.
complaint and in the amended complaint was his
THREE WAYS of
obligation to refund the said sum to the private practicable, the
personal service:
respondent. The amended complaint did not change the summons shall be
cause of action but simply advanced the above-quoted served by handling a a. by delivering
additional information. copy thereof to the personally a
defendant in person, copy to the
or, if he refuses to party or his
RETURN; Must specify details of failed service. receive and sign for counsel,
it, by tendering it to Q: Nagkita
Section 4. Return. — When the service has been him. (7a) kayo sa
completed, the server shall, within five (5) days therefrom, kalsada or sa
serve a copy of the return, personally or by registered mall, pwede ba
mail, to the plaintiff's counsel, and shall return the dun?
ONE WAY ONLY
summons to the clerk, who issued it, accompanied by A: YES
proof of service. (6a) shall be served by
handling a copy b. By leaving it in
NOTE: It is the duty of the process server, within 5 days thereof to the his office with
from service of summons, to make the return and furnish defendant (ONLY) in his clerk or
plaintiff’s cousel of a copy of the return. - Reason why
plaintiff must be copy furnished; to assure plaintiff that 56
summons were properly served. 57
Section 6. Personal service. — Service of the papers may be
made by delivering personally a copy to the party or his counsel, or by
leaving it in his office with his clerk or with a person having charge
thereof. If no person is found in his office, or his office is not known, or
he has no office, then by leaving the copy, between the hours of eight
55
Naprovide na daw sya ng copy dahil wala pa siya counsel at that time, in the morning and six in the evening, at the party's or counsel's
direkta sakanya sinend. Hence, the rule that notice to counsel is the residence, if known, with a person of sufficient age and discretion then
valid notice is still not applicable. residing therein. (4a

REMEDIAL LAW
CIVIL PROCEDURE
person. NO OTHER. with a person provided in the To whom: service
having charge preceding section, may be made by
thereof. service may be delivering the copy
c. If no person is effected to the clerk of
Q: Can personal found in his court, WITH proof
service be made office, or his of failure of both
anywhere? If the office is not
personal service and
sheriff accidentally met known, or he (a) by leaving copies 61
of the summons at service by mail.
the defendant has no office,
then by leaving the defendant's
NOTE: The service
the copy, residence with
is complete at the
between the some person of
A: YES (Sansio v. hours of eight suitable age and time of such
Mogul, infra.) in the morning discretion then delivery. (6a)
and six in the residing therein,
evening, at the or
party's or
counsel's
residence, if (b) by leaving the
known, with a copies at
person of defendant's
sufficient age office or regular
and discretion place of business
then residing with some
therein. competent
-8am-6pm lang. person in charge
thereof. (8a)
-if wala ung BY 1. Foreign private When a party
party/counsel dun sa PUBLIC juridical entity not summoned by
residence.must be ATION registered in the publication has
served to a person phil. or has no failed to appear in
with a person of (a) resident agent the action,
sufficient age, (b) 2. Defendant whose judgments, final
identy or
discretion, and (c) orders or resolutions
whereabouts are
residing therein. against him shall be
unknown
3. Defendant does served upon him
- wag mo iwan sa also by publication at
not reside and is
bata or sa bisita. the expense of the
not found in the
phil. prevailing party. (7a)
SUBSTI 2. SUBSTITUTED (2) SUBSTITUTED
SERVICE
58
SERVICE
59 4. Residents
TUTED by publication
Situation: If, for Situatition: when temporarily
outside in the phil.
justifiable causes, the the office and place
defendant cannot be of residence of the
served within a party or his counsel PERSONAL SERVICE OF SUMMONS MAY BE MADE
60
reasonable time as being unknown. ANYWHERE TO THE PERSON OF DEFENDANT
HIMSELF PROVIDED HE IS IN THE PHILIPPINES;
NEED NOT BE AT HIS RESIDENCE SO LONG AS
MADE IN HIS PERSON
58
SUMMONS- Section 7. Substituted service. — If, for
justifiable causes, the defendant cannot be served within a reasonable
SANSIO vs MOGUL, G.R. No. 177007, July 14, 2009
time as provided in the preceding section, service may be effected (a) FACTS: At the request of herein petitioner, the Sheriff of
by leaving copies of the summons at the defendant's residence with MrTC of Manila served the summons and the copy of the
some person of suitable age and discretion then residing therein, or (b) complaint on respondent spouses Mogol at the courtroom.
by leaving the copies at defendant's office or regular place of business Respondent spouses were in the said premises. Upon
with some competent person in charge thereof. (8a) being so informed of the summons and the complaint,
59
PAPERS-Section 8. Substituted service. — If service of pleadings,
respondent spouses Mogol referred the same to their
motions, notices, resolutions, orders and other papers cannot be made
under the two preceding sections, the office and place of residence of
counsel, who was also present in the courtroom. The
the party or his counsel being unknown, service may be made by counsel of respondent spouses Mogol took hold of the
delivering the copy to the clerk of court, with proof of failure of both
personal service and service by mail. The service is complete at the time
of such delivery. (6a) time, his address is legally known, may record pa. but some decisions
60
Escolin’s view: Di’ba counsel must give the court his address, kaya said na dapat daw mag substituted service na.
61
lang kung naglipat then di ininform ang court. is the sending of notice in Escolin: Di ko nga maintindihan ito, paano mo ipprove e wala ngang
the former address will be considered his address official? YES. At that address.

REMEDIAL LAW
CIVIL PROCEDURE
summons and the copy of the complaint and read the competent person in charge of the partys office or
same. Thereafter, he instructed his clients not to receive place of business.
the summons and the copy of the complaint as they
should be served only at the address/residence, and not COMMENT: Personal service of summons need not be
anywhere else. The counsel of respondent spouses Mogol made in the residence of the defendant since it is made
apparently gave back the summons and the copy of the personally. In contrast, substituted service must be done
complaint to the process server and advised his clients not in the specified places since it is an extraordinary method
to obtain a copy and sign for the same. Petitioner filed a of service so as to assure that defendant would be
Motion to Declare Respondents in Default. Petitioner notified.
averred that the summons and the copy of the complaint
were already validly served upon the respondent spouses
Mogo, and no answer was filed by them. RULES: SUBSTITUTED SERVICE
ISSUE: Was there valid service of summons?
Section 7. Substituted service. — If, for justifiable
HELD: YES. It is well-established that summons upon a
causes, the defendant cannot be served within a
respondent or a defendant must be served by handing a
reasonable time as provided in the preceding section,
copy thereof to him in person or, if he refuses to receive it,
service may be effected (a) by leaving copies of the
by tendering it to him. Personal service of summons most
summons at the defendant's residence with some person
effectively ensures that the notice desired under the
of suitable age and discretion then residing therein, or (b)
constitutional requirement of due process is accomplished.
by leaving the copies at defendant's office or regular place
The essence of personal service is the handing or
of business with some competent person in charge
tendering of a copy of the summons to the defendant
thereof. (8a)
himself, wherever he may be found; that is, wherever
he may be, provided he is in the Philippines. It may be
served anywhere. Relevantly, in Lazaro v. Rural Bank of
Francisco Balagtas (Bulacan), Inc.,[35] very categorical WHEN SUBSTITUTED SERVICE MAY BE RESORTED
was our statement that the service of summons to be done TO: If, for justifiable causes, the defendant cannot be
personally does not mean that service is possible only at served within a reasonable time (ONLY).
the defendants actual residence. It is enough that the
defendant is handed a copy of the summons in person by - In otherwords, the rules require personal service
anyone authorized by law. must be made first. It is only when personal
service cannot be effected within a reasonal time
COMMENT: What is required is that it be served upon him that substituted service can be done
in person. - Thus, the rules now require that the plaintiff be
given a copy of the return so that the plaintiff may
know whether the service was done properly.
REQUISITES OF A VALID SUBSTITUTED SERVICE OF
PERSONAL SERVICE AND SUBSTITUTED SERVICE SUMMONS: It is only when the defendant cannot be
ARE NOT ALTERNATIVE MODES served personally within a reasonable time that
substituted service maybe resorted to.For substituted
Second issue in Sansio, supra. service to be justified, the following circumstances must be
clearly established:
HELD: Sections 6 and 7 of Rule 14 of the Rules of
Court cannot be construed to apply simultaneously. (a) personal service of summons within a
Said provisions do not provide for alternative modes reasonable time was impossible;
of service of summons, which can either be resorted (b) efforts were exerted to locate the party; and
to on the mere basis of convenience to the parties. - a and b must be stated in the return of service of
Under our procedural rules, service of summons in the summons.
persons of the defendants is generally preferred over (c) the summons was served upon a person of
substituted service.Substituted service derogates the sufficient age and discretion residing at the
partys residence or upon a competent person in
regular method of personal service. It is an extraordinary
charge of the partys office or place of business.
method, since it seeks to bind the respondent or the
defendant to the consequences of a suit, even though
notice of such action is served not upon him but upon SUMMARY OF GUIDELINES: (Impossibility, Return,
another whom the law could only presume would notify Age and discretion, Competent if in office.)
him of the pending proceedings. For substituted service
to be justified, the following circumstances must be Manotoc v. CA, G.R. No. 130974 August 16, 2006
clearly established: (a) personal service of summons We can break down this section into the following
within a reasonable time was impossible; (b) efforts requirements to effect a valid substituted service:
were exerted to locate the party; and (c) the summons (IRAC)
was served upon a person of sufficient age and
discretion residing at the partys residence or upon a (1) Impossibility of Prompt Personal Service:
The party relying on substituted service or the sheriff must

REMEDIAL LAW
CIVIL PROCEDURE
show that defendant cannot be served promptly or there is must know how to read and understand
impossibility of prompt service. English to comprehend the import of the
summons, and fully realize the need to deliver
Reasonable time means one month from the summons and complaint to the defendant
issuance of summons: Reasonable time is at the earliest possible time for the person to
defined as so much time as is necessary under take appropriate action: Discretion is defined as
the circumstances for a reasonably prudent and the ability to make decisions which represent a
diligent man to do, conveniently, what the responsible choice and for which an
contract or duty requires that should be done, understanding of what is lawful, right or wise may
having a regard for the rights and possibility of be presupposed.
loss, if any to the other party
- To the sheriff, reasonable time means There must also be relation of confidence:
15 to 30 days because at the end of the month, it Thus, the person must have the relation of
is a practice for the branch clerk of court to confidence to the defendant, ensuring that the
require the sheriff to submit a return of the latter would receive or at least be notified of the
summons assigned to the sheriff for service. receipt of the summons.
Thus, one month from the issuance of summons
can be considered reasonable time with regard to These matters must also be clearly and
personal service on the defendant. specifically described in the Return of
Summons: The sheriff must therefore determine
Several attempts means at least three (3) if the person found in the alleged dwelling or
tries, preferably on at least two (2) different residence of defendant is of legal age, what the
dates :For substituted service of summons to be recipients relationship with the defendant is, and
available, there must be several attempts by the whether said person comprehends the
sheriff to personally serve the summons within a significance of the receipt of the summons and
reasonable period [of one month] which his duty to immediately deliver it to the defendant
eventually resulted in failure to prove impossibility or at least notify the defendant of said receipt of
of prompt service. Several attempts means at summons.
least three (3) tries, preferably on at least two
different dates. (4) A Competent Person in Charge
- If the substituted service will be done at
NOTE: In addition, the sheriff must cite why such defendants office or regular place of business,
efforts were unsuccessful. It is only then that then it should be served on a competent person
impossibility of service can be confirmed or in charge of the place.
accepted.
Competent persons meanse one managing
(2) Specific Details in the Return the office or the business:Thus, the person on
The facts surrounding the attempted personal whom the substituted service will be made must
service, and efforts exerted must be narrated: be the one managing the office or business of
The sheriff must describe in the Return of defendant, such as the president or manager;
Summons the facts and circumstances and
surrounding the attempted personal service. The
efforts made to find the defendant and the Comprehends the importance of the
reasons behind the failure must be clearly summons: such individual must have sufficient
narrated in detail in the Return. knowledge to understand the obligation of the
defendant in the summons, its importance, and
(3) A Person of Suitable Age and Discretion the prejudicial effects arising from inaction on the
The person must also be a resident: If the summons.
substituted service will be effected at defendants
house or residence, it should be left with a NOTE: Again, these details must be contained
person of suitable age and discretion then in the Return.
residing therein.
Suitable age means atleast 18 years old: A Keister v. Navarro, G.R. No. L-29067, May 31, 1977
person of suitable age and discretion is one who
FACTS: This is an action against Keister, an American, to
has attained the age of full legal capacity (18
years old) and is considered to have enough recover a car. He signed a document selling the car to
discernment to understand the importance of a himself, from the company. He was thereafter fired, and
summons. he went home to the US. A complaint was filed against
Keister. Thereafter, the summons, with the complaint
To be of sufficient discretion, such person attached thereto, was served purportedly upon petitioner
at "c/o Chuidian Law Office, Suite 801, Jimenez Bldg.,

REMEDIAL LAW
CIVIL PROCEDURE
Ayala Avenue, Makati, Rizal." The receipt of service was conceded that the house at 211 Pulang-lupa was still
signed by one Vicente Bataquil, Clerk of said Chuidian owned by petitioners when the service in question
Law Office. Kiester, thru his counsel, filed a special was made, but Section 8 of Rule 14 does not refer to
appearance questioning the jurisdiction of the court over ownership but to living or dwelling therein. It is not
his person and moved to dismiss the complaint. valid to serve summons that a house which though
owned by the defendant is not defendant's dwelling
ISSUE: WON summons was properly served house or residence.
HELD: NO. Generally, the summons must be served to
the defendant in person. It is only when the defendant
PALUWAGAN NG BAYAN v. King, G.R. No. 78252,
cannot be served personally within a reasonable time that
April 12, 1989
a substituted service may be made. Intelligence of
prompt service should be shown by stating the efforts FACTS: Paluwagan contracted with mercantile. Mercantile
made to find the defendant personally and the fact failed to comply with its obligation. Thus, Paluwagan sued
that such efforts failed. This statement should be not only mercantile but also its directors. Summons and
made in the proof of service. copies of the complaints were served upon MFC and
private respondents at the 4th Floor, LTA Building, No.
118 Perea Street, Makati, Metro Manila, which is the
stated office address of MFC in the complaint, through its
Assistant Manager Mr. Nasario S. Najomot Jr. who
AREVALO vs QUILATAN, G.R. No. L-57892 September
acknowledged receipt thereof for and in behalf of MFC
21, 1982
AND the private respondents individual directors
FACTS: A complaint was filed against the defendant. being sued in their personal capacity.(dahil dun din
Summons were issued. Sheriff served the summons upon naman pala nagoopisina). This is so recited in the
the daughter-in-law of the defendant who was residing in a certification of deputy sheriff Bernardo San Juan.
house owned by the defendant. The daughter-in-law Thereafter, atty. aragones, as counsel for the defendants,
relayed to the sheriff that the house is owned by the entered appearance filed a motion for extension of time to
defendant but he is no longer residing therein. ―A fter file the answer. Subsequently, a compromise agreement
serving the summons on August 2, 1968, the Deputy between the parties was entered into, mercantile
Sheriff of Rizal made the following Sheriff's Return: undertaking to pay the obligation in installments.
Mercantile failed to pay in accordance with the
compromise agreement. Because of that, Paluwagan filed
a motion for execution of judgment. Whereupon, atty.
I CERTIFY that on this 2nd day of August 1968, I
Aroganes also filed a motion for the correction of the
personally served copies of enclosed SUMMONS together
compromise agreement attaching a copy that he was only
with copies of the Complaints, issued by the court in
authorized to act in behalf of mercantile but not in behalf of
connection with the above-entitled case, upon
the individual directors.
ANASTACIO AREVALO and PILAR SILVERIO, thru their
daughter-in-law, LUZ ESGUERES, a person with sufficient The directors also moved for the setting aside of the
age and discretion residing therein, who refused to compromise agreement on the ground of lack of proper
acknowledge the receipt thereof, at Pulang-lupa, Las service of summons upon them.
Pinas Rizal.‖
ISSUE: WON there was proper substituted service of
summons upon the directors
ISSUE: WON there was valid service of summons HELD: NO. The service upon the assistant manager
was null and void. There was no compliance with the
HELD: NONE. the return here does not in any remote
requirements of the rule that there must be a previous
sense indicate the impossibility of prompt service and the personal service and a failure to effect the same
efforts made to find the defendants personally, which before substituted service could be resorted to. As the
efforts, according to Moran, "should be (stated) in the private respondents have not been duly served with
proof of service." Nor does such return show on its face summons, the trial court never acquired jurisdiction
that the service was made in the "defendant's dwelling over their persons.
house or residence" as required by Section 8 above. While
it does state that Luz Esgueres, to whom the summons
were left was "a person of sufficient age and discretion Gomez v. CA, G.R. No. 127692. March 10, 2004
residing therein and that she is the daughter-in-law of the FACTS: Some time in 1975, the spouses Trocino
defendants (herein petitioners), "the fact remains that it is mortgaged two parcels of land to Dr. Clarence Yujuico.
only by evidence aliuende that attempts have been made The mortgage was subsequently foreclosed and the
to prove that the petitioners did reside therein also. The properties sold at public auction. Before the expiry of the
general reference to the place of service as "at Pulang- redemption period, the spouses Trocino sold the property
lupa, Las Piñas, Rizal" fails to specify the very house to Gomez, who in turn, redeemed the same from Dr.
where such service was made. Again, it may be Yujuico. The spouses Trocino, however, refused to convey

REMEDIAL LAW
CIVIL PROCEDURE
ownership of the properties to Gomez. Hence, the Ang Ping filed with the Court of Appeals a petition to
complaint. Thereafter, namatay si Mr. Trocino, pero buhay annul the judgment of the trial court which was the basis of
si misis. Therefore, ung estate ni husband, pinaghatian na the various writs of execution issued against him. He
ng mga heirs kasama si misis. All of the children were alleged that the judgment in question was rendered
served summons through their mother. without due process of law as he was not given his day in
court. Petitioner argued that since there was no valid
ISSUE: WON the service upon the mother and father service of summons upon him and he never appeared
constitutes valid substituted service upon the heirs. before the court by himself or by counsel, the trial court
never acquired jurisdiction over his person, thus, the
HELD: NO. If efforts to find defendant personally makes
judgment cannot be enforced against him.
prompt service impossible, substituted service may be
effected by leaving copies of the summons at the
The Court of Appeals dismissed the petition after finding
defendant's dwelling house or residence with some person
that petitioner Ang Ping was properly placed under the
of suitable age and discretion then residing therein, or by
jurisdiction of the trial court which rendered the assailed
leaving the copies at the defendant's office or regular
judgment. First, the appellate court said, the petitioner was
place of business with some competent person in charge
duly represented by counsel who, aside from filing a
thereof. In substituted service, it is mandated that the fact
responsive pleading, had religiously appeared for him and
of impossibility of personal service should be explained in
his co-defendant before the lower court and petitioners
the proof of service. In the present case, the process
claim that said counsel was not duly authorized by him
server served the summons and copies of the complaint
was never satisfactorily substantiated. Second,
on respondents Jacob, Jesus, Jr., Adolfo, Mariano,
respondent Court noted that there was a valid service of
Consolacion, Alice and Racheal, through their mother,
summons on petitioner Ang Ping because the copy of the
Caridad Trocino. The return did not contain any particulars
summons addressed to him was signed by a certain Jonas
as to the impossibility of personal service on Mariano
Umali.
Trocino within a reasonable time. Such improper service
renders the same ineffective.
ISSUE: WON the decision of the trial court should be
Moreover, inasmuch as the sheriffs return failed to annulled for lack of jurisdiction over the person of the
state the facts and circumstances showing the defendants
impossibility of personal service of summons upon
respondents within a reasonable time, petitioners HELD: YES, the decisions shall be annulled. It should be
should have sought the issuance of an alias emphasized that the service of summons is not only
summons. The fact that Atty. Expedito Bugarin required to give the court jurisdiction over the person of
represented all the respondents without any exception the defendant, but also to afford the latter an opportunity
does not transform the ineffective service of to be heard on the claim made against him. Moreover, as
summons into a valid one. It does not constitute a likewise pointed out by the petitioner, the
valid waiver or even a voluntary submission to the presumption of regularity in the performance of public
trial courts jurisdiction. There was not even the slightest functions finds no application in the case at bar.
proof showing that respondents authorized Atty. Bugarins Surely, there must be, at the very least, compliance with
appearance for and in their behalf. While Caridad Trocino the procedure outlined Sections 4 and 18, Rule 14 of the
may have engaged the services of Atty. Bugarin, it did not Rules.
necessarily mean that Atty. Bugarin also had the authority
to represent the defendant heirs.
RULES IN BPI V. ENGALISTA, infra.
RULES IN ANG PING V. CA, infra.: 1. Absence in the sheriffs return of a statement
1. Failure to comply with proper service of about the impossibility of personal service
summons renders the judgment annulable for does not conclusively prove that the service
lack of jurisdiction over the person of the is invalid.
defendant; 2. Evidence may be presented to ascertain
2. Presumption of regularity cannot stand on its whether prior attempts at personal service
own, the requirements or facts from which the have in fact been done. Resort to substituted
presumption could be inferred should have service may still be valid, if properly justified
been first established: in a hearing to verify the matter. If not, new
Ang Ping v. CA, G.R. No. 126947. July 15, 1999 summonses should be issued and served
FACTS: Ang Ping was sued. The summonses for both properly.
Tingson and Ang Ping were allegedly served on February BPI v. Engalista, G.R. No. 146553. November 27, 2002
15, 1988 at 189 I. Lopez St., Mandaluyong Metro Manila FACTS: The service of summons on the spouses was
and 34 Coolidge St., Greenhills West, San Juan, Metro patently defective as shown by the Certificate of Return
Manila, respectively. In both cases, the person who
received the summons was a certain Jonas Umali.
Ultimately, the trial court rendered judgment holding
Tingson and Ang Ping jointly and severally liable.

REMEDIAL LAW
62
CIVIL PROCEDURE
dated May 16, 2000. The defect is likewise apparent in corresponding duty to see to it that the manner in
63
the service of summons on LTS Philippines Corporation. which the process server had effected the summons
was proper.
In the present case, no justification for resorting to a
substituted service of summons upon the spouses was THE REQUIREMENTS MUST BE COMPLIED WITH.
indicated on the return. On the other hand, the return of NONETHELESS OVERLY STRICT APPLICATION IS
the summons served upon respondent corporation failed FROWNED UPON; SPIRIT, RATHER THAN THE
to indicate the designation or title of the recipient, who LETTER OF THE PROCEDURAL RULES, THAT
should be the corporations president, managing partner, GOVERNS;
general manager, corporate secretary, treasurer, or in-
A DEFENDANT WHO FRUSTRATED THE SERVICE OF
house counsel. The service of summons on a corporation
SUMMONS BY HIS OWN ACTS SHOULD BEAR THE
is exclusive to the persons specified in Section 11, Rule
CONSEQUENCE OF THE FAILURE TO SERVE THE
14 of the 1997 Rules of Civil Procedure. The rule now
SUMMONS UPON HIM
states general manager instead of only manager;
corporate secretary instead of secretary; and treasurer Robinson v. Mirrales, G.R. No. 163584, December 12,
instead of cashier. The phrase agent, or any of its 2006
directors is conspicuously deleted in the new rule.
FACTS: Summons was served on petitioner at her given
Clearly, on both returns, there is no showing that there address. However, per return of service of Sheriff Maximo
were prior but failed attempts at proper personal service, Potente dated March 5, 2001, petitioner no longer resides
attempts that would have justified the servers resort to at such address.
substituted service.
Actual Defect in the Service of Summons

On July 20, 2001, the trial court issued an alias summons
Notwithstanding the RTCs lack of jurisdiction, it to be served at No. 19 Baguio St., Alabang Hills,
has been held that the absence in the sheriffs return Muntinlupa City, petitioners new address. Again, the
of a statement about the impossibility of personal summons could not be served on petitioner. Sheriff
service does not conclusively prove that the service is Potente explained that: ―The Security Guard assigned at
invalid. Proof of prior attempts at personal service the gate of Alabang Hills refused to let me go inside the
may be submitted by the plaintiff during the hearing of subdivision so that I could effect the service of the
any incident assailing the validity of the substituted summons to the defendant in this case. The security guard
service. alleged that the defendant had given them instructions not
to let anybody proceed to her house if she is not around. I
Even if the defect is apparent on the face of the
explained to the Security Guard that I am a sheriff serving
returns, evidence that would prove proper compliance with
the summons to the defendant, and if the defendant is not
the Rules on substituted service may be presented. In the
around, summons can be received by any person of
present case, no hearing was conducted to determine
suitable age and discretion living in the same house.
whether the summonses had actually and correctly been
Despite of all the explanation, the security guard by the
served. The trial court merely relied on the return that
name of A.H. Geroche still refused to let me go inside the
declared that they had indeed been duly served.
subdivision and serve the summons to the defendant. The
Duty of Petitioner same thing happened when I attempted to serve the
summons previously. Therefore, the summons was served
in the Service of Summonses by leaving a copy thereof together with the copy of the
complaint to the security guard by the name of A.H.
Respondents cite BAC Manufacturing & Sales
[24] Geroche, who refused to affix his signature on the original
Corporation v. Court of Appeals, which held that the
copy thereof, so he will be the one to give the same to the
plaintiff carried the burden of seeing to it that the
defendant.‖
process server had immediately caused its service to
the defendant. In that case, however, we made no
pronouncement on whether the plaintiff had the
Petitioner contends that the service of summons upon the
subdivision security guard is not in compliance with
62
“THIS IS TO CERTIFY that on the 15th day of May 2000, a copy of Section 7, Rule 14 since he is not related to her or staying
Summons together with the complaint and its annexes attached at her residence. Moreover, he is not duly authorized to
thereto in the above-entitled case were served to Sps. Willie & Julie L. receive summons for the residents of the village. Hence,
Evangelista at #6 Yellowstone Street, White Plains, Quezon City thru the substituted service of summons is not valid and that
Ms. Carmen Paanto, a person of suitable age and [discretion], living the trial court never acquired jurisdiction over her person.
therein and who acknowledged receipt thereof.”
63
The return merely stated “ THIS IS TO CERTIFY that on the same date
the undersigned cause[d] the service of Summons together with the
complaint and its annexes attached thereto in the above-entitled case ISSUE: whether substituted service of summons upon
to LTS Philippines Corporation at Orcell II Bldg., 1611 Quezon City thru
petitioner has been validly effected.
Ms. Julie Cabrera, but she refused to sign.”

REMEDIAL LAW
CIVIL PROCEDURE
HELD: YES. We have ruled that the statutory SITUATION: When persons associated in an entity
requirements of substituted service must be followed without juridical personality are sued under the name by
strictly, faithfully, and fully complied with. Any which they are generally or commonly known
substituted service other than that authorized by the
HOW SERVICE OF SUMMONS EFFECTED, TO WHOM:
Rules is considered ineffective. However, we frown
service may be effected upon all the defendants by:
upon an overly strict application of the Rules. It is the
spirit, rather than the letter of the procedural rules, i. serving upon any one of them, or
that governs. In his Return, Sheriff Potente declared that ii. upon the person in charge of the office or place
he was refused entry by the security guard in Alabang of business maintained in such name.
Hills twice. The latter informed him that petitioner prohibits - so kahit sa isang tao lang, service na sakanila
him from allowing anybody to proceed to her residence lahat un
whenever she is out. Obviously, it was impossible for XPN: But such service shall not bind individually any
the sheriff to effect personal or substituted service of person whose connection with the entity has, upon due
64
summons upon petitioner. We note that she failed to notice, been severed before the action was brought. (9a)
controvert the sheriffs declaration. Nor did she deny
having received the summons through the security guard. Section 9. Service upon prisoners. — When the
Considering her strict instruction to the security defendant is a prisoner confined in a jail or institution,
guard, she must bear its consequences. Thus, we service shall be effected upon him by the officer having
agree with the trial court that summons has been properly the management of such jail or institution who is deemed
served upon petitioner and that it has acquired jurisdiction deputized as a special sheriff for said purpose. (12a)
over her.
-warden---siya and sheriff, no need for appointment bec.
deemed special sheriff for that purpose, di makakapasok
SPECIAL SITUATIONS: WHEN DEFENDANT IS: sheriff dun baka patayin siya dun.
1. Entity without juridical entity
2. Prisoner
3. Minor and incompetent Section 10. Service upon minors and
4. Domestic private juridical entity incompetents. — When the defendant is a minor, insane
Section 8. Service upon entity without juridical or otherwise an incompetent, service shall be made upon
personality. — When persons associated in an entity 65
him personally AND on his legal guardian if he has one,
without juridical personality are sued under the name by or if none his guardian ad litem whose appointment shall
which they are generally or commonly known, service may be applied for by the plaintiff. In the case of a minor,
be effected upon all the defendants by serving upon any service may also be made on his father or mother. (l0a,
one of them, or upon the person in charge of the office or 11a)
place of business maintained in such name. But such -Pag minor, insane, or incompetent- personally.
service shall not bind individually any person whose Kahit buang, kahit baby, personally parin. Yan
connection with the entity has, upon due notice, been ang rule.
severed before the action was brought. (9a) -―AND‖- pati sa legal guardian. In case of minor,
CORRELATE TO: Sec. 15, Rule 3 sa father or mother.
- if walang legal guardian, must seek
Section 15. Entity without juridical
appoitnment of guardian ad litem. Pag sa father
personality as defendant. — When two or more
or mother, di na kailangan ng appointment as
persons not organized as an entity with juridical
personality enter into a transaction, they may be guardian ad litem, automatic na.
sued under the name by which they are generally -if minor already an orphan, and walang legal
or commonly known. guardian. Seek for an appointment of guardian
ad litem.
- Service of alias summons upon guardian ad
litem is service upon defendants.
In the answer of such defendant, the name and
IMMACULATA vs NAVARRO
addresses of the persons composing said entity
must all be revealed. (15a)
SUMMONS TO DOMESTIC PRIVATE JURIDICAL
PURPOSE: This is for the convenience of the plaintiff, the ENTITY; LIST IS EXCLUSIVE
public.
- You may sue such entity under a common name.

e.g. ―warner bros‖; ―luisa and sons‖ 64
Escolin: Di ko maintindihan ung practical application neto, what is the
- they may be sued under the name by which they proper due notice.
65
are generally or commonly known. Escolin: ito pa ung isang di ko maintindihan “personally:”

REMEDIAL LAW
CIVIL PROCEDURE
Section 11. Service upon domestic private 5, 1998 at their new office Villa Gonzalo, Nazareth,
juridical entity. — When the defendant is a corporation, Cagayan de Oro City, and evidenced by the signature on
partnership or association organized under the laws of the the face of the original copy of the summons.
Philippines with a juridical personality, service may be ISSUE: Was the service upon the branch manager in
made on the president, managing partner, general Cagayan was a proper service upon a partnership with
manager, corporate secretary, treasurer, or in-house principal office in Davao.
counsel. (13a) HELD: NO. The designation of persons or officers who
TO WHOM: Exclusive list (6 persons are authorized to accept summons for a domestic
1. President (Corporation) corporation or partnership is now limited and more
2. Managing Partner (sa partnership) clearly specified in Section 11, Rule 14 of the 1997
3. General Manager (whether partnership or Rules of Civil Procedure. The rule now states general
corporation) manager instead of only manager; corporate secretary
- NOTE: NOT BRANCH manager instead of secretary; and treasurer instead of cashier. The
4. Corporate Secretary phrase agent, or any of its directors is conspicuously
- NOTE: Hindi ung assistant, corporate deleted in the new rule. A strict compliance with the
secretary dapat. mode of service is necessary to confer jurisdiction of
5. Treasurer the court over a corporation. The officer upon whom
6. In-house counsel service is made must be one who is named in the
- Hindi external counsel. statute; otherwise the service is insufficient.
Accordingly, we rule that the service of summons upon the
Basic is a rule that a strict compliance with the mode of branch manager of petitioner at its branch office at
service is necessary to confer jurisdiction of the court over Cagayan de Oro, instead of upon the general manager at
a corporation. its principal office at Davao City is improper.
Consequently, the trial court did not acquire jurisdiction
- Service must be made to the one named in
over the person of the petitioner.
the statute, otherwise, service is
PURPOSE: The purpose is to render it reasonably certain
INSUFFICIENT.
that the corporation will receive prompt and proper notice
PURPOSE: to render it reasonably certain that the in an action against it or to insure that the summons be
corporation will receipt prompt and proper notice in an served on a representative so integrated with the
action against it, and to insure that the summons are corporation that such person will know what to do with the
served to those integrated to the corporation, and would legal papers served on him. In other words, to bring home
know what to do on the legal papers served on him. to the corporation notice of the filing of the action. The
liberal construction rule cannot be invoked and utilized as
LIST IS EXCLUSIVE- DOMESTIC PRIVATE JURIDICAL a substitute for the plain legal requirements as to the
ENTITY; BRING HOME DOCTRINE IS NOW manner in which summons should be served on a
ABANDONED; THE RULE MUST BE STRICTLY domestic corporation.
OBSERVED. SERVICE MUST BE MADE TO ONE
NAMED IN THE STATUTE BRINGIN HOME DOCTRINE; THIS HAS BEEN
Illustrative case: ABANDONED ALREADY, no longer applicable.
Villarosa v. Benito, G.R. No. 136426. August 6, 1999
GOLDEN COUNTRY vs SANVAR
FACTS: private respondent Benito, as plaintiff, filed a
Complaint for Breach of Contract and Damages against - RULE WHEN EFFECTED THROUGH A CLERK-
petitioner Villorasa, as defendant, before the RTC of TYPIST.---substantial compliance
Makati allegedly for failure of the latter to comply with its - Actual receipt of summons by clerk-typist on behalf of
contractual obligation in that, other than a few unfinished officer of corporation holding office at that address is
low cost houses, there were no substantial developments substantial compliance with rules. The court a quo
therein. Petitioner E.B. Villarosa & Partner Co., Ltd. is a thereupon concluded:
limited partnership with principal office address at Davao ". . . inasmuch as the spirit and purpose of the rule is 'to
City and with branch offices at Paranaque, Metro Manila bring home to the corporation notice of the filing of
and Cagayan de Oro City. the action' . . . and it appearing that said defendant
Summons, together with the complaint, were served upon had actually received the summons and a copy of the
the defendant, through its Branch Manager Engr. complaint albeit thru its clerk-typist Miss Iluminada E.
Wendell Sabulbero at the stated address at Kolambog, Lagrimas, and in fact has filed this instant motion, the
Lapasan, Cagayan de Oro City but the Sheriffs Return of Court hereby considers the same as substantial
Service stated that the summons was duly served upon compliance with the rules and therefore denies the
defendant E. B. Villarosa & Partner Co., Ltd. thru its aforesaid motion."
Branch Manager Engr. WENDELL SALBULBERO on May - It was not denied that the summons was given by
clerk to the president.

REMEDIAL LAW
CIVIL PROCEDURE
- Although initially there was a defective service, The fact that the original summons was invalidly served is
the same was cured when the summons was of no moment since jurisdiction over BPI was
delivered to the president. subsequently acquired by the service of a new summons.
- Moreover, notwithstanding its receipt of the order of
default on March 6, 1981, petitioner did not even
bother to take any steps to lift said order of default, SEC. 12, PAR. 1: Service upon FOREIGN PRIVATE
but it simply folded its arms for five months until the JURIDICAL ENTITY conducts business in the
decision was handed down on July 15, 1981. Further Philippines: the private foreign juridical entity is the
defending parting.
weakening the position of the petitioner is the
absence of a viable defense against the documented
claims of respondent for unpaid construction materials
purchased by petitioner.  How may summons be served?
- RELIEF FROM ORDER OF DEFAULT; RULE. — As 1) On the RESIDENT AGENT designated for
we have ruled in the case of Philippine Bank of that purpose: fifteen days from service of
Commerce vs. Jose M. Aruego (102 SCRA 530, 537): summons.
2) If no agent, on the government official
"It has been held that to entitle a party to relief from a
designated by law to that effect, or on any of
judgment taken against him through his mistake,
his officers or agents in the Philippines:
inadvertence, surprise or excusable neglect, he must thirty days from receipt of the foreign
show to the court that he has a meritorious defense. juridical entity.
In other words, in order to set aside the order of
default, the defendant must not only show that his
failure to answer was due to fraud, accident,
mistake or excusable negligence but also that he On March 18, 2011, the SC made an amendment adding
66
has a meritorious defense." In the case of (PAR. 2): ―If the foreign private juridical entity is not
67
registered in the Philippines, or has no resident agent ,
Development Insurance Corp. vs. Intermediate
then service may, with leave of court, be effected out of
Appellate Court (143 SCRA 62), this Court also ruled 68
the Philippines through any of the following means:
that a default judgment will not be lifted if defendant
has no valid defense (a) By personal service course to the appropriate court
in the foreign country, with the assistance of the
69
SERVICE TO BRANCH MANAGER, IMPROPER DFA ; or
(b) By publication ONCE in a newspaper of general
BPI v. Sps. Santago, G.R. No. 169116, March 28, 2007 circulation in the country where the defendant may
FACTS: BPI dumaguete branch initated extrajudicial be found and by service of summons and the court
foreclosure. In order to stop it, mortgagor filed an action order by registered mail to the last known address
before RTC Dumagute for injunction to stop such of the defendant; or
foreclosure proccedings + issuance of TRO. Summons (c) Any other recognized electronic means that could
generate proof of service, or
were served in Branch manager of BPI in Dimaguete City.
(d) By such other means that the court wishes to
ISSUE: WON there was proper service 70
direct .‖
HELD: NO, Basic is the rule that a strict compliance
with the mode of service is necessary to confer
jurisdiction of the court over a corporation. The officer
upon whom service is made must be one who is SEC. 13: SERVICE UPON PUBLIC CORPORATIONS:
named in the statute; otherwise, the service is
 The defendant is the Republic of the Philippines: on
insufficient. Applying the aforestated principle in the the Solicitor General.
case at bar, we rule that the service of summons on  Province, city or municipality, and public
BPIs Branch Manager did not bind the corporation for corporation: on its executive head or on such other
the branch manager is not included in the officer/s as the law or the court may direct.
enumeration of the statute of the persons upon whom
service of summons can be validly made in behalf of
the corporation. Such service is therefore void and
66
ineffectual. However, upon the issuance and the proper Relates to a situation where it is not doing business in the Philippines,
service of new summons on 11 March 2003, before the BUT it has transacted business (even once) here.
67
If branch: then you already have an officer there.
Writ of Preliminary Injunction was issued on 20 March 68
Extra-territorial service.
2003, whatever defect attended the service of the original 69
NOT to take the deposition of the witness before that court. If a
summons, was promptly and accordingly cured. similar request is made by a foreign country, the court will take a
Inarguably, before the Order granting the application for deposition here in the Philippines for the purpose of the case in a
foreign country: RECIPROCITY.
Writ of Preliminary Injunction was issued, the RTC already
acquired jurisdiction over the person of BPI by virtue of the PURPOSE: for the service of summons.
new summons validly served on the Corporate Secretary. 70
EXAMPLE: Registered mail, UPS.

REMEDIAL LAW
CIVIL PROCEDURE
SEC. 14: SERVICE UPON DEFENDANT WHOSE  Did the court really acquire jurisdiction of the
IDENTITY OR WHEREABOUTS ARE UNKNOWN: defendant’s person? If property is found,
defendant is designated as unknown owner, or the like, or then it is attached, then service by
whenever his whereabouts are unknown and cannot be publication is made, does that mean that the
ascertained by diligent inquiry: court has acquired jurisdiction over the
person of the defendant?
 Service may, by leave of court, be effected upon  The court acquires jurisdiction over
him by PUBLICATION in a newspaper in a general the res, over the thing that is
circulation, and in such place or in such time the attached.
court may order.  Sec. 14 is process of converting the action
 SITUATION: the defendant is either unknown or from one in personam to one in rem.
you know him, but his whereabouts are unknown.  But technically, the court has not acquired
jurisdiction over the person.
 It has only acquired jurisdiction over
the property.
CITIZENS‘ SURETY V. MELENCIO-HERRERA:  Since you cannot find the defendant,
reiterated in the case of NIETO. look for properties by the defendant
and attach it, then service by
o This is an action to recover sums of money where publication.
the bonding company paid on behalf of another
party.
o A bonding company usually requires a mortgage, ORDINARY SUMMONS SUMMONS BY
and it foreclosed the mortgage. PUBLICATION
o However, the property subject of the mortgage was
insufficient to cover the entire obligation that was The court acquires The court really does not
paid by the surety. jurisdiction over the acquire jurisdiction over the
o There was only partial satisfaction of the entire person. person. The requirement of
obligation. publication is just to satisfy
o That is why the surety is seeking to recover the the requirement of due
deficient and for a deficiency judgment. process.
o Upon motion of the surety, the presiding judge
issued an order allowing summons by publication. o Was the TC correct in dismissing the case?
o Defendant cannot anymore be served with
summons as he has already transferred his
residence, and he cannot be found in his residence
appearing in the contract.
o So the surety thought that summons by publication NIETO: reiterated the ruling in the previous case.
is in order.
o The defendants still failed to appear and answer.
o Surety then filed a Motion to Declare the Defendant
in Default.
o TC: dismissed the case on the ground that it has SANTOS V. PNOC EXPLORATION CO.: fairly recent
not acquired jurisdiction over the person of the case.
defendant notwithstanding service by publication.
o SC: was it correct for the TC to have denied the o Mr .Santos used to be a director of PNOC. One of
motion to declare the defendant in default? YES. the perks of being a director is that he is entitled to
 What kind of action is this? It is an action in a car plan. He bought an SUV. Santos defaulted in
personam, and it requires personal service paying it. PNOC filed an action to recover the
of summons or if it cannot be done, by balance of the purchase price of the car
substituted service. (P698,502.10).
 An action in personam, no service by o When summons was served on Santos, he was not
publication is allowed. anymore residing at the place of his old residence.
 What should have the plaintiff done to o PNOC now caused the publication of the summons
properly apply Sec. 14, which says that which the court allowed.
when the defendant or his whereabouts is  Summons was published in Remate, a
unknown, it cannot be ascertained even by newspaper of general circulation.
diligent inquiry, then summons can be o When Santos failed to answer within the period
served by publication? stated in the summons, the PNOC just filed a
 In order for service by publication may motion to set the case for reception of evidence ex
be effected under Sec. 14, if no parte.
property of the defendant is found,  It was not a Motion to Declare Santos in
can there be proper service of Default.
publication? o TC: granted the motion.
 Sec. 14 allows service by publication o When the case was submitted for decision,
by converting an action in personam (presentation of evidence had finished) Santos filed
to one in rem or quasi in rem. an Omnibus Motion for Reconsideration and to

REMEDIAL LAW
CIVIL PROCEDURE
Admit Answer. in rem.
 Of the order of the court allowing reception of  Thus, it now applies to ANY action.
evidence.
 Ground: because publication alone is not IN THE BAR: Answer it the way the SC erroneously ruled
enough, as there must be an affidavit that a on it.
copy of the summons, complaint and order of
the court was mailed to the last known ESCOLIN’S COMMENT: It lacks the idea of the nature of
address. publication as a mode of service of summons.
 In this case, the Affidavit of Service
was executed by PNOC, not by the o Old rule: when summons is made by publication,
process server (in the case it said the curt does not acquire jurisdiction over the
Clerk of Court). person, but over the res.
 There was also a violation of due  It is only to satisfy the basic requirements of
process as he was not notified of the due process → so you cannot go beyond
order. what was attached, and ask for deficiency
o TC: denied. judgment.
o CA: pending the proceeding, the TC rendered a o CHING V. COURT OF APPEALS: distinction
decision on the basis of the evidence ex parte between in personam, in rem, quasi in rem.
presented to the plaintiff.  Ching was the owner of a real property in
o CA later on: rendered a decision sustaining the Pasay City covered by a TCT, then he later
validity of the two Orders (Sept. 11, 2013 and Feb. on migrated to the US and died there. The
2014). plaintiff now files an action for reconveyance
 Effectively, there was a finding that the of the property in question, but it appears that
defendant was in default, for failing to file a when the action was filed, Ching has long
responsive pleading as fixed, as he could not been dead (for ten years already).
be found and summons by publication was Considering that summons cannot be served
ordered. on him and his residence in Pasay City,
 It was reasonable to expect the defendant plaintiff amended his complaint, not sure that
will not receive of notice or order in his last Ching was still alive or dead. In the
known address, and it was impractical to meantime, there was already a pending
send any notice or order to him. settlement of the estate of Ching, which is an
71
 The order was mailed at his last known action in rem (against the whole world).
address, but it was claimed. Since Mr. Ching failed to answer, there was a
o Under the ruling in CITIZENS‘ SURETY, for an judgment by default, and it became final and
effective summons by publication under Sec. 14, executory. When it was already at the
there can never be summons by publication in execution stage, the administrator of the
actions in personam, unless the same is converted estate of Ching found out that there was such
to a one in rem by locating properties belonging to judgment, and he file a motion with the court
the defendant, attaching it, thereby converting the to declare the judgment null and void for lack
process to in rem. of jurisdiction.
o In this case, this is also an action in personam,  Is the action in personam? YES.
which is an action to secure personal liability of a  While it involves a real property, that
particular person. does not change the fact that it is an
o Was there ever a conversion by securing action in personam.
properties? The only problem here is that the lawyer  It involves ownership of a particular
did not really understand Sec. 14. individual.
 Neither did the SC.  SC: the summons for publication was made
o ISSUE: Sec. 14 applies only to an action in rem, as there is a property involved.
without explaining that it is a process actually of
conversion, not in an action in personam. 71
The purpose of the proceeding is to establish a fact, status, right. All
o SC: that rule might be correct under the old rule, but those must raise their objections, otherwise, you shall forever keep his
no so under the 1997 Rules of Civil Procedure. peace.
 Under the new law, it states ―in any action
where the defendant is designated as an EXAMPLE: land registration case. Once registered in favor of the
unknown owner, etc.‖ applicant, can the true owner still ask for reconveyance? YES.
 Under the old law, ―where the defendant is
designated as an unknown owner, etc.‖ After one year from the decree of registration, the title becomes
 So the Court said: petitioner is WRONG. unassailable, imprescriptible. And because of the principle of
 The in rem-in personam distinction constructive notice. But the law does not confer ownership over the
was significant under the old rule property, so the real owner has the right to recover it within the
because it was silent as to the kind of prescriptive period of TEN YEARS from the time that his ownership has
action (no ―in any action‖). been adversely questioned by the usurper (a possessor in the concept
of an owner).
 So Court limited the same to
the action in rem.
If it is covered by a Title, it will start from the date of registration, as
 The present rules explicitly states ―IN anything that is annotated in the TCT, the whole world is constructively
ANY ACTION‖ → can be in personam, notified. After ten years, the owner’s claim ceases to exist.

REMEDIAL LAW
CIVIL PROCEDURE
 The court acquired jurisdiction over the iii.the property of the defendant
res, as the defendant cannot have has been attached within the
acquired jurisdiction over him. Philippines.
 Is that correct? NO. Sec. 14  The action is actually converted to in rem.
presupposes that the defendant is
ALIVE.
 The action in the first place was in
personam could not have prospered at DIAL CORP. V. SORIANO: Imperial Vegetable
all, as according to the Court, under the Corporation entered into a contract with Dial and other
rules, only natural or juridical person foreign corporations not domiciled nor licensed to do
may be a party to an action. business in the Philippines. The contract is for the supply
 Ching at the time of the filing of the of raw materials to make a soap. The contract was
action was already dead, and he had entered into abroad. Now because Imperial defaulted
no more personality. under the contract, Dial and 15 other foreign corporations
 The process therefore of conversion from in not domiciled nor doing business herein initiated
personam to in rem is predicated by the fact arbitrations proceedings abroad, and were able to obtain
that the defendant is alive → so that you can awards against Imperial. To prevent implementation of the
convert it. arbitral award, Imperial filed an action for injunction and
damages against these foreign corporations. On Motion,
 But you cannot convert something that
the court authorized Imperial to effect service of summons
would not prosper in the first place.
o This rule in SANTOS never really understood the through DHL courier service. Without submitting to the
jurisdiction of the court, the defendants now filed a Motion
real extent and concept of service of summons by
to Dismiss on the ground of improper service of summons.
publication.
o TC: denied the motion.
o Hence, the petition of the defendants-corporations
SEC. 15: EXTRATERRITORIAL SERVICE before the SC on the issue of WON the TC acquired
jurisdiction over the person of the defendants.
 Service may, by leave of court, effect out of the o SC: NO, TC was in error.
Philippines, by: o REASON: under Sec. 15, only in certain instance
(1) Personal service (Sec. 6), or may extraterritorial service be a proper mode,
(2) Publication in a newspaper of general namely where the action affects the status of the
circulation. plaintiff.
 NOTE: dual aspect of publication → in  It is not the case herein.
addition, the summons must be made o Also, not No. 2 (subject matter).
by registered mail to the last known o The complaint in this case does not fall any of the 4
address to COMPLETE service by instances, because these 4 instances are actions in
publication, OR rem.
(3) In any manner the court may deem o The action of injunction with damages is an action in
sufficient. person, hence, extraterritorial service may not be
 PERIOD TO ANSWER: 60 days after notice. effected.
 When is this applicable? Only when the defendant  ACTION IN PERSONAM: an action based on
does not reside and is not found in the Philippines. a person’s liability.
 May a defendant be sued where he is a non-  Brought to recover damages, personal
resident and not found in the Philippines? As property, etc.
a general rule: NO, as the court cannot  ACTION IN REM: an action against the thing
acquire jurisdiction over his person. itself.
 APPLICABLE ONLY IF THE ACTION IS IN
PERSONAM.
 If found, VENUE: where the plaintiff resides OR
where the defendant may be found, at the election
of the plaintiff. BANCO DE BRASIL V. COURT OF APPEALS: same
 APPLICATION: NON-RESIDENT AND NOT ruling as above.
FOUND, as long as the action is in rem.
 As the action: o Action herein is in personam.
a) Affects the personal status of the o The ship was salvaged, and there was no payment
plaintiff or relates to, or of the salvage fee.
b) The subject of which is, property o SC: While the action is in rem, by claiming
within the Philippines: damages, the relief demanded went beyond the res
i. in which the defendant has or and sought a relief totally alien to the action. Any
claims a lien or interest, actual relief granted in rem or quasi in rem actions must be
or contingent, or confined to the res and the court cannot lawfully
ii. in which the relief demanded render a personal judgment against the defendant.
consists, wholly or in part, in Clearly, the publication of summons effected by
excluding the defendant from private respondent was invalid and ineffective for
any interest therein, or the trial court to acquire jurisdiction over the person

REMEDIAL LAW
CIVIL PROCEDURE
of petitioner, since by seeking to recover damages
from petitioner for their alleged commission of an
injury to his person or property cause by petitioner's
being a nuisance defendant, private respondent's
action became in personam. Bearing in mind that in ROMUALDEZ-LICAROS V. LICAROS: Divorced, and
personam nature of the action, personal, or if not there was separation of property. The husband filed a
possible, substituted service of summons on case here. Summons were served through the Philippine
petitioner and not extraterritorial service, is Consulate to reach the wife.
necessary to confer jurisdiction over the person of
petitioner and validly hold it liable to private o SC: in any other mode which the court may deem
respondent for damages. sufficient.
o In action in personam, the court cannot acquire
jurisdiction over the person.
o Extrajudicial service cannot also be allowed, as the
same is only when it affects status of the plaintiff or
the property of the defendant. VALMONTE V. COURT OF APPEALS: the defendants
here, husband and wife, migrated in the US. However, the
husband has a law office here. The sister of the wife filed
an action for partition, and summons were served to the
husband in his office. He accepted the summons insofar
HONGKONG SHANGHAI BANKING CORP.: there were as to him, but he refused to accept that of his wife. The
two defendants there, HSBC and HSBC Trustee. These plaintiff now filed a motion that summons of the wife be
actions arose from the fact that that the plaintiff is a payee served on the husband who is in the Philippines, which the
of a check was refused encashment. Then the issuer of TC granted.
the check wrote a letter to the bank asking them to encash
it. The issuer then died. So plaintiff sued and the basis of o ISSUE: was there proper service of summons? NO,
his cause of action is Art. 19, CC. however, it sued not not considered as the third mode; it must be
only HSBC, which has its branch office in Makati, but also OUTSIDE OF THE PHILIPPINES.
HSBC Trustee, as the latter rejected the check. Summons o REASON: it is NOT extraterritorial.
was served in HSBC and the summons to the HSBC  The two other modes are extra-
Trustee was served to HSBC. territorial/outside the Philippines.
 Therefore, the third mode should likewise be
o ISSUE: did the court acquire jurisdiction over HSBC outside of the Philippines.
Trustee? NO.  Principle of ejustem generis.
 It is separate and distinct from HSBC, and it o In this case, it was served in the Philippines → it is
is not doing business in the Philippines. TERRITORIAL service now.
o OTHER ISSUE: voluntary surrender.
SEC. 16: RESIDENTS TEMPORARILY OUT OF THE

PHILIPPINES: service may, by leave of court be also
CARIAGA V. MALAYA: plaintiff filed an action for effected out of the Philippines.
annulment of extrajudicial partition, and for recovery of
real property, plus damages. All the defendants filed an
Answer with counterclaim, except Jose Cariaga, Jr. and
Marieta Cariaga, who were already residing in the US.  EXAMPLE: If you are on vacation in England, how
Upon plaintiff’s motion, the court granted leave to serve may summons be served on you?
summons by registered mail. The defendants questioned, EXTRATERRITORIAL.
and filed a Motion to Set Aside and declare summons null  ―also‖ → NOT exclusive.
and void. The defendants abroad likewise questioned the  ―Under the preceding section‖:
service by special appearance of the counsel, as they are (1) Personal;
non-resident, not found in the super Philippines. (2) Publication;
(3) Any other means.
o ISSUE: was service by registered proper
extrajudicial service under Sec. 15? YES, because
there are three modes here allowed by Sec. 15:
(1) By personal service: ticket and MANOTOC MONTALBAN V. MAXIMO: Plaintiff filed an action on
doctrine (at least three times). behalf of their son for recovery of damages arising from a
(2) By publication of a newspaper of general vehicular accident. The defendant was a priest. Summons
circulation: copy of the summons and order was made to him in Concepcion, Malabon. When the
shall be sent to the defendants last known sheriff knocked on the door, he was informed that the
address. defendant was in Rome. When he asked when he will
(3) In any other manner which the court may return, the assistant parish, Fr. Bautista, priest that he will
deem sufficient. be returning soon, ―in a week’s time.‖ Later on, Fr.
o SC: by registered mail is in NO. 3: any other Bautista informed the court that the defendant priest will
manner. be coming home after a while. TC declared defendant in
default and rendered judgment in default.

REMEDIAL LAW
CIVIL PROCEDURE
Philippines → ―in such twice, thrice.
o ISSUE: Did the court acquire jurisdiction over the places and for such (3) Any other mode.
priest? Must summons be served under any of the time as the court may  Is facsimile
extra-territorial service? order‖. any other
o SC: WRONG, as summons in an action in  ONCE only. mode that
personam against a resident in the Philippines who (3) Facsimile and other the court
is temporarily absent in the Philippines may validly electronic means that may deem
be affected by SUBSTITUTED SERVICE (Sec. 7). can generate proof of sufficient?
o The fact that the defendant did not receive actual service. BAKA
notice of summons will not affect the validity of (4) By such other means PWEDE.
service. may in its discretion
o The phraseology under Sec. 16 is a recognition of direct (catch-all
the fact that substituted service out of the clause).
Philippines under Sec. 15, is but one of the
modes only for acquisition of jurisdiction by the
court. CARIAGA: by registered mail is an accepted mode (third
 But the normal method of service of mode).
summons upon one temporary absent in the
Philippines is by SUBSTITUTED SERVICE,
because personal service outside of the
country are NOT ordinary means of  ROMUALDEZ V. LICAROS: through consulate
summons. (other modes).
 NOTE: ―may also be effected‖ → pwede din.
o That is a recognition of the fact that the
SEC. 17: LEAVE OF COURT: shall be made by motion in
extraterritorial service under Sec. 15 is NOT
exclusive. writing, supported by affidavit of the plaintiff or some
 In fact, the ordinary mode of service is by person on his behalf, setting forth the grounds for the
personal service, and if he cannot be served application.
promptly or within a reasonable time, by
substituted service, as was done in this case.
 When is it necessary? Sec. 12, Par. 2, Secs. 14,
15, 16.
IMPORTANT: PAR. 2, SEC. 12: SERVICE UPON  Requirements:
(1) Sec. 12: the foreign private juridical entity
FOREIGN PRIVATE JURIDICAL ENTITY, allowing
has transacted in the Philippines
EXTRATERRITORIAL SERVICE. (2) Sec. 14: affidavit that defendants are
unknown, etc.
 May, by leave of court, be effected outside the
Philippines: (3) Sec. 15: affidavit that non-resident of the
(1) Personal service, Philippines, and affects the plaintiff.
(2) By publication, (4) Sec. 16: affidavit that he is a resident but
temporarily out of the Philippines.
(3) By facsimile,
(4) Such other means.
SEC. 18: PROOF OF SERVICE: why is it necessary for
proof of service? When you want to declare a party in
SEC. 12 SEC. 15 default with notice to the other party and proof thereof.
Only foreign juridical entity. Allows any kind of

defendants, whether  How do you prove that the period within which to
natural or juridical entity. respond has expired? By proof of service.
Need NOT be in rem or The extraterritorial service  RETURN: proof of service made in writing by the
quasi in rem: PAR. 1: which may be allowed when the server.
has transacted business in action is in rem or quasi in  Must be prepared by the sheriff or who
the Philippines → even in rem. served AND furnish copy to counsel of the
personam. plaintiff in FIVE DAYS, if there is any defect
- If NOT transacted in in the service of summons.
the Philippines, apply  If there is defect, there arises no
this Section. presumption of regularity of official functions.
MODES: MODES:  By virtue of their office, they need not be
sworn / under oath.
(1) Personal service (1) Personal service;  WHAT: shall set for the manner, place, ad date of
coursed through the (2) Publication: may be service → the efforts made by the sheriff.
DFA; in the Philippines.  IF OTHER THAN THE SHERIFF/DEPUTY/OFFICE
(2) Publication: must be  The court OF THE COURT: proof of service must be UNDER
effected out of the can say OATH.

REMEDIAL LAW
CIVIL PROCEDURE
for a Fifteen Day Extension.
o TC: granted.
SEC. 19: If by PUBLICATION: o Atty. Asked another Ten Days to Answer.
o TC: granted.
(1) printer, his foreman or principal clerk, or of the o However, no answer was filed, and the defendants
editor, business or advertising manager, to which were declared in default.
affidavit a copy of the publication shall be attached o TC: eventually, a judgment of default was rendered.
and o When the order of execution is executed two years
(2) by an affidavit showing the deposit of a copy of the later, one of the defendants filed a motion to hold
summons and order for publication in the post execution of abeyance of execution, for
office, postage prepaid, directed to the defendant humanitarian reasons to look for another place
by registered mail to his last known address. where their families can reside.
o TC: granted the motion.
o Again through the same attorney, they (Lazaro and
NOTE: to complete, the summons and all the attachments
in behalf of his co-defendants) filed an MR against
and order of the court allowing summons by publication be the default counsel on the ground that they were
sent by registered mail to the last known address. never furnished of the judgment.
 Verified by Romeo Lazaro, one of the
defendants and representing the other
SEC. 20: VOLUNTARY APPEARANCE: another way of defendants, stating that they have caused
the filing of the motion, etc.
the court to acquire jurisdiction over the defendant.
o Through new counsel, defendants filed an Omnibus
Motion which included a Motion to Lift the Order of
Default, a second MR, and to Quash the Writ of
 Same rule as in criminal cases. Execution, alleging for the first time, that their failure
 It is EQUIVALENT to summons. to answer was due to lack of notice.
 Inclusion in the MTD of other grounds aside from o TC: denied the motion.
jurisdiction over the person of defendant shall NOT o CA: in resolving the petition, the appellate court
be deemed as voluntary appearance: upheld defendant’s contention, and that the
decision was null and void to all of the defendants
except Lazaro.
 For the others, the proper procedure was not
LA NAVAL DRUG V. COURT OF APPEALS: complied.
 The efforts were not made.
o The rule now, if there is improper service of o ISSUE: WON there was proper service of summons
summons, in the OLD RULES, you can only upon the other defendants.
question that in a MTD.  The substituted service to Lazaro was
 Also in the MTD, that must be the sole INEFFECTIVE for failure for the sheriff to
ground. specify what prior efforts, if any, were exerted
 To appear by ―special appearance‖ for the to serve summons.
sole purpose of questioning the jurisdiction of  Such specification in the return is essential
the court over the person the defendant. before substituted service may be resulted
 If other grounds are alleged: deemed waived to.
lack of jurisdiction over the person as he is o OTHER ISSUE: was there voluntary appearance
seeking affirmative relief. through their counsel and their co-defendant.
o HOWEVER, in this case, such rule was change.  YES, there was, however, voluntary
o NOW, the plaintiff may assert as many causes of appearance by the defendant.
action either in affirmative or otherwise, and he may  They appeared in a number of times without
do so even if they are inconsistent with each other. objections of the supposed improper service.
 Same rule applicable as when a defendant  First with their counsel who filed successive
raises his defenses. motions for extension to filed answer.
 Also applied in EB VILLAROSA, HSBC.  They also appeared through their co-
defendant for a motion to extension to vacate
the premises.
 And through their counsel again by filing an
MR.
BUSUEGO V. COURT OF APPEALS: plaintiff here filed o By anyone of these facts, the defendants waived
action to recover a parcel of land, and the apart house their initial lack of jurisdiction over their persons.
thereon against (1) Lopez, (2) Lazaros. Summons on the
four defendants were served upon them all through
defendant Lazaro at the address in the complaint. When
the sheriff arrived there, only Lazaro was there, and since
the other three are his neighbors, HONGKONG SHANGHAI BANK and HSBC TRUSTEE
V. CATALAN: when the action was filed, both entities,
o NOTE: substituted service. HSBC, and the Trustee, questioned the jurisdiction over
o Later, defendants, from their counsel, filed a Motion the court. TC denied. Both also filed answer, but the

REMEDIAL LAW
CIVIL PROCEDURE
answer involved was an Answer Ad Cautelam, just so that Service upon a Service shall be effected upon the
they cannot be declared in default, but they are still prisoner prisoner by the officer having the
questioning the ruling of the court on whether summons management of such jail or institution
were properly issued. However, HSBC already filed a
Motion for Extension, and also for HSBC Trustee.
Service upon a Service shall be made upon (a) him
o ISSUE: was there voluntary appearance. minor and an personally and on (b)his legal
o SC: Insofar as the Bank is concerned, where incompetent guardian, if he has one, or if none,
summons of served, by the filing of the motion for guardian ad litem;
extension, and later on an Answer, they have As to minor: may be made to father or
deemed to have submitted themselves to the mother
jurisdiction of the court.
o HOWEVER, for HSBC Trustee, service of summons Service upon a Service may be made upon the ff.
trough HSBC was not proper substituted service.
private persons: (1) president (2) managing
 They are two distinct juridical entities.
 HSBC Trustee is not doing business in the domestic partner (3) general manager (4)
Philippines → not residing and not found in juridical entity corporate secretary (5) treasurer (6) in-
the Philippines. (corporation, house counsel
 The action herein is personal action (violation partnership or NOTE: enumeration is exclusive and
of Art. 19, CC). association with cannot be served upon any other
o It must be noted that HSBC filed initially a MTD and juridical person (EB Villarosa vs Benito)
Motion for Extension of Time, and has invoked the
personality) RATIO: Service upon an agent no
RTC’s jurisdiction over it.
 The filing of motions seeking affirmative relief longer provided under the present
such as to admit answer, for additional time, rules unlike before;
to lift the order of default, motion for
reconsideration are considered voluntary Service upon a Service may be made upon its
submission to the jurisdiction of the court. foreign private (a)resident agent or if there‟s no agent
 Consequently, express reservation in the juridical entity (b) on the government official
Answer that it filed the same as a mere
(which has designated by law to that effect (c) any
precaution is of no moment, having earlier
invoked the jurisdiction of the RTC in its transacted of the officers or agents of said foreign
motion for extension of time, is hereby business in the entity within the Philippines;
estopped of asserting otherwise. Philippines) If foreign corporation is not
o In contrast, the filing by the HSBC Trustee cannot registered in the PH or has no
be considered as voluntary appearance. resident agent: service may be
 It is conditional appearance, entered effected out of the PH, with leave of
precisely to question the regularity of service
court by any of the ff. means:
of summons.
 Cannot be said to have submitted himself to a. by personal service coursed
the jurisdiction of the court. through appropriate court in the
 HSBC Trustee has been consistent in all its foreign country w/ the assistance
pleadings in assailing the service of of DFA;
summons, thus, HSBC Trustee cannot be b. by publication of newspaper of
declared in estoppel when it filed an Answer general circulation in the country
Ad Cautelam.
 Such answer did not render the petition in the where the defendant may be
CA moot and academic. found and by serving a copy of the
summons and the court order by
registered mail at the last known
SUMMARY: address of the defendant;
HOW c. by facsimile or any recognized
electronic means that could
Service upon Service may be effected upon all the generate proof of service;
an entity defendants by serving summons upon d. by such other means as the court
72
without (a) any of them or (b) upon the may in its discretion direct;
juridical person in charge of the office or of the
personality place of business maintained in such Service upon Service may be effected on the
name; (Sec 8 of Rule 14) the Republic of Solicitor General
the Philippines
Service upon Where defendant is a province, city or
public municipality, service may be fefcted on
72
This service, shall not however bind any person whose connection corporations its (a) executive head or (b) on such
with the entity, upon due notice, had been severed before the action
other officer or officers as the law or
was brought;

REMEDIAL LAW
CIVIL PROCEDURE
the court may direct Section 4. Hearing of motion. — Except for
motions which the court may act upon without prejudicing
Service upon Must be served to the Solicitor General the rights of the adverse party, every written motion shall
an (RATIO: when an uincorproated be set for hearing by the applicant.
unincorporated government agency possesses no
government juridical personality of its own, the suit
agency is against the agency’s principal, i.e the Every written motion required to be heard and the notice
State) of the hearing thereof shall be served in such a manner as
to ensure its receipt by the other party at least three (3)
days before the date of hearing, unless the court for good
cause sets the hearing on shorter notice. (4a)
RULE 15
MOTIONS
Section 5. Notice of hearing. — The notice of
PLEADING V. MOTION: hearing shall be addressed to all parties concerned, and
shall specify the time and date of the hearing which must
PLEADING MOTION not be later than ten (10) days after the filing of the motion.
(5a)
Written statement of An application for relief other
ultimate facts than by a pleading.
constituting a party’s Section 6. Proof of service necessary. — No
cause of action. written motion set for hearing shall be acted upon by the
ASSERTIVE Can you also ask for the
court without proof of service thereof. (6a)
PLEADING: complaint, dismissal of the complaint? Or
third-party complaint, to defeat a claim? YES, MTD, REQUIREMENTS FOR A VALID MOTION:
complaint-in- but it is not a pleading.
intervention. (1) Must be IN WRITING (SEC.2): EXCEPT those
RESPONSIVE - Only include made in open court or in the course of a hearing or
PLEADING: answer AFFIRMATIVE defenses, trial.
(negative and as only new matters can  In writing in order to give your opponent to
affirmative defense) be raised therein. read your motion.
73
and reply .  But if it is in open court, the opponent’s
Can also be NOT necessarily counsel is there already.
resisting the claim of the (2) The relief sought to be obtained and the grounds
plaintiff, as when you file a upon which it is based (SEC. 3):
Motion for  Example: when you file a MTDFID →
Postponement/Extension of ground: failure to Answer; relief: to declare
Time. defendant in default.
(3) If required by these Rules or necessary to prove
facts alleged therein, shall be accompanied by
Section 1. Motion defined. — A motion is an supporting affidavits and other papers.
application for relief other than by a pleading. (1a)  Example: return, etc.
SEC. 4: HEARING OF MOTION: only required if the

Section 2. Motions must be in writings. — All motion is LITIGIOUS IN NATURE.
motions shall be in writing except those made in open
court or in the course of a hearing or trial. (2a)
 The court may act upon without prejudicing the

rights of the adverse party.
Section 3. Contents. — A motion shall state the  Motion for Early Resolution.
relief sought to be obtained and the grounds upon which it  NEED NOT TO HAVE NOTICE AND HEARING:
is based, and if required by these Rules or necessary to when it will not prejudice a right.
prove facts alleged therein, shall be accompanied by  Motion to File an Extension.
supporting affidavits and other papers. (3a)  GENERAL RULE: All motions must be set for
hearing.
 By the applicant.
 Shall be served in such manner as to ensure
its receipt by the other party at least three (3)
days before the date of hearing.
73
NOT mandatory, except when the answer raises an actionable
document, in which case it is necessary to file a reply to raise issue as to
the due execution and authenticity of the actionable document.

REMEDIAL LAW
CIVIL PROCEDURE
SEC. 5: NOTICE OF HEARING: must be received by the - when notice of hearing not necessary (in a non-
other party at least three (3) days before the date of the litgous motion)
hearing. - YAP vs CA
- Failure to comply with reuirements re formal
notice of hearing subject to limitation: that it
 THREE-DAY NOTICE RULE: to afford the adverse should be ruled in the merits rather than
party to get your motion. technicalities AZAJAR vs CA
 To file a Comment or Opposition.
 CONTENTS: will be addressed to all parties
concerned, and shall specify the time and date of
the hearing, which shall not be later than 10 days MOYA V. BARTON: the three-day notice for a motion is
from the filing of the motion. not necessary when the extension of time applied for may
be shorter than the time required for it to be set for hearing
and acted upon by the court.
SEC. 6: No written motion set for hearing shall be acted
upon by the court without proof of service thereof. o In such case, the motion may be heard ex parte.
o Here, he filed for a motion for extension to file brief.
 REMEMBER: Service of pleadings and other He was asking for a one-day extension.
papers (MOTIONS, among others). o SC: if he will file for a motion, it will be three days. If
 PROOF OF SERVICE REQUIRED: you set the motion for hearing, the time applied for
(1) PERSONAL SERVICE: is shorter than the time required to have the motion
(2) BY REGISTERED MAIL: set for hearing.
 If you have no proof of service, then it will not be
set for hearing.
 MERE SCRAP OF PAPER IF:
(1) NO NOTICE OF HEARING (time and place):
(2) NO PROOF OF SERVICE: TAN V. DIMAYUGA: Without proof of service, a motion is
 What if the court issued an order requiring the other nothing but a scrap of paper which the clerk of court
party to comment on the motion with those defects? should not receive for filing.
In this case, the other party is DULY INFORMED.
 The court gives the adverse party the
opportunity to contest.
 What for? FOR DUE PROCESS.
 It must be addressed to the counsel of the adverse YAP V. COURT OF APPEALS: The Court of First
party: ―Greetings! Please be informed that the Instance rendered judgment against petitioner in a civil
foregoing motion shall be submitted for the suit for damages. Within the period prescribed by law, he
consideration of the Honorable Court at 8:30 in the filed a Notice of Appeal, a Cash Appeal Bond, and a
morning, on __________.‖ Motion for Extension of twenty days from March 13, 1978
 Where the motion is non-litigious → No need for (until April 2,1978) within which to file his Record on
that; it will not be a scrap of paper when through a Appeal. The Motion was not acted upon by the Trial Court.
defective motion. On March 30, 1978, within the extended period prayed for,
 Requisites for a valid motion: petitioner submitted his Record on Appeal, but the Trial
a) Must be in writing, EXCEPT in open court Court disapproved the same for having been filed out of
with the adverse party time, petitioner's motion for extension of time to file it not
b) Must state the ground for relief having been acted upon for lack of notice of hearing. The
c) Must be accompanied with supporting Court of Appeals, on a Petition for "Certiorari and
papers if necessary, ONLY Mandamus," ruled that the Trial Court committed no grave
d) Notice of the motion must be given to the abuse of discretion in disapproving petitioner's Record on
parties concerned for the hearing (three-day Appeal because it was filed out of time. Hence, this
notice) Petition for Review.
e) The notice must be directed to all parties
concerned, not the Clerk of Court NOTE: The Supreme Court held that the Trial Court has
f) Must state the time and place of the hearing the power to act on the ex-parte Motion for extension of
g) Proof of service of notice thereof, except time to file the Record on Appeal since the said Motion did
when the court is satisfied that the rights of not appear to be a contentious Motion and may be acted
the adverse party are not affected upon even without proof of service on adverse party;
(1) Personal service: signature consequently, the Petition should be granted because
(2) Registered mail: registry receipt, dismissal of appeals on a purely technical ground is
affidavit of service, return card. frowned upon as the policy of the Court is to encourage
 Effect of non-compliance with the three-day notice the hearing of appeals on the merit.
rule: the court may refuse to take action for failure
to comply with such requirement.
 But if on hearing day, you are all there, the
court will just issue an order.
NOTE: AZAJAR V. COURT OF APPEALS: Azajar instituted a

REMEDIAL LAW
CIVIL PROCEDURE
complaint against the defendant for damages arising from (1) A motion that does not contain a notice of
failure of the defendant to deliver nails. Defendant filed a hearing is but a mere scrap of paper, and
MTD for lack of cause of action and improper venue. The does not toll the period for appeal.
court denied the MTD because the notice of hearing that (2) Notice here is not the notice required by law:
was addressed to the adverse party merely stated ―that notice here is to the Clerk of Court, and not
the same be submitted to the court upon receipt hereof.‖ It to the parties concerned.
did not state the time and date, and the court held that it (3) RE: appeal.
did not toll the running of the period to answer. Defendant
was declared in default and a judgment was rendered
ordering the defendant to make the deliveries.
o SC: it was wrong for the private respondent to have FILIPINAS FABRICATORS V. MAGSINO: Jan. 21: a
failed to set its motion to dismiss for hearing on a collection suit was filed against petitioner (defendant) and
specified date and time. the surety. Petitioner and surety were duly served with
o The uniform holding of this Court has been that a summons, but not the other surety. March 2: defendant
failure to comply with the requirement is a fatal flaw. requested 10-day extension, however, before the judge
o But there are certain circumstances, including the could not act on the motion, defendant filed a MBOP,
fact that the defendant has a meritorious defense, if alleging insufficiency of the arguments of the complaint.
proved will defeat plaintiff’s, considering also the March 15: granted 10-day extension to answer. Later on,
desirability that cases should be determined on the in the Order of April 6, court required defendant to set
merits after giving all the parties full opportunity to hearing for MBOP, then with notice to adverse parties,
ventilate their causes and defenses, rather than on otherwise, it shall be considered as a scrap of paper.
technicality or procedural imperfections, the ends of Summons was then served to other defendant, and
justice are better served by brushing aside plaintiff filed a MTDDID. April 26: defendants filed
technicality and affording the defendant its day in Manifestation setting hearing of their Motion. June 25,
court. plaintiff filed another MTDDID. Aug. 10: court declared
o HELD: set aside the judgment. defendants in default.
o Correct or incorrect? CORRECT.

o The defendants premised that there was a pending
MBOP, therefore suspending the period to answer
CORPUS V. CORPUS: no notice of the Motion for is CORRECT, BUT this is true only if the motion
Postponement has been sent to the opposing party. complies with requirement of notice of hearing to be
served in the adverse party.
o HELD: Sections 4 and 5, rule 15 of the rules of o The requirements in this case are not followed,
Court expressly provide that a motion shall state the therefore, effectively, there is no suspension of the
time and place of the hearing and shall be served period to file an Answer.
upon all the parties concerned at least three (3) o Effect of filing of MBOP: stays or tolls the running of
days in advance. the period within which to file a responsive pleading.
o And, according to Section 6 of the same Rules no o BUT here, the MBOP did NOT suspend the running
motion shall be acted upon by the court without as it did not comply with the requirements under
proof of such notice, and it has been held that, in Secs. 4 and 5, and it was proper for the court to
such a case, the motion is nothing but a useless have declared them in default.
piece of paper.
o The reason is obvious: unless the movant sets the
time and place of hearing, the court would have no
way of determining whether the adverse party OMNIBUS MOTION RULE
agrees or objects to the motion, and if he objects, to
hear him on his objection, since the Rules do not fix Section 8. Omnibus motion. — Subject to the
any period within which he may file his reply or provisions of section 1 of Rule 9, a motion attacking a
opposition thereto. pleading, order, judgment, or proceeding shall include all
o Counsel for the defendants-appellants merely objections then available, and all objections not so
stated therein: "Copy furnished Atty. Federico R. included shall be deemed waived. (8a)
Vinluan, San Nicolas, Pangasinan" is NOT sufficient
compliance of the requirements required under Sec. GENERAL RULE: A motion attacking a pleading, order,
5. judgment, or proceeding shall include all objections then
available, and all objections not so included shall be
deeme waived.
EXCEPTION: when it appears from the pleadings or the

BANK OF PHILIPPINE ISLANDS V. FAR EAST
evidence on record that the court has:
MOLASSES CORP.: there was no notice of hearing in the
1. no jurisdiction over the subject matter,
MR. To cure it, it used ordinary mail and attached the
2. that there is another action pending between
notice of hearing.
the same parties for the same cause, (litis
pendentia) or
o SC:

REMEDIAL LAW
CIVIL PROCEDURE
3. that the action is barred by a prior judgment (8)
or (Res judicata)
4. by statute of limitations, (Prescription)
NOTE: the court shall dismiss the claim. (even Section 2. Form and
motu proprio) contents. — The motion to
- can be raised for the first time on appeal. quash shall be in writing,
- the court may motu proprio dismiss the case. signed by the accused or
his counsel and shall
COURT MAY MOTU PROPRIO DISMISS THE CASE ON distinctly specify its factual
THE GROUNDS OF LACK OF JURISDICTION OVER and legal grounds. The
SUBJECT MATTER, LITIS PENDENTIA, RES court shall consider no
JUDICATA, PRESCRIPTION ground other than those
GARCIA vs MATHIS, G.R. No. L-48577, September stated in the motion, except
30, 1980 lack of jurisdiction over the
FACTS: Complaint against Co. Mathis (Base offense charged
Commander) Complainant alleged that he was allegedly
illegaly dismissed from the job on 1956 and therefore EXCEPTION: EXCEPTION:
prayed for his reinstatement and backwages. His a) Lack of jurisdiction (a) That the facts charged
complaint was failed on 1977, or 21 years after cause of over subject matter, do not constitute an
action accrued. However, defendant filed special b) litis pendentia, offense;
appearance for motion to dismiss on the gorund of lack of c) res judicata, (b) That the court trying
jurisdicition over his person invoking that this is a suit d) prescription the case has no jurisdiction
against the state(non-suability). This is the only issue over the offense charged;
raised in the motion. However, the judge dismiss on the (g) That the criminal action
ground of prescription. Complainant attacked the order or liability has been
because the dismissal was not based on the allegations extinguished;
raised in the motion to dismiss. (i) That the accused has
HELD: It is true that an action will not be held to have been previously convicted
or acquitted of the offense
prescribed if prescription is not expressly invoked.
charged, or the case
However there are exceptions to this rule and one of
against him was dismissed
them is when the plaintiff's own allegations in his
or otherwise terminated
complaint show clearly (APPARENTLY) that the action without his express
has prescribed. In this case the complaint shows clearly consent.
that the plaintiff's action had prescribed for he alleged that
he was removed on August 23, 1956 (par. 5) but the case
was filed only on November 18, 1977, after a lapse of Sec 9 Motion fo leave A motion for leave to file a
more than 21 years. Prescinding, therefore, the defense of pleading or motion shall be accompanied by the
jurisdiction which is apparently meritorious, the complaint pleading or motion sought to be admitted
was properly dismissed.
- for e.g you file a motion for admission of
amendment of complaint when it is not a matter
OMNIBUS MOTION RULE MOTION TO QUASH (Rule
of right, you already attach your amended
(Rule 15) 117)
pleading/c yu are seeking to be admiiteeed, and
Section 8. Omnibus Section 9. Failure to if it’s granted the responsive pleading must bbe
motion. — Subject to the move to quash or to allege done w/in 10 days from notice of admitting the
provisions of section 1 of any ground therefor. — The amended complaint.
Rule 9, a motion attacking a failure of the accused to
pleading, order, judgment, assert any ground of a RULE 16
or proceeding shall include motion to quash before he
all objections then pleads to the complaint or MOTION TO DISMISS
available, and all objections information, either because
not so included shall be he did not file a motion to
deemed waived. (8a) quash or failed to allege the MOTION TO DISMISS DEMURRER
same in said motion, shall
be deemed a waiver of any NATURE: A motion to
objections based on the dismiss generally partakes
grounds provided for in the nature of demurrer. In
paragraphs (a), (b), (g), and the sense that when you file
(i) of section 3 of this Rule. a motion to dismiss under
rule 16, you are deemed to

REMEDIAL LAW
CIVIL PROCEDURE
hypothetically admit the - It may be filed within the period for an answer.
material allegations of the Namely, within 15 days from service of
complaint summons.
- Once a responsive pleading is filed, the grounds
May be based on facts not Must be based only upon of a motion to dismiss are generally deemed
alleged in the complaint. the facts alleged in the waived unless raised as an affirmative defense in
Precisely because it complaint the answer
actually relates to new
matters/affirmative Q: Supposed you forgot a ground when you filed an
defenses answer, can that be the subject of the amendment of
an answer?
PLEADING MOTION TO DISMISS A: YES, when the amendment is still a matter of right,
it is a matter of right when made once before the
Pleadings are the written A MOTION IS NOT A responsive pleading (reply in this case) is served, or
statements of the PLEADING, IT IS A prior the lapse of the period to answer (i.e. within ten
respective claims and MOTION. It is not a (10) days from service of the answer)-since in such
defenses of the parties responsive pleading, it is case, the issues have not yet been joined.
submitted to the court for not even a pleading.
appropriate judgment Q: Supposed you forgot a ground when you filed a
e.g. Section 2. Pleadings motion to dismiss, can that ground still be
allowed. — considered in the answer or in a subsequent motion
Pleading that asserts a to dismiss??
claim A: NO, violation of omnibus motion rule, deemed
The claims of a party are waived. See case, infra in venue
asserted in a:
i. complaint, AS TO WHO MAY FILE: A motion to dismiss may be filed
ii. counterclaim, by:
iii. cross-claim, 1. The original defendant
iv. third (fourth, etc.)- 2. Third-party defendant
party complaint, or 3. Plaintiff in a counterclaim
v. complaint-in- 4. Co-party in a cross-claim
intervention.
GROUNDS: a motion to dismiss may be made on any of
Responsive pleading the following grounds:
The defenses of a party are 1. Lack of jurisdiction over the person of the defending
alleged in the: party
i. answer to the 2. Lack of jurisdiction over the subject matter of the
pleading asserting a claim;
claim against him. 3. Improper venue;
ii. An answer may be 4. Plaintiff’s lack of legal capacity to sue;
responded to by a reply. 5. Litis pendentia;
(n) 6. Resjudicata
7. Prescription;
74
WHEN TO FILE: Within the time before filing the answer 8. Failure to state cause of action;
to the complaint or pleading asserting a claim. 9. Claim has already been paid, waived, abandoned, or
otherwise extinguished;
10. Unenforceability due to statute of frauds; and
74
Section 1. Grounds. — Within the time for but before filing 11. That a condition precedent for filing the claim has not
the answer to the complaint or pleading asserting a claim, a motion to been complied with.
dismiss may be made on any of the following grounds:
(a) That the court has no jurisdiction over the person of the
defending party;
(b) That the court has no jurisdiction over the subject matter of (g) That the pleading asserting the claim states no cause of
the claim; action;
(c) That venue is improperly laid; (h) That the claim or demand set forth in the plaintiff's pleading
(d) That the plaintiff has no legal capacity to sue; has been paid, waived, abandoned, or otherwise extinguished;
(e) That there is another action pending between the same (i) That the claim on which the action is founded is enforceable
parties for the same cause; under the provisions of the statute of frauds; and
(f) That the cause of action is barred by a prior judgment or by (j) That a condition precedent for filing the claim has not been
the statute of limitations; complied with. (1a)

REMEDIAL LAW
CIVIL PROCEDURE
NECESSITY OF MOTION: Generally, the court cannot -In connection with jurisdiction of the courts
dismiss the case motu proprio, except only when based on
sec. 1 Rule 9 (lack of jurisdiction over subj.matter; litis Q: When may this ground be raised?
pendentia; res judicata; prescription), and sec. 3, rule 17 A: this ground may be raised at any time even
(dismissal due to fault of plaintiff). for the first time in appeal. Even if the judgment
has already become final and executory under
EFFECT OF FILING MOTION TO DISMISS ON THE exceptional circumstances under Rule 47
PERIOD TO RESPOND: It tolls or suspends the running
of the period to respond, and the period starts again upon 4. ―That venue is improperly laid;‖
the receipt of the order denying the motion to dismiss. - the rule on venue
Q: At what stage of the action may a motion to
PERIOD TO PLEAD IF DENIED: The movant may answer dismiss on the ground of improper venue be
within the balance of the period prescribed to answer but filed?
not less than five (5) days in any event. A: It must be filed either in the motion to dismiss
or in the answer.
Section 4. Time to plead. — If the motion
is denied, the movant shall file his answer within FACTS: If you filed a motion to dismiss, later on
you realized that thru inadvertence you failed to
the balance of the period prescribed by Rule 11
alleged improper venue, may an amendment to
to which he was entitled at the time of serving his your answer may still be done if no responsive
motion, but not less than five (5) days in any pleading (reply) has yet been served or before
event, computed from his receipt of the notice of the lapse of 10 days from service of answer?
the denial. If the pleading is ordered to be Q1: Can the answer still be amended as a matter
amended, he shall file his answer within the of right?
period prescribed by Rule 11 counted from A1: Yes, no reply has been served, nor did 10
days lapse from service of answer.
service of the amended pleading, unless the
Q2: Can the defense of improper venue be still
court provides a longer period. (4a) considered?
A2: NO. Violation of omnibus motion rule,
75
EFFECT WHEN MOTION TO DISMISS GRANTED: deemed waived.
GR: Subject to the right of appeal, granting the motion
CASE
to dismiss is without prejudice to the re-filing of the
FACTS: A complaint was filed. A motion to
case
dismiss was filed. Later on, after 5 days or 7
XPNS: PURE (with prejudice) days, he filed an amended motion to dismiss.
Adding another ground which is improper venue
a. Prescription or lack of jurisdiction over person. The RTC
b. Unenforceable due to statute of Frauds; granted the motion to dismiss. It was now being
challenged on the ground that there was already
c. Res Judicata
a waiver of objection for violating omnibus motion
d. Extinction (paid, waived) rule.
ISSUE: WON there was already a waiver
HELD: YES, it has already violated the omnibus
DISCUSSION OF GROUNDS: motion rule. When the first motion was filed an
2. ―That the court has no jurisdiction over the improper venue/lack of jurisdiction over the
person of the defending party;‖ person has already been raised. Although you
can raised it in the alternative, if you do not
Contemplated scenarios: raised it immediately in the original motion to
a. Improper service without voluntary appearance. dismiss and you file an amended motion to
NOTE: if there is a ground of motion to dismiss dismiss, while you can consider it still as a matter
76
because of improper service of summons, that of right, the defenses are deemed waived.
will not preclude the court from issuing alias
summons to rectify defects
GROUNDS NOT RAISED ON THE FIRST MOTION TO
b. Immunity from suit/ Non-suability DISMISS, DEEMED WAIVED
- E.g. of a state
3. ―That the court has no jurisdiction over the ANUNSIASCION V. BOCANEGRA: waiver of improper
subject matter of the claim;‖ service of summons.
75
Section 5. Effect of dismissal. — Subject to the right of
76
appeal, an order granting a motion to dismiss based on paragraphs (f), no responsive pleading in a motion to dismiss. Hindi yan proper sa
(h) and (i) of section 1 hereof shall bar the refiling of the same action or motion to dismiss, walang responsive pleading. Ang finfile sa motion to
claim. (n) dismiss ay opposition. An opposition is not a responsive pleading.

REMEDIAL LAW
CIVIL PROCEDURE
o There was already a voluntary surrender by filing of e.g. when a person sues in a representative
a MTD. capacity under sec. 4 of rule 3. Example of which
o Can the court be divested of jurisdiction, by adding is a trustee in an express trust, guardian of ward,
a new ground in amended MTD? NO, because of executor or administrator of an estate of a
the Omnibus Motion Rule. deceased person.
o TD: committed GAD. * if he is not a trustee/guardian, you may file a
motion to dismiss on the ground of lack of legal
FACTS: Respondents, through their counsel, Atty. Norby
capacity to sue since he does not have the
C. Caparas, Jr., filed a Motion to Dismiss on the ground representation which he claims
that the complaint stated no cause of action. Thereafter,
they filed a supplemental motion on the ground of lack of LACK OF LEGAL CAPACITY TO SUE v. LACK
jurisdiction over the person OF LEGAL PERSONALITY TO SUE
Lack of legal Lack of personality to
EXCERPTS: The filing of the above-mentioned Motion capacity to sue sue
to Dismiss, without invoking the lack of jurisdiction
Disability of the Fact that the plaintiff is
over the person of the respondents, is deemed a
plaintiff to sue. not the real party in
voluntary appearance on the part of the respondents interest
under the aforequoted provision of the Rules. The
same conclusion can be drawn from the filing of the Ground for dismissal is Ground for dismissal is
lack of legal capacity for failure to state a
Supplemental Motion to Dismiss and Reply to the
to sue cause of action
Comment on the Motion to Dismiss dated November 13,
2000 which alleged, as an additional ground for the eg DCM Mktg cs
dismissal of petitioners complaint, the failure of plaintiffs to LE in market stall, pinapaalis na ang may-ari and
pay the required filing fee again but failed to raise the filed an action in court saying that the land is a
alleged lack of jurisdiction of the court over the person of prop of the govt and that he acquired title thru
fraud
the respondents.
-- not real party in interest, di siya dapat
It was only in respondents Second Supplemental makialam, govt di nagreklamo, siya pa
Motion to Dismiss dated November 27, 2000 that 6. ―That there is another action pending between the
respondents for the first time raised the courts lack of same parties for the same cause;‖ (litis pendentia)
jurisdiction over their person as defendants on the ground - One of the grounds for invoking forum shopping.
that summons were allegedly not properly served upon The other form of forum shopping is res judicata
them. The filing of the said Second Supplemental
- The underlying principle of litis pendentia is the
Motion to Dismiss did not divest the court of its theory that a party is not allowed to vex another
jurisdiction over the person of the respondents who more than once regarding the same subject
had earlier voluntarily appeared before the trial court matter and for the same cause of action.This
by filing their motion to dismiss and the supplemental theory is founded on the public policy that the
motion to dismiss. The dismissal of the complaint on the same subject matter should not be the subject of
ground of lack of jurisdiction over the person of the controversy in courts more than once, in order
that possible conflicting judgments may be
respondents after they had voluntarily appeared before the avoided for the sake of the stability of the rights
trial court clearly constitutes grave abuse of discretion and status of persons.
amounting to lack of jurisdiction or in excess of jurisdiction - Litis pendentia means atleast two cases have
on the part of the RTC. been filed
REQUISITES. (answer by citing the requisites)
5. ―That the plaintiff has no legal capacity to sue;‖ i. Identity of parties or the parties atleast
represents the same interest in all the
meaning of no legal capacity to sue: cases
a. When he does not possess the necessary - ―represents the same interest‖-
qualification to appear in court, halimbawa, the parties are the
 e.g. when plaintiff is not in full exercise of civil predecessors-in-interest, it equally
rights: applies to their successors-in-
interest.
i. Minor
Q: When can there be succession?
- If he is a minor, he cannot appear in court.
Accordingly, he must be represented by his A: Succession can either be:
parents or legal guardian. 1. By gratuitous title; or
ii. Incompetent -kung donation, either inter vivos or
b. When the plaintiff does not have the character mortis cause
or representation which he claims.

REMEDIAL LAW
CIVIL PROCEDURE
-kung mga anak na nagaway, same FACTS: The husband sold a 46 hectare land
parties parin yan. Kung which is party of the conjugal partnership. The
napagawayan na ng parents. Di na wife did not consent to the sale. After the death
pwede magasunto mga anak. The of the husband, the surviving spouse and the
parents and the successors children sought for the annulment of the 23
represents the same interest hectares which allegedly forms part of the half of
the wife (first cause of action). Thereafter, the
2. Onerous title
wife and the children filed an amended
-e.g. transfer by sale. complaint with leave of court. They claimed
therein the whole 46 hectares now claiming that
-ung bumili, successor in interest
yan by onerous title there was fraud in the execution of the sale (in
other words, a joinder of causes of action, in the
77
ii. Identity of rights asserted (SAME alternative or otherwise) . That the sale was
CAUSE OF ACTION) and reliefs prayed allegedly an equitable mortgage. The defendant
for are based on the same facts in all filed a motion to deny the admission of the
the actions. amended complaint. The trial court denied the
- Kung two cases, based on the admission of the amended compliant. Since the
same contract. Litis pendentia, both amendment was denied, the children and the
are still pending. wife instituted another separate case alleging
the same cause of action alleged in the
- In connection with splitting of cause amended complaint.(the denied amended
of action, litis pendentia is a complaint is now the subject of the separate
derivative of the prinicpil against action). Subsequently, the defendant filed a
splitting of cause of action. You are motion to dismiss the separate action on the
asserting same rights, obligation, ground of litis pendentia
omissions or acts. ISSUE: WON there is litis pendentia
iii. Judgment in either case, regardless HELD: NO, all the requisites of litis pendentia
which party is successful, would has not been complied with. There was not
amount to res judicata in the other. identity rights and causes of action in this
case. In the first case, the act or omission
In this connection: note: Section 2, Rule involved is the fact that the sale did not have
9.Compulsory counterclaim, or cross-claim, the consent of the wife. In the second case,
not set up barred. — A compulsory the delict was the alleged fraud. Hence, there
78
counterclaim, or a cross-claim, not set up shall be is no identity of rights asserted.
barred. (4a)
- no need to attach certification against forum RELATE TO SPLITTING OF CAUSE OF
shopping ACTION, TEST: Splitting a single cause of action
- not an initiatory pleading, the defendant is is the act of instituting two or more suits on the
obliged to raise the claim in the same action basis of the same cause of action (right,
where the principal case is pending. It is obligation, delict or wrong)
initiated upon the filing of the complaint. -e.g. filing a case for interest, and another for the
The defendant has no choice but to set up principal debt. In this case, there is only one act
the compulsory counterclaim or crossclaim. or omission, viz., the non-payment.
-e.g. Filing of a collection suit bars the
Q: A debtor filed an action to annul a real estate foreclosure of real estate mortgage, otherwise,
mortgage on the ground of fraud. While the would constitute splitting of cause of action.
action was pending, the note became due and Same delict or wrong, viz., non-payment.
the creditor thus filed an action to foreclose the -e.g. all violations of the stipulations of a contract
mortgage. Will the action to foreclose the must be included in one action (e.g. not
mortage would be considered litis pendentia to inaccordance with the specifications provided for
the annulment of the mortgage? window, doors, etc.)
A: NO. Applying the elements of litis pendentia,
rd
the 3 element does not exist. Notwithstanding
the fact that the annulment, if granted, would bar
the continuation of the foreclosure sale, there is SUNTAY vs AGUILUZ- the dispute arose from the
no litis pendentia in this case since in the first contract regarding conditional deed of sale w/ REM;
place, if the annulment has been denied, the Aguiluz sued for specific performance relating to delivery
action to foreclose may still continue. Thus, of title. Suntay then filed foreclosure of mortgage.
judgment in either case would not always amount
to resjudicata. (HSBC bank vs ALDECOA, G.R.
77
No. L-8437, March 23, 1915) The insufficiency of one cause of action does not render the entire
case dismissable as long as one cause of action is sufficient in itself. The
Illustrative case: other rule is that, not withstanding the fact that the causes of action
RAMOS v. EBARLE are inconsistent with each other.
78

REMEDIAL LAW
CIVIL PROCEDURE
HELD: While concededly the first case although cleverly i. the date of filing, with preference
denominated as one for specific performance with generally given to the first action filed
mandatory and prohibitory injunction, is in reality to be retained;
principally one for injunction to prevent the ii. whether the action sought to be
foreclosure of the mortgage and to fix a new period to dismissed was filed merely to
pay the remaining unpaid balance of P40,000.00 which preempt the latter action or to
was to be paid on or before 6 August 1966 without any anticipate its filing and lay the basis for
nd
need for a demand. Upon the other hand, 2 case is a its dismissal; and
suit for specific performance which asks for the iii. whether the action is the appropriate
payment of the balance and the liquidated damages
vehicle for litigating the issues
and foreclosure of the mortgage. The causes of action
between the parties.
and the reliefs sought are entirely different. A decision
in the first will not amount to res judicata against the - Consistent with the third factor,
second case for whether or not defendants. prevail in the Court has ruled that the earlier
the former, petitioner's right to the unpaid balance and case can be dismissed in favor of
the foreclosure of the mortgage would still be the later case if the later case is the
litigable. What should have been done is to more appropriate forum for the
consolidate. ventilation of the issues between
-whether the action is to pre-empt the second action, that the parties.
case should be abated.
4. The other case need not necessarily be
RULES IN RAMOS V. PERALTA, INFRA. AND dismissed. If equitable, both case may be
VILLARICA V. SPS. GERNA, INFRA. consolidated in order that all the issues
raised by the parties in both cases will be
1. The requisites of litis pendentia are: properly resolved, and so that the
(PRC) evidence already presented in the former
i. the identity of parties, or at least such case will no longer have to be presented
as representing the same interests in in the latter.
both actions;
- identity of causes of action does not Illustrative case:
mean absolute identity
ii. the identity of rights asserted and Ramos v. Peralta, G.R. No. L-45107
relief prayed for, the relief being November 11, 1991
founded on the same facts; and FACTS: Ramos was the lessee of the Salgado
- identity of parties does not mean fishpond owned by spouses Ortanez. Through
total identity of parties in both cases the years, the lease was renewed. The last
- What is primordial is that the renewal was for 3 years. During the lease period,
primary litigants in the first case are the property was transferred in the name of
also the primary parties to the Roman. On or about May 1, 1976, petitioner
second action received a letter from Don Pablo R. Roman
- Addition of nominal parties is of no informing him of the latter's acquisition of the
matter fishpond and intention to take possession
iii. the identity of the two cases such that thereof. In his letter-reply, petitioner reminded Mr.
judgment in one, regardless of which Roman of his lease contract over the fishpond
party is successful, would amount to and refused to consent to the intended take over.
res judicata in the other. Notwithstanding petitioner's objection, P. R.
Roman, Inc. took over possession of the
2. The rule on litis pendentia does not fishpond.
require that the later case should yield to Thus, petitioner filed before the RTC Manila for
the earlier case; what is reuired merely is consignation of the sum representing advance
another pending action, not necessarily a rentals on the fishpond to compel roman to
―prior‖ pending action. accept rentals.
Thereafter, roman filed in RTC Bataan an action
3. There is no hard and fast rule in for quieting of title.
determining which actions should be The RTC of Manila dismissed the case on the
abated on the ground of litis pendentia. ground of litis pendentia.
The SC has set the relevant factors that ISSUE1: WON there is litis pendentia
lower courts must consider when they
have to determine which case should be HELD1: Yes. First, there is identity of parties.
dismissed, given the pendency of two Anent the second element. While ostensibly, the
actions. These are: immediate relief sought for in peitioner’s
consignation case is to compel therein
defendants to accept his advance rentals, the
ultimate purpose of such action is to compel the
new owner of the fishpond to recognize his

REMEDIAL LAW
CIVIL PROCEDURE
leasehold rights and right of occupation. In the ISSUE2: Is there litis pendentia
last analysis, therefore, the issue involved in Civil HELD2: YES, there’s litis pendentia. With respect
Case No. 1is the right of possession over the to the first requisite, it is true that in second civil
fishpond intertwined with the validity and
case Valmadrid and Tan were added as plaintiffs,
effectivity of the lease contract. This is the same
issue involved in Civil Case No. 2. That whatever while BPI and the Register of Deeds of
decision may be handed down in Civil Case No. Meycauayan, Bulacan were added as
2 would constitute res judicata in Civil Case No. 1 defendants. However, identity of parties does
is beyond cavil. Should the Bataan court rule that not mean total identity of parties in both
the lease contract is valid and effective against P. cases. It is enough that there is substantial
R. Roman, Inc., the petitioner can compel it to identity of parties. The inclusion of new parties
accept his proffered payment of rentals;
in the second action does not remove the
otherwise, he may not do so.
ISSUE2: WON the second civil case (the one case from the operation of the rule of litis
filed later), it the one which should be dismissed pendentia. What is primordial is that the
and not the first complaint which has been filed. primary litigants in the first case are also
HELD2: No. Finally, the rule on litis pendentia parties to the second action. Besides, it is clear
does not require that the later case should that Valmadrid and Tan, being the previous
yield to the earlier case. What is required owners from whom Villarica bought the subject
merely is that there be another pending
action, not a prior pending action. Considering properties, represent the same interests as the
the broader scope of inquiry involved in Civil latter. On the other hand, the Register of Deeds
Case No. 4102 and the location of the property of Meycauayan, Bulacan was impleaded merely
involved, no error was committed by the lower as a nominal party.
court in deferring to the Bataan court's
jurisdiction. With respect to the second and third requisites,
hornbook is the rule that identity of causes of
Villarica Pawnshop vs Sps, Gernale, G.R. No. action does not mean absolute identity;
163344, March 20, 2009: Sps. Geranle filed otherwise, a party could easily escape the
action for quieting of title against Vilalrica, operation of res judicata by changing the form of
alleging that they bought property covered by 79
the action or the relief sought. Hence, a party
TCT which were among those totally burned cannot, by varying the form of action or adopting
during a conflagration that took place on March 7, a different method of presenting his case, escape
1987. Later, they found that such property was the operation of the principle that one and the
now registered by in the name of Villarica same cause of action shall not be twice litigated
Accordingly, the Gernales prayed that the TCTs between the same parties or their privies. Civil
in the name of Villarica as well as all documents Case No 1 is for quieting of title and damages,
and conveyances relevant thereto be declared while Civil Case No. 2 is for annulment and
null and void since the title of villarica came from cancellation of titles and damages. The two
an illegal source. cases are different only in the form of action,
but an examination of the allegations in both
It appears that such property was mortgaged to cases reveals that the main issue raised,
BPI in 1999. On the other hand, Villarica which is ownership of the land, and the
answered alleging that the title of Sps. Gernale principal relief sought, which is cancellation
was the one which is fake. of the opposing parties' transfer certificates
of title, are substantially the same. The
While the case is pending, Villarica filed a evidence required to substantiate the parties'
separate case for annulment and cancellation of claims is likewise the same.
title against Sps Gernarle over the same property ISSUE3: Which of the two cases, Civil Case No.
alleging substantially the same allegations as 1or Civil Case No. 2, should be dismissed?
special affirmative defense in the first case. But HELD3: None, but Civil Case No. 2 shall be
this time, impleaded Bpi, it being mortgagee. consolidated with Civil Case No. 1. This Court
has held that two cases involving the same
Sps Gernales filed Motion to Dismiss on the parties and affecting closely related subject
gorund of litis pendentia. matters must be ordered consolidated and jointly
ISSUE1: Is BPI an indispensable party in the
second case? 79
The test to determine whether the causes of action are identical is to
HELD1: Yes, since it is a party without whom ascertain whether the same evidence will sustain both actions, or
there can be no final determination of the issues. whether there is an identity in the facts essential to the maintenance of
If not impleaded, the judgement would be the two actions. If the same facts or evidence would sustain both, the
two actions are considered the same, and a judgment in the first case is
considered null and void. a bar to the subsequent action.

REMEDIAL LAW
CIVIL PROCEDURE
tried in the court where the earlier case was filed. On the other hand, there are countervailing
80
This is consistent with Section 1, Rule 31 of the considerations which make dismissal of Civil
Rules of Court Case No. 1 inequitable. Aside from the fact that it
was the first action which was filed, pre-trial
In the instant case, it would therefore be more conference has already been conducted in this
in keeping with the demands of law and case as evidenced by the Pre-Trial Order issued
equity if Civil Case No. 2 will be consolidated by the RTC of Malolos, In fact, the trial court in
with Civil Case No. 1 in order that all the said Order has noted that the deposition of
issues raised by the parties in both cases will Valmadrid, who is one of the witnesses for
be properly resolved, and so that the petitioners, was already taken.
evidence already presented in the former
case will no longer have to be presented in
7. ―That the cause of action is barred by a prior
the latter. Consolidation of cases, when proper, judgment or by the statute of limitations;‖
results in the simplification of proceedings, which
- res judicata and prescription of action
saves time, the resources of the parties and the
under 1139 to 1155 of NCC
courts, and a possible major abbreviation of trial.
Another compelling argument that weighs heavily RE FORUM SHOPPING
in favor of consolidation is the avoidance of the Forum Shopping
KINDS
possibility of conflicting decisions being rendered
(1) Litis Pendentia
by the courts in two or more cases which would
(2) Res judicata
otherwise require a single judgment.
Is the second case filed by respondents
Forum Shopping? The rule has not been
In the present case, the mere fact that the action
extended to a defendant, who…..
for quieting of title (Civil Case No. 438-M-2002) - The concept of FS applies on
was filed earlier than the case for annulment and PlAINTIFF only, filing two actions but
cancellation of titles (Civil Case No. 502-M-2002) not refers to defendants who filed
does not necessarily mean that the first case will separate a new action against a
be given preference. Indeed, the rule on litis plaintiff instead of filing responsive
pendentia does not require that the latter case pleading – setting forth therein as
should yield to the earlier case. What is required cause sof action, specific
merely is that there be another pending action, VICTRONICS vs CA
not a prior pending action
LEE BUN TING vs ALIGAEN
There is reason to dismiss Civil Case No.1,
FACTS: Because of a new ruling of the court, the Heirs of
considering that the issue of whether or not the
Dinglasan sued again Lee Bun ting. Lee Bun Ting filed
contract of mortgage entered into between BPI
motion to dismiss on the ground of res judciata.
and the Gernale spouses should be annulled is
HELD: The doctrine of res judicata is still applicable; . the
not raised in this case and was brought up only in
doctrine of res judicata applies where, between a
Civil Case No. 2. Thus, to dismiss Civil Case No.
pending action and one which has been finally and
2, instead, would leave this issue unresolved.
definitely settled, there is identity of parties, subject
Another reason why Civil Case No. 2 should not
matter and cause of action
be dismissed is that it is a direct action attacking
-posterior changes in the doctrine of this Court cannot
the registered titles of the Gernale spouses over
retroactively be applied to nullify a prior final ruling in
the properties in question, as opposed to
the same proceeding where the prior adjudication was
petitioners' answer in Civil Case No. 1 which
had, whether the case should he civil or criminal in
would merely be considered a collateral and not
nature ( which has become the law of the land)
a direct attack on the said titles. Settled is the
rule that a certificate of title shall not be subject to
a collateral attack; and it cannot be altered,
modified, or canceled except in a direct LEE BUN TING V. ALIGAEN: posterior changes in the
proceeding in accordance with law. doctrine laid by the court cannot be applied retroactively,
and can only apply prospectively, and not retroact to nullify
prior final rulings which have already been the law of the
80
case, based on the PRINCIPLE OF THE LAW OF THE
Section 1. Consolidation. - When actions involving a common CASE.
question of law or fact are pending before the court, it may order a
joint hearing or trial of any or all the matters in issue in the actions; it
o MTD: ground → res judicata.
may order all the actions consolidated; and it may make such orders
o Judge Aligaen denied: there was a change in the
concerning proceedings therein as may tend to avoid unnecessary costs
or delay.
doctrine.

REMEDIAL LAW
CIVIL PROCEDURE
 Therefore the first case cannot be used for in their motion works as a renewal of their
res judicata (Phil. Banking). obligation.
o SC: TC wrong. o Affidavit of Merit is proper in an Answer, not in a
o There has already been a decision. MTD.
o Change of doctrine laid down by the court → can o The mere denial that they ever made a plan would
only be applied prospectively. be proper matter to be placed in an Answer, but not
in a MTD for contrary allegation would require
presentation of evidence.
Prescription
PASCUA V. FLORENDO: the plaintiff’s filed

reconveyance and damages. Defendant filed a MTD on 8. ―That the pleading asserting the claim states no
the ground of prescription. TC denied such Motion, as cause of action;‖
prescription is not apparent upon the face of the Failure to state a cause of action, defined:
complaint. Defendant failed to Answer, which led to his
declaration of default. Court allowed plaintiff to present a. That the plaintiff is not the real party in interest.
evidence ex parte. However, the lawyer presented (no right); or
evidence and showed that in fact that the defendant’s had b. That the allegations of the complaint does not
been in possession of the property for more than 20 years, state the factual basis of the right, obligation,
and enjoying the fruits; thus, it became evident that and delict or wrong.
prescription set it. TC then dismissed the complaint.
Plaintiff now argues that the court cannot anymore do that: As to whether can be amended: It depends.
(1) the issue of prescription as a ground has already been - Yes if it is only an imperfect statement of a
resolved (res judicata), and (2) once a party has declared cause of action. No if there is no cause of
in default, the court has no other choice but to rule in favor action at all since the claim is either non-
of the complainant and grant relief prayed for. existent or premature, or when the plaintiff
does not have the personality to sue,
o FIRST ISSUE: prior denial does NOT ESTOP the meaning, he is not a real party in interest
court in passing upon the issue of prescription.
 MTD: it did not appear in the face of the Imperfect statement of a cause of action can
complaint. be amended.
 NOW, it was dismissed based on the
REMINGTON INDUSTRIAL vs CA, supra.
EVIDENCE presented → factual evidence
was not the issue in the MTD. FACTS: ISL and respondent British Steel moved
 Ground is NOT res judicata. for the dismissal of the complaint on the ground
o SECOND ISSUE: only after the court has that it failed to state a cause of action against
ascertained warrant the granting of the relief. them. The RTC denied the motions to dismiss.
Because of the denial, British filed a petition for
certiorari before the Court of Appeals claiming
therein that the complaint did not contain a single
averment that British committed any act or is
PNB V. HIPOLITO: DOCTRINE: when prescription is the guilty of any omission in violation of petitioners
ground for a MTD, then the implication is that the movant legal rights
is deemed to have hypothetically admit the truth of the ISSUE: WON an imperfect statement of a cause
allegations of the complaint. of action in the complaint can still be amended
despite the filing of a motion to dismiss
o In 1959, plaintiff filed a complaint against the HELD: Yes. In this case, there was still no
defendant, evidenced by a PN (over 10 years). service of answer, hence, amendment can still be
Despite offer of plan for payment, it did not made as a matter of right
materialize. ISSUE2: WON an imperfect statement of a cause
o TC: granted the motion. of action in the complaint can still be amended
o SC: NO → there was allegation of demands, and despite the resolution of the motion to dismiss
defendant offered a plan of payment. HELD2: Yes. Again, there was still no service
 The movant is deemed to have hypothetically answer, hence, amendment can still be made as
admit that there were demands and he a matter of right provided it is done before finality
submitted plans. of the order dismissing the complaint.
 Under the law on prescription, from demand ISSUE3: WON the complaint can still be
is the reckoning period of the ten-year amended despited the pendency of other
prescription. proceeding in relation thereto (e.g. Certiorari)
o SC: dismissal of the complaint was erroneous. HELD3: Yes. Again, there was still no service
o In an MTD, defendant hypothetically admits the answer, hence, amendment can still be made as
truth of the facts contained in the complaint. a matter of right provided it is done before finality
o The complaint does not appear the prescription had of the order dismissing the complaint.
set it. In this case, the amendment was only done
o Such offer of the defendant hypothetically admitted during the pendency of a certiorari before the

REMEDIAL LAW
CIVIL PROCEDURE
appellate court. such is still proper since there determination of sufficiency of the COA is whether
81
was still no service of responsive pleading on the basis on those allegation, a judgment
(answer) may be rendered in favor of the plaintiff.
Premature cause of action or non-existent

cause of action cannot be amended LIM V. DE LOS SANTOS: the defendants here sold to
SWAGMAN HOTELS, supra. each several plaintiffs certain subdivision lots. The
FACTS: Plaintiff filed a complaint on the basis of contract provides that the purchase price be paid in
installments, and the same should be considered as
a debt which has not yet matured/due.
Subsequently, the loan became due. liquidated damages in case of non-payment, or part of the
purchase price upon full payment. It was paid. Plaintiffs
ISSUE: WON the plaintiff file a motion to admit filed against defendant subdivision owner to construct
an amended complaint or a supplemental subdivision road. Allegation: despite full payment,
pleading defendant failed to construct road; defendant made
RULING: NO. It thus follows that a complaint plaintiff understand that she bound herself to construct
whose cause of action has not yet accrued roads. Defendant filed a MTD on the ground that it has no
cannot be cured or remedied by an amended cause of action.
or supplemental pleading alleging the
existence or accrual of a cause of action o TC: sustained.
while the case is pending. The underlying o Plaintiff insists that defendant made a promise, but
reason for this rule is that a person should not be there was no provision regarding such in the
summoned before the public tribunals to answer Contract to Sell.
for complaints which are immature. As this Court o RE: PAROLE EVIDENCE RULE.
eloquently said in Surigao Mine Exploration Co., o MR: held a hearing, and it was limited to reception
Inc. v. Harris: ―It is a rule of law to which there is, of evidence to determine WON there has been an
perhaps, no exception, either at law or in equity, undertaking to build a road.
that to recover at all there must be some cause of  After hearing, the court denied the MR.
action at the commencement of the suit. Xxx‖ o SC: TC correct in disposing off of that issue.
 It is elementary that a MTD based on failure
to state a cause of action should have
deemed to have admitted the facts averred
FAILURE TO STATE A CAUSE OF ACTION v. LACK OF
therein, and in such determine, IT MUST
CAUSE OF ACTION
SOLELY BE JUDGED on the complaint, and
Failure to state a Lack of cause none other.
cause of action of action o Was it correct to have the TC to have presentment
of evidence allunde? IRREGULAR procedure NOT
As to whether Yes if it is only an No if there is no authorized by the rules.
it can be imperfect statement cause of action o The judgment may not inquire into the truth or falsity
amended or of a cause of action. at all since the of the allegations → it is not authorized to inquire
supplemented claim is either into the truth of the allegations and declare them to
non-existent or be false before a hearing is held on the merits of the
premature, or case.
when the o In a MTD, the sufficiency of the complaint is
plaintiff does determined solely by the allegations of the
not have the complaint.
personality to
sue, meaning,
he is not a real
party in interest 9. ―That the claim or demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned, or otherwise extinguished;‖
FAILURE TO STATE THE CAUSE OF ACTION: basis → Extinguishment v. Statute of limitations
the resolution of such issue should be confined only to the (prescription)
examination of the complaint, and NO OTHER.
Extinguishment Statute of limitations
 How do we determine of allegation of ultimate facts (prescription)
would be sufficient for a cause of action: Extinctive prescription Prescription of action
Art. 1117 to 1138 of Art. 1139-1155 of Civil
81
Nauuna ung service before filing. Pero dapat may proof. Hindi Civil Code Code
tinatanggap ng clerk of court hanggang walang proof of service.
However, kapag service of pleading by registered mail, usually, in the
ordinary course of things, nauuna ang filing. But note, there is actually
service one you actually mailed your paper in the post office.
Nonetheless, the service is not considered complete or received
(deemd complete upon actual receipt, or 5 days from first notice, which
ever is earlier).

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CIVIL PROCEDURE
10. ―That the claim on which the action is founded is the exercise of its purely administrative
unenforceable under the provisions of the statute functions.
82
of frauds; ‖ and
iii. undergo conciliation regarding conflicts
- Non-compliance with statute of frauds, in family.
VALID but not enforceable: the following
must be in writing, subscribed by the party
charged, or by his agent; evidence, GENERAL RULE: THE COURT CANNOT MOTU
therefore, of the agreement cannot be PROPRIO DISMISS THE COMPLAINT WITHOUT A
received without the writing, or a secondary MOTION
evidence of its contents: (RAMC11-500) XPN: WHEN THE DISMISSAL IS BASED ON:
(Sale of Real property, Answer for debt of Another, in
consideration of Marriage, representation as to Credit of 1. sec. 1, rule 9
another, obligation not to be performed within one year,
-the court cannot motu proprio dismiss the case
lease for more than one year, sale of personal property for
not less than 500 pesos) unless based on sec. 1, rule 9, namely:
(one year, lease, personal property, marriage, real a. Lack of jurisdiction over the subject
property, debt of another, representation as to credit of matter
third person)
i. An agreement that by its terms is not to b. Litis pendentia
be performed within one year from the c. Res judicata
making thereof;
d. Prescription
ii. A special promise to answer for the
debt, default, or miscarriage of
another; 2. sec. 3, rule 17-Dismissal due to fault of
plaintiff.
iii. An agreement made in consideration of
marriage, other than a mutual promise
to marry;
iv. An agreement for the sale of goods, BORJE V. CFI MISAMIS: the court cannot dismiss the
chattels or things in action, at a price case unless there is a motion (GENERAL RULE).
83
not less than five hundred pesos
v. An agreement for the leasing for a o Plaintiff filed a case for damages for having cut his
longer period than one year, or water connection in bad faith and with malice.
vi. for the sale of real property or of an Defendant Water District filed a MTD on the
interest therein; grounds of lack of jurisdiction and litis pendentia.
vii. A representation as to the credit of a The TC granted the ground, BUT on the ground that
third person. there was no malice in cutting.
o SC: TC committed GAD → it deprived the plaintiff to
- NOTE: contract is still valid, though argue his point.
unenforceable. o Sec. 1, Rule 16 enumerates the grounds for MTD,
- NOTE: Statute of frauds applies only to and it specifically ordains that to motion to this
executor contracts. It does not apply to effect should be filed.
partially executed contracts. o The court does not have the power to dismiss
without the requisite motion duly presented.
PASCUA vs FLORENDO : RE STATUTE OF o Only: Sec. 1, Rule 9, Sec. 3, Rule 17.
o DACUYCOY: the TC dismissed the case on the
LIMITATIONS
ground of improper venue motu proprio.
10. ―That a condition precedent for filing the claim has (1) No case may be filed unless there is a proper
not been complied with.‖ motion.
- e.g (2) Rule on venue was made on the
convenience of the parties, and not of the
i. in Katarungang Pambaranggay law; court.
ii. exhaustion to administrative remedies;
-applies only when the administrative
agency is in the exercise of its quasi- Section 2. Hearing of motion. — At the hearing of
judicial functions, but not when it is in the motion, the parties shall submit their arguments on the
questions of law and their evidence on the questions of
fact involved except those not available at that time.
82 Should the case go to trial, the evidence presented during
Article 1403
83
unless the buyer accept and receive part of such goods and chattels, the hearing shall automatically be part of the evidence of
or the evidences, or some of them, of such things in action or pay at the the party presenting the same. (n)
time some part of the purchase money; but when a sale is made by
auction and entry is made by the auctioneer in his sales book, at the SEC. 2: HEARING OF MOTION:
time of the sale, of the amount and kind of property sold, terms of sale,
price, names of the purchasers and person on whose account the sale is  There has to be a hearing.
made, it is a sufficient memorandum;

REMEDIAL LAW
CIVIL PROCEDURE
 Grounds when evidence may be presented: Plaintiff regular deposits to raise funds to buy the property. And
has no legal capacity (minor, not administrator) to when the funds were quite considerable, Cruz asked the
sue: factual. fund to be withdrawn and to borrow money. They were
made to sign a blank document on the representation that
it was to put the authorities given to him, but it was a
Section 3. Resolution of Motion. — After the Contract of Lease. Then, he asked them to pay and
hearing, the court may dismiss the action or claim, deny vacate the property, with demand to pay back rentals. For
the motion, or order the amendment of the pleading. failure to do such, Cruz initiated an ejectment suit against
them. The defendants raised as a defense that the
Contract of Lease was not the document they signed.
While the unlawful detainer case was pending, defendants
The court shall not defer the resolution of the motion for filed a separate case declare null and void the sale to Cruz
the reason that the ground relied upon is not indubitable. and specific performance demanding from Cruz to
partition the property. Cruz filed MTD on the ground of
forum shopping.
In every case, the resolution shall state clearly and o TC granted the Motion on the ground of litis
distinctly the reasons therefor. (3a) pendentia.
o The order of dismissal became final without the
SEC. 3: HOW MAY THE COURT RULE ON A MTD: lawyer questioning.
o They refiled another case, the very same case that
(1) GRANT: was dismissed.
(2) DENY:  There was now again a MTD on the second
(3) ORDER AMENDMENT OF THE PLEADING: case on the ground of res judicata.
o This time, the dismissal of the second RTC case
INDUBITABLE: beyond any question. was elevated to the CA, on the issue of whether the
first case’s decision is a bar to the refiling of the
second case.
 RESOLUTION: must state clearly and distinctly the
o CA: the first dismissal of the RTC did not bar the
reasons therefore.
refilling of the same case.
 Ground on dismissal of the first case: forum
shopping.
Section 4. Time to plead. — If the motion is o SC: NO, as it is not (f), (h), (i).
denied, the movant shall file his answer within the balance
of the period prescribed by Rule 11 to which he was
entitled at the time of serving his motion, but not less than
five (5) days in any event, computed from his receipt of the Section 6. Pleading grounds as affirmative
notice of the denial. If the pleading is ordered to be defenses. — If no motion to dismiss has been filed, any of
amended, he shall file his answer within the period the grounds for dismissal provided for in this Rule may be
prescribed by Rule 11 counted from service of the pleaded as an affirmative defense in the answer and, in
amended pleading, unless the court provides a longer the discretion of the court, a preliminary hearing may be
period. (4a) had thereon as if a motion to dismiss had been filed. (5a)
Section 5. Effect of dismissal. — Subject to the

right of appeal, an order granting a motion to dismiss The dismissal of the complaint under this section shall be
based on paragraphs (f), (h) and (i) of section 1 hereof without prejudice to the prosecution in the same or
shall bar the refiling of the same action or claim. (n) separate action of a counterclaim pleaded in the answer.
(n)
SEC. 5: EFFECT OF DIMISSAL: dismissal without

prejudice to the same being refiled. SEC. 6, PAR. 1: PLEADING GROUNDS AS
AFFIRMATIVE DEFENSE: if NO MTD → grounds for
 EXCEPTIONS (f), (h), (i): BAR THE REFILING OF dismissal may be pleaded as affirmative defense.
ANOTHER ACTION.
(1) Unenforceability under the Statute of Frauds;  Your choice: MTD or Answer.
(2) Res judicata;  If you have raised a defense in the MTD, and it is
(3) Extinguishment of the claim or demand. denied → can you reiterate that in your Answer.
 Yes, but the court will not hear that.
 Can it be raised later on appeal? YES.
CRUZ V. CARAOS: the parties here were occupants of a  Example: lack of jurisdiction; improper
certain property, owned by X. they tried to deal with the
venue.
owner to purchase the property, and as a means to do
that, they formed an organization (cooperative). Cruz was  NOT an example: non-referral to the
appointed as the administrator. The cooperative made Lupon (waived).

REMEDIAL LAW
CIVIL PROCEDURE 84
 Can raise that again on appeal 1. Dismissal upon notice by plaintiff
as it has been raised before in WHEN: Before service of answer or of motion for
the TC. summary judgment,
 What if you filed a MTD, then denied, can
you raise them against in Answer again? HOW: File a mere notice of dismissal. ( a motion is
NO, it cannot be cured by raising it in the not necessary)
answer. XPN: A class suit shall not be dismissed or
 But, raise it still. compromised without the approval of the court.
 EXCEPT: lack of jurisdiction over the
person (BUCANEGRA). EFFECT:
 If he decides to raise them in the answer, he may
later on ask the court that a PRELIMINARY a. GENERALLY, WITHOUT PREJUDICE: A
HEARING be made. dismissal made by the filing of notice of
dismissal is a dismissal without prejudice.
Hence, the complaint can be refilled.
PAR. 2: without prejudice.
b. XPNS: WITH PREJUDICE IF:
i. the notice of dismissal by the plaintiff
 If the complaint is dismissed because a preliminary provides that the dismissal is with
hearing on the affirmative defense was made, and prejudice
the courts grants the MTD, then what will happen to ii. when filed by a plaintiff who has once
a counterclaim? dismissed in a competent court an
 Will the counterclaim be dismissed, or be action based on or including the same
heard? Applies to BOTH, as the law does claim
not distinguish.
 How will the compulsory counterclaim
survive? (Read PINGA V. SANTIAGO) Two-dismissal rule – Two dismissal
 EFFECT: it survives and the defendant has a rule applies when the plaintiff has (1)
choice either: twice dismissed actions (2) based on
(1) To have the counterclaim be resolved or including the same claim (3) in a
in the same, or court of competent jurisdiction; In
(2) In a separate action. other words, the claim may only be filed
twice. If the refiled claim is dismissed
again through a second notice of
NOTE: Under rule 16, sec. 6, when an affirmative defense dismissal, that second notice triggers
is granted by the court in a preliminary hearing as if a the application of the two-dismissal rule
motion to dismiss has been filed, and the court dismisses and the dismissal is to be deemed one
the action, the defendant who has a counterclaim may with prejudice because considered as
litigate the counterclaim in the same action or in a an adjudication upon the merits.
separate action. If he desires to litigate the counterclaim in
the same action, there is no need to make a manifestation What marks the loss by a plaintiff of the right to cause
expressing his preference. dismissal of the action by mere notice is not the
FILING of the defendant's answer with the Court
- As opposed to rule 17, Sec. 2 which requires (either personally or by mail) but the SERVICE on the
that in order for a counterclaim, whether plaintiff of said answer or of a motion for summary
permissive or compulsory, be litigated in the judgment.
same proceedings, he must make such a
manifestation. Go v. Cruz, G.R. No. L-58986, April 17, 1989
- In the absence of such manifestation made
within 15 days from notice of motion to FACTS: On October 26, California brought an action
dismiss, then, he shall be deemed to have in the CFI of Manila against Dante Go, accusing him
his counterclaim litigated in he separate of unfair competition.
action.
On November 9, Go filed an answer with counterclaim
but copy thereof was only received by California on
Nov. 16 by registered mail.
RULE 17:
84
Section 1. Dismissal upon notice by plaintiff. — A complaint
may be dismissed by the plaintiff by filing a notice of dismissal at any
time before service of the answer or of a motion for summary
3 KINDS OF DISMISSAL UNDER THIS RULE (Secs 1-3): judgment. Upon such notice being filed, the court shall issue an order
confirming the dismissal. Unless otherwise stated in the notice, the
dismissal is without prejudice, except that a notice operates as an
adjudication upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or including the
same claim. (1a)

REMEDIAL LAW
CIVIL PROCEDURE
Meanwhile, or on November 12, 1981, California filed a. GENERALLY, WITHOUT PREJUDICE: a
a notice of dismissal with the Court. dismissal upon the motion of plaintiff shall
be without prejudice.
On December 1, California filed another complaint b. XPN: Unless otherwise specified in the
asserting the same cause of action against Dante Go, order
this time with the CFI at Caloocan City.
EFFECT TO THE COUNTERCLAIMS (WHETHER
Dante Go filed the present petition for certiorari, etc. PERMISSIVE OR COMPULSORY); DISMISSAL
86
with this Court praying for its nullification and LIMITED TO THE COMPLAINT: If a counterclaim
perpetual inhibition. According to him, since he had has been pleaded by a defendant prior to the service
already filed his answer to the complaint before upon him of the plaintiffs motion for dismissal, the
California sought dismissal of the action three (3) dismissal shall be limited to the complaint. (two
days afterwards, such dismissal was no longer a options of defendant)
matter of right and could no longer be effected by
mere notice in accordance with Section 1, Rule 17 of a. PROSECUTE THE COUNTER CLAIM IN
the Rules of Court, but only on plaintiff s motion, and THE SAME ACTIONS: provided within
by order of the Court; hence, the Caloocan Court fifteen (15) days from notice of the motion to
acted without jurisdiction over the second action dismiss by plaintiff, the defendant
based on the same cause. manifests his preference to have his
counterclaim resolved in the same action.
ISSUE: WON California can no longer dismiss its
b. PROSECUTE HIS COUNTERCLAIM IN A
complaint by mere notice due to that fact that an
answer has already be FILED by Go. SEPARATE ACTION: if no such
manifestation was made.
HELD: NO, The petitioner is in error. What marks the Q: May plaintiff move for the dismissal of the
loss by a plaintiff of the right to cause dismissal complaint after the defendant has raised a
of the action by mere notice is not the FILING of counter claim
the defendant's answer with the Court (either
personally or by mail) but the SERVICE on the A: Yes. It may remain provided the defendant
plaintiff of said answer or of a motion for manifests his preference to have his counterclaim
summary judgment. And when we say ―service‖, it resovled in the same action within 15 days from
refers to complete service. notice of motion to dismiss by plaintiff.
NOTE: Manifestation under this rule is not

85 required under sec. 6 of Rule 16 which provides
2. Dismissal upon motion by plaintiff
WHEN: After service of answer or of motion for that any of the grounds for dismissal provided for
summary judgment. under rule 16 may be pleaded as an affirmative
defense in the answer and, in the discretion of
HOW: By motion at the plaintiff's instance save the court, a preliminary hearing may be had
upon approval of the court and upon such terms and thereon as if a motion to dismiss had been filed.
conditions as the court deems proper. the dismissal of the complaint shall be without
prejudice to the prosecution in the same or
- After service of answer of of motion for separate action of a counterclaim pleaded in the
summary judgment, complaint may nolonger answer. In this case, no need for manifestion.
be dismissed by filing of mere notice of
dismissal REITERATION: Under rule 16, sec. 6, when an
affirmative defense is granted by the court in a
preliminary hearing as if a motion to dismiss has
EFFECT: been filed, and the court dismisses the action, the
defendant who has a counterclaim may litigate
the counterclaim in the same action or in a
85
Section 2. Dismissal upon motion of plaintiff. — Except as separate action. If he desires to litigate the
provided in the preceding section, a complaint shall not be dismissed at counterclaim in the same action, there is no need
the plaintiff's instance save upon approval of the court and upon such to make a manifestation expressing his
terms and conditions as the court deems proper. If a counterclaim has
preference.
been pleaded by a defendant prior to the service upon him of the
plaintiffs motion for dismissal, the dismissal shall be limited to the
- As opposed to rule 17, Sec. 2 which
complaint. The dismissal shall be without prejudice to the right of the
defendant to prosecute his counterclaim in a separate action unless
requires that in order for a counterclaim,
within fifteen (15) days from notice of the motion he manifests his whether permissive or compulsory, be
preference to have his counterclaim resolved in the same action. Unless
otherwise specified in the order, a dismissal under this paragraph shall
be without prejudice. A class suit shall not be dismissed or
86
compromised without the approval of the court. (2a)

REMEDIAL LAW
CIVIL PROCEDURE
litigated in the same proceedings, he likewise be dismissed since no jurisdiction
must make such a manifestation. remained for any grant of relief under the
- In the absence of such manifestation counterclaim.
made within 15 days from notice of
motion to dismiss, then, he shall be
deemed to have his counterclaim BA Finance v. Co, G.R. No. 105751, June 30, 1993
litigated in he separate action.
ESCOLIN: It is more practical to pursue FACTS: Petitioner BA Finance Corporation sued
a compulsory counterclaim in the same defendant Co. After that, answer with counterclaim
action, since in such case, there is no (compulsory). During the pre-trial, the plaintiff failed to
need to pay for docket/filing fees. This is appear. Accordingly, defendant Co, filed a motion to
only in so far as compulsory counter dismiss for failure to appear during pretrial. The RTC
claim is concerned granted the motion. After the lapse of thirty-three (33)
days, defendant filed a motion with the court asking
Q: Should the permissive counterclaim be
the court to allow him to present evidence for his
distinguished from compulsory counterclaim?
counterclaim. The RTC granted the said motion.
A: NO ISSUE: WON the counterclaim may still be
Q: May the counterclaim remain? prosecuted in the same action despite the dismissal
of the complaint
A: Yes, the counterclaim may remain The
MAJORITY: NO, The rule is that a compulsory
dismissal shall be limited to the complaint only.
counterclaim cannot "remain pending for independent
NEW RULE: WHEN PLAINTIFF SEEKS THE adjudication by the court." This is because a
DISMISSAL OF HIS CASE, WHAT IS DISMISSED IS compulsory counterclaim is auxiliary to the
ONLY THE COMPLAINT, THE COUNTERCLAIM proceeding in the original suit and merely derives
(WHETHER COMPULSORY OR PERMISSIVE) its jurisdictional support therefrom. In the instant
WILL STILL STAND AND THE HEARING FOR THE petition, private respondents themselves moved for
COUNTERCLAIM MAY BE HAD IN THE SAME the dismissal of the complaint, They could have
PROCEEDINGS PROVIDED THAT THE simply asked the trial court to declare petitioners to be
DEFENDANT MANIFESTS WITHIN 15 FROM "non-suited" on their complaint, and "as in default" on
SERVICE/NOTICE OF THE MOTION TO DISMISS their compulsory counterclaim, for their failure to
OF HIS PREFERENCE TO HAVE HIS appear at the pre-trial despite due notice. But private
COUNTERCLAIM BE RESOLVED IN THE SAME respondents did not. Neither did they reserve their
CASE right to maintain their counterclaim. Consequently, the
dismissal of the complaint carried with it the dismissal
METALS ENG‘R IS ALREADY ABANDONED; of the compulsory counterclaim.
DISMISSAL NOW IS ONLY LIMITED TO THE
COMPLAINT; RULE APPLIES TO BOTH RULE 16 FURTHERMORE: It may also be stressed that
AND RULE 17 private respondents moved to set for hearing the
reception of evidence to support their
Metals Eng‘r v. CA, G.R. No. 95631 October 28, counterclaim more than a month after the case
1991 was dismissed, i.e., they filed their motion after
the lapse of thirty-three (33) days. By then, the
FACTS: Plaintiff failed to pay docket fees. Defendant order of dismissal had already become final.
moved for the dismissal of the case Thereafter, it was error for the appellate court to set it
aside, there being no ground to warrant it. Only error
HELD: What private respondent is in effect saying is of judgment, not error of jurisdiction, was involved.
that his counterclaim should be allowed to proceed
independently of the main action.For all intents and REGALADO‘s SEPARATE OPINION: YES, citing a
purposes, such proposition runs counter to the nature case penned by J.B.L. Retes, the doctrine that the
of a compulsory counterclaim in that it cannot remain complaint may not be dismissed if the
pending for independent adjudication by the court. 14 counterclaim cannot be independently
This is because a compulsory counterclaim is adjudicated is not available to, and was not
auxiliary to the proceeding in the original suit 15 and intended for the benefit of, a plaintiff who
derives its jurisdictional support therefrom, 16 prevents or delays the prosecution or hearing of
inasmuch as it arises out of or is necessarily his own complaint. Otherwise, the trial of
connected with the transaction or occurrence that is counterclaims would be made to depend upon the
the subject matter of the complaint. It follows that if maneuvers of the plaintiff, and the rule would
the court does not have jurisdiction to entertain offer a premium to vexing or delaying tactics to
the main action of the case and dismisses the the prejudice of the counterclaimants. It is in the
same, then the compulsory counterclaim, being same spirit that we have ruled that a complaint may
ancillary to the principal controversy, must not be withdrawn over the opposition of the defendant

REMEDIAL LAW
CIVIL PROCEDURE
where the counterclaim is one that arises from, or is any less final. It was not merely an interlocutory
necessarily connected with, the plaintiff's action and order but a final disposition of the complaint. Thus,
cannot remain pending for independent adjudication upon said dismissal order attaining finality for
failure of either party to appeal therefrom, the
RULES IN OLYMPIA v. CA, infra. jurisdiction which the court had acquired thereon
was finally discharged and terminated, and any
1. Dismissal upon motion, though without
subsequent action filed in accordance with the
prejudice, finally disposes of the case. Once it
reservation cannot be considered a continuation of
attains finality, the case can no longer be
revived. The remedy in such case is to the first action which was dismissed.
institute a new separate action.
It is apparent that the lower court acted in excess of its
2. While an order reviving the case cannot be
done since it has the effect of reversing and jurisdiction when it granted the motion to revive the
setting aside a final dismissal order, an order case filed by petitioner as plaintiff therein. By then
cancelling the replevin is proper since it (December 7, 1973), the dismissal order of
enforced and implemented the dismissal. December 15, 1972 had long become final and
Olympia v. CA, G.R. No. L-43236, December 20, executory, thereby beyond the power of the court
1989 to amend, modify, reverse or set aside. And
certainly, for the court to entertain and grant said
FACTS: Petitioner Olympia International, Inc. motion to revive the case would result in the
(hereinafter Olympia) sold several typewriters to setting aside of the subject dismissal order.
private respondent Alpha Insurance & Surety, Co., Inc.
(Alpha, for brevity). For alleged non-payment of the REMEDY: Under the circumstances, the step
purchase price, Olympia instituted two (2) actions available to petitioner as plaintiff therein if it
against Alpha both for replevin (preparatory to wanted to pursue its claim against Alpha was to
foreclosure) with damages but referring to different institute a new action in accordance with the
typewriters. reservation contained in the order of dismissal. It
could not revive the dismissed case by motion or
The lower court ordered on the issuance of a writ of otherwise, as said dismissal, although without
replevin. Consequently, the typewriters were seized prejudice, had attained finality.
from Alpha and delivered to Olympia. Upon failure of
the parties to reach an amicable settlement, the lower ISSUE2: But may the court act on cancellation of the
court set the case for trial on the merits. replevin and ordered the return of the type writers.
Thereafter, on December 15, 1972, that the lower court HELD2: YES. The crucial difference lies on the fact
issued the following order: ―On joint motion of both that while the order reviving the case had the effect
parties in the above-entitled case, that they will settle of reversing and setting aside the long final
the case amicably out of court, this case is hereby dismissal order, the Order cancelling the replevin
dismissed without prejudice.‖ As negotiations for an enforced and implemented it. In other words, the
amicable settlement failed, Olympia filed a motion to motion of Alpha to cancel the writ of replevin was
revive the case for trial on the merits, acting upon in the nature and character of a motion for
which, the lower court granted the revival on December execution of the dismissal order.
7, 1973.
That the lower court retained jurisdiction to carry into
For more than one and a half years thereafter, Alpha effect its final and executory dismissal order is beyond
filed a motion in the lower court praying, on equitable cavil for while Alpha's motion was filed three (3) years
grounds, for the cancellation of the "preliminary after the issuance of said dismissal order, the same
provisional writs of replevin" previously issued by the may still be taken cognizance of by the lower court in
court. The lower court granted the cancellation accordance with Section 6, Rule 39 of the Rules of
Court which states that a judgment may be executed
ISSUE: WON is it correct for the court to have revived on motion within five (5) years from the date of its entry
the case or from the date it becomes final and executory.
Indeed, logic and equity demand that the writ of
HELD: NO, it can nolonger revive the case. Aside from replevin be cancelled. Being provisional and
the fact that the aforesaid dismissal was expressly ancillary in character, its existence and efficacy
reserved by the trial court to be without prejudice, it depended on the outcome of the case. The case
has been held that the dismissal of a case on motion of having been dismissed, so must the writ's
both parties as in the case at bar is a dismissal existence and efficacy be dissolved. To let the writ
contemplated under Section 2, Rule 17 of the Rules of stand even after the dismissal of the case would be
Court, which is a dismissal without prejudice and not a adjudging Olympia as the prevailing party, when
dismissal governed by Section 3 thereof, which precisely, no decision on the merits had been
operates as an adjudication on the merits. The rendered. The case having been dismissed, it is as if
dismissal without prejudice of a complaint does no case was filed at all and the parties must revert to
not however mean that said dismissal order was their status before the litigation.

REMEDIAL LAW
CIVIL PROCEDURE
notice to the heirs to appear w/in 30 days. If they
87
fail to appear, require the executor to open for
3. Dismissal due to fault of plaintiff settlement. Escolin: there‟s fundamental defect also: If
WHEN: If, for no justifiable cause, the (APRO) dismissal is not questioned then that‟s the law of the
i. plaintiff fails to Appear on the date of the case. Res judicata, whether a decision is right or
presentation of his evidence in chief on wrong, if there‟s final judgment, res judicata.
the complaint, or ( under old rules not
added, it’s only added because of the case
of FERMIN JALOVER vs. PORFERIO EFFECT OF THE DISMISSAL TO THE COUNTERCLAIM
88
YTORIAGA ) failure to present evidence in
(WHETHER COMPULSORY OR PERMISSIVE): The
chief; or
-evidence in chief, NOT rebuttal evidence. dismissal of the complaint (because of the fault of the
plaintiff) is without prejudice to the right of defendant
-This pertains to evidence which proves the
to prosecute his counterclaim in the same action or
plaintiff’s case
separate action.
-not presentation of plaintiff’s rebuttal
evidence. - NO NEED FOR A MANIFESTATION
ii. Plaintiff fails to Prosecute his action for an NOTE:The only time when a manifestation is
unreasonable length of time; or required is under Rule 17, Sec. 2. No need for
iii. Plaintiff fails to comply with these Rules;
manifestation in case of dismissal under Rule 16,
or
and Rule 17 Sec. 3. Neither is this rule applicable
iv. Plaintiff fails to comply with any Order of
the court Rule 17, Sec. 1 precisely because in that case,
no answer has yet been served, hence, a
HOW: (1) upon motion of defendant or (2) upon court’s counterclaim could not have been raised.
own motion
EFFECT:
RULES IN JALOVER V. YTORIA, INFRA,
a. GENERAL RULE: This dismissal is with
89
prejudice , 1. Non-appearance of plaintiff during
b. XPN: unless otherwise declared by the court. presentation of evidence by the defendant
Re Order – take note lesson Sec 16 of Rule 3 : if a does not constitute failure to prosecute.
party dies, the duty of counsel to inform the court of 2. There can be no failure to prosecute once the
fact of death and order substitution of representative plaintiff has already presented all his
to appear for substitution. Without such procedure , evidence in chief.
court cannot proceed in the case unless tapos n 3. His absence merely constitutes:
presentation of evidence. The proper procedure to a. Waiver to cross-examine
b. Waiver to object to the admissibility of
effect substitution is nt by amendment but rather
defendant‘s evidence
Jalover v. Ytoriaga, G.R. No. L-35989, October 28, 1977
87
Section 3. Dismissal due to fault of plaintiff. — If, for no
justifiable cause, the plaintiff fails to appear on the date of the FACTS: Plaintiff Ytoriaga filed against defendant Jalover a
presentation of his evidence in chief on the complaint, or to prosecute complaint. Petitioner Jalover answered. Issues having
his action for an unreasonable length of time, or to comply with these been joined, the case was set for trial. After resting plaintiff
Rules or any order of the court, the complaint may be dismissed upon Ytoriaga’s case, the trial court set the case for defendant
motion of the defendant or upon the court's own motion, without
Jalover’s presentation of evidence. Trial was postponed
prejudice to the right of the defendant to prosecute his counterclaim in
the same or in a separate action. This dismissal shall have the effect of many times stretching to a period of more than 6 years,
an adjudication upon the merits, unless otherwise declared by the until January 26, 1970, when the case was called for trial,
court. (3a) and then Presiding Judge Blanco dismissed the case,
88
F: Plaintiff was not around on the scheduled date for the Defendant to upon motion of defendant, for failure of plaintiff Ytoriaga to
present evidence – hence the D filed a motion to dismiss: ground for appear in court.
failure to prosecute. Trial judge dismissed the complaint based on the
ground – failure to prosecute; Upon MR – opposed in two grounds Two years later, or on January 17, 1972, plaintiff then filed
1)order of dismissal is final 2)that there’s really ground for failure to a Petition for Relief from Judgment. The petition for relief
prosecute. HELD: No failure to prosecute here because there was was given due course, respondent Judge issued an order
already plaintiff’s presentation of evidence, the effects are merely a setting aside the order of dismissal and setting the
waiver of his right to cross-examine and to object to the admissibility continuation of the trial. The reasons stated by respondent
of evidence. Private respondents' absence at the hearing scheduled on Judge in support are: (1) the record shows that while
January 6, 1970 "can only be construed as a waiver on their part to respondent Porferio Ytoriaga was furnished with a copy of
cross-examine the witnesses that defendants might present at the the dismissal order, his counsel, Atty. Atol, was never
continuation of trial and to object to the admissibility of the latter's
served with a copy thereof, hence, pursuant to the settled
evidence. The judgment in the absence of qualification , the dismissal is
rule that where a party appears by attorney, a notice to the
w/ prejudice.
client and not to his attorney is not a notice of law, the said
89
Sec 3 of Rule 17: The dismissal shall have the effect of an adjudication order of dismissal never became final; and (2) the
upon the merits.

REMEDIAL LAW
CIVIL PROCEDURE
dismissal was without legal basis, considering that private filed in said Civil Case No. 3015, no prayer is made for the
respondents had already presented their evidence and declaration of the filiation of the plaintiffs in relation or with
rested their case; consequently, the non-appearance of respect to the deceased Joaquin Mina. The motion to
private respondents and their counsel at the said hearing dismiss was granted.
could not mean failure to prosecute on their part, but may
at worst only be construed as a waiver on private ISSUE: WON the dismissal with prejudice of the first
respondents' part of the right to cross-examine the action is correct for failure to comply with the order of the
witnesses whom defendant might present and to object to court.
the admissibility of defendant's evidence.
HELD: YES. To order an amendment to a complaint within
ISSUE: WON respondent Judge acted without or in a certain period in order to implead as party plaintiff or
excess of jurisdiction or with grave abuse of discretion in defendant one who is not a party to the case lies within the
setting aside the dismissal order because the said order discretion of the Court. And where it appears that the
have long become final and executory, hence, may no person to be impleaded is an indispensable party, the
longer be disturbed. party to whom such order is directed has no other
choice but to comply with it. His refusal or failure to
HELD: NO, plaintiff could not possibly have failed to comply with the order is a ground for the dismissal of
prosecute as they were already past the stage where his complaint for failure to comply with an order of the
they could still be charged with such failure. As court. In this case, the widow and the other heirs are
correctly held by respondent Judge, private indispensable parties since once the shares of illegitimate
respondents' absence at the hearing scheduled can heirs are granted, the shares of the legitimate heirs would
only be construed as a waiver on their part to cross- necessarily diminish.
examine the witnesses that defendants might present
at the continuation of trial and to object to the ISSUE2: WON the second action is entirely barred on the
admissibility of the latter's evidence. The right to cross- grounds of res judicata
examine petitioner's witnesses and/or object to his
HELD2: NO. There is no complete identity between the
evidence is a right that belongs to private respondents
parties in the first case and those in the case at bar.
which they can certainly waive.
The statement is true because in the previous case
ISSUE2: WON relief from judgment is the proper remedy Antonia Pacson was not included as party-defendant. As
a matter of fact the order decided that Pacson was to
HELD2: NO, relief from judgment under Rule 38 of the be included as party-defendant. As to the latter,
Revised Rules of Court is not the appropriate remedy. A therefore, the previous order of dismissal does not
petition for relief is available only if the judgment or order bar the present complaint, not only because she was
complained of has already become final and executory; not made a party but also because the issue of
but here, as earlier noted, the order never attained finality filiation of the parties-plaintiffs was not raised in the
for the reason that notice thereof was not served upon previous case, although such issue was necessary for
private respondents' counsel of record. The petition for the plaintiffs to be able to maintain their right of
relief may nevertheless be considered as a second motion action. In view of this fact, the present action should
for reconsideration or a motion for new trial based on fraud be considered barred in respect to the action for the
and lack of procedural due process. annulment of the deeds of sale and as regards the
defendants spouses Crispino Medina and Cresencia
Mina; but as to the case for the declaration of the
plaintiffs as illegitimate children and heirs of the
Mina v. Pacson, G.R. No. L-17828, August 31, 1963 deceased Joaquin Mina this latter case is not barred
by the previous action as above explained and may
FACTS: Plaintiffs are illegitimate children of the deceased
still be prosecuted.
Joaquin Mina begotten by him with Pilar Lazo while
Joaquin Mina was lawfully married to Antonia Pacson.
They filed an action to recover certain properties alleged
to have been fraudulently transferred by Joaquin to the IN RE: DEATH OF PARTY PRIOR THE FILING OF THE
defendants Medina and Mina and for the declaration of the CASE: ORDER OF THE COURT TO AMEND THE
filiation of the plaintiffs in relation or with respect to the COMPLAINT IS PROPER; DISMISSAL ON THE
deceased Joaquin Mina. Thereafter, the court ordered the GROUND OF FAILURE TO AMEND IS VALID AND MAY
plaintiffs to amend the complaint to include the widow BAR A SECOND ACTION IF THE ORDER OF
Antonia pacson and the other intestate heirs as party to DISMISSAL IS UNQUALIFIED
the case. When they failed to do so, the case was Note: where the death of the defendant occurred prior the
dismissed. filing of the complaint and the court ordered amendment,
failure to comply with such order and the subsequent
A second complaint was filed. Thus, the defendants
dismissal of the action without any qualification, the order
presented a motion to dismiss the complaint on the ground
has the effect of dismissal with prejudice.
of res judicata, alleging that a similar action had previously
been presented. It appears, however, that in the complaint

REMEDIAL LAW
CIVIL PROCEDURE
IN RE: DEATH OF PARTY PENDETE LITE: ORDER dismissal but merely constitutes a waiver
LEGAL REPRESENTATIVES TO APPEAR AND BE agains the necessary party.
SUBSTITUTED IS THE PROPER RECOURSE, NOT TO
ORDER AMENDMENT; DISMISSAL ON THE GROUND Q: What is the effect should the pleader
OF FAILURE TO AMEND TO ADD REPRESENTATIVES fail to comply with the order of the court
WOULD NOT BE VALID AND WOULD NOT BAR A to implead a necessary party?
SECOND ACTION. (rule 3, sec. 16) A: i. The failure to comply with the order
Note: Take note of the process of substitution, the for his inclusion, without justifiable
procedure in case of death pendente lite is not to order cause, shall be deemed a waiver of
amendment but to order the heirs or representatives to the claim against such party.
appear and be substituted.; There is no obligation on the BUT: ii. The non-inclusion of a
part of the plaintiff to amend, even if ordered by the court necessary party does not prevent the
since the procedure is for the court to order the heirs or court from proceeding in the action, and
representatives to appear and be substituted. The the judgment rendered therein shall be
dismissal therefore is not valid, it being based on an without prejudice to the rights of such
improper/erroneous order. necessary party.
IN RE: NON-JOINDER OF PARTIES IN RE:EFFECT OF NON-COMPLIANCE WITH ORDER

GRANTING MOTION FOR BILL OF PARTICULARS
RULE 1: Neither misjoinder nor non-joinder of
parties (whether indispensable or necessary) 1. If the order is not obeyed or in case of insufficient
is ground for dismissal of an action. compliance therewith, the court:
a. May order the striking out of the peading
REMEDY: Parties may be dropped or or the portion thereof to which the order is
added by order of the court on directed; or
motion of any party or on its own b. Make such order as it may deem just.
initiative at any stage the action and on 2. Plaintiff’s failure to comply with the order of the
such terms as are just. Any claim court may be a ground for dismissing the
against a misjoined party may be complaint. Such a dismissal, unless made
severed and proceeded with separately. without prejudice, would be a bar to a
subsequent action on the same cause. (Bautista
Q: Thus, if an indispensable party is v. Teodoro, infra.)- cited in Beda
not joined would that be a ground for Bautista v. Teodoro, G.R. No. L-8894. May 31, 1957
a motion to dismiss?
A: No, it is not a ground for a motion to SYLLABUS
dismiss, because the procedure is in
PLEADING AND PRACTICE; COMPLAINT; DISMISSAL;
sec. 11. The court will merely order the
PLAINTIFF‘S FAILURE TO COMPLY WITH ORDER OF
joinder in case of non-joinder. In case of
COURT. — Where the plaintiff is ordered either to amend
mis-joinder, the court will order the
the complaint or to file a bill of particulars within ten days
dropping of parties.
from receipt of notice and an extension of two weeks
RULE 2: Once the court orders the addition of granted by the Court and plaintiff still fails to comply with
an ―INDISPENSABLE‖ party, non-compliance said order, the action may be dismissed upon motion of
therewith is a ground for dismissal with the defendant or upon the Court’s own motion pursuant to
prejudice Section 3, Rule 30 (now sec. 3 Rule 17) and Section 3,
Rule 16 of the Rules of Court.
CAVEAT: Q: But if the court orders the THERE CAN BE NO RES JUDICATA IF NO SUMMONS
dropping or the adding of an HAS BEEN SERVED TO THE DEFENDANT IN THE
indispensable party (not merely FIRST CASE ALTHOUGH THE FIRST ACTION HAS
necessary party), and plaintiff/pleader BEEN DISMISSED WITHOUT QUALIFICATION FOR
fails to comply with the order of the FAILURE TO PROSECUTE
court, may the court dismiss?
A: YES, under rule 17, sec. 3, failure to GENERAL RULE: A court can only render a judgment on
comply with the order of the court is a the merits. It is a judgment on the merit when it disposes
ground for the dismissal of the case. of the case on the issues raised in the pleadings. If not
And such dismissal is with prejudice. based on the pleadings, not a judgment on the merits
RULE 3: On the other hand, the non

compliance with an order of adding a XPN: Rule 17, Sec. 3, Dismissal, if without qualification is
―NECESSARY‖ party is not a ground for considered judgment on the merits though not based on
the issues raised in the pleadings. The rules consider it on

REMEDIAL LAW
CIVIL PROCEDURE
the merits. But before the court can render judgment Sps. De Guzman v. Ochoa, G.R. No. 169292, April 13 :
on the merits, the court must have jurisdiction over 2011
the subject matter AND jurisdiction over the person of
FACTS: the petitioners raised the ground of defective
the defendants either by proper service or voluntary
appearance. verification and certification of forum shopping only when
they filed their second motion to dismiss, despite the fact
Planters Bank v. Molina, G.R. No. L-54287, September that this ground was existent and available to them at the
28, 1988 time of the filing of their first motion to dismiss.
ISSUE: WON the defects have been deemed waived
FACTS: Plaintiff Republic Planters Bank filed complaints
in Civil case No. 1 and Civil case No. 2 against defendant HELD: Yes, absent any justifiable reason to explain this
Molina, for the collection of a sum of money. Civil Case fatal omission, the ground of defective verification and
No. 1 was dismissed for failure of the petitioner "to certification of forum shopping was deemed waived
prosecute its case within a reasonable length of time‖ on and could no longer be questioned by the petitioners
the ground that the plaintiff failed to see to it that summons in their second motion to dismiss.
were served to the defendants and more than a year has
lapsed. The order of dismissal was without qualification.
ISSUE2: WON the requirement of verification is
When Civil Case No. 2 was filed by petitioner, a motion to jurisdictional
dismiss was submitted by private respondents on the
HELD2: NO, contrary to petitioners' assertion, the
ground that the cause of action is barred by a prior
requirement regarding verification of a pleading is formal,
judgment (res judicata) in Civil Case No. 1. Private
not jurisdictional. Such requirement is simply a
respondents opined that said order was an adjudication
condition affecting the form of the pleading, and non-
upon the merits. The trial court in Civil Case 2 dismissed
compliance with which does not necessarily render
the case on the ground of res judicata
the pleading fatally defective. Verification is simply
ISSUE: WON the court is correct in dismissing the civil intended to secure an assurance that the allegations in the
case 2 on the ground of res judicata pleading are true and correct and not the product of the
imagination or a matter of speculation, and that the
HELD: NO, the order of dismissal in Civil Case No. 1 pleading is filed in good faith. In fact, the court may
does not have the effect of an adjudication on the order the correction of the pleading if verification is
merits of the case because the court that rendered the lacking or act on the pleading although it is not
same did not have the requisite jurisdiction over the verified, if the attending circumstances are such that
persons of the defendants therein. This being so, it strict compliance with the rules may be dispensed
cannot be the basis of res judicata and it cannot be a with in order that the ends of justice may thereby be
bar to a lawful claim. If at all, such a dismissal may be served.
considered as one without prejudice.
ISSUE3:WON the requirement of submission of
Trial courts have the duty to dispose of controversies after certification of non-forum shopping is jurisdiction
trial on the merits whenever possible. In this case, there HELD3: NO. Similarly, the rule requiring the
are no indications that petitioner intentionally failed to submission of such certification of non-forum
prosecute the case. The delay could not be attributed to its shopping, although obligatory, is not jurisdictional.
fault. Petitioner pursued the case with diligence, but The certification requirement is rooted in the principle that
jurisdiction could not be acquired over defendants-private a party-litigant shall not be allowed to pursue simultaneous
respondents. The sheriff had not yet submitted his return remedies in different fora, as this practice is detrimental to
of the alias summons when the action was precipitately an orderly judicial procedure.
dismissed by the trial court. These are proven
circumstances that negate the action of respondent judge ISSUE4: WON the trial court should have dismissed the
that the dismissal of Civil Case No. 116028 has the effect complaint motu proprio.
of an adjudication upon the merits and constitutes a bar to HELD4: No, the Court rules in the negative. Section 5,
the prosecution of Civil Case No. 129829. The court finds Rule 7 of the Rules of Court is clear that failure to comply
that the two questioned orders of the trial court are with the requirements on the rule against forum shopping
irregular, improper, and, were issued with grave abuse of shall be cause for the dismissal of the case "upon motion
discretion amounting to excess of jurisdiction. and after hearing."
COURT CANNOT MOTU PROPRIO DISMISS THE CASE

FOR LACK OF VERIFICATION, OR FOR DEFECTIVE
CERTIFICATION AGAINST NON-FORUM SHOPPING; Sec. 4. Dismissal of counterclaim, cross-claim, or
DEEMED WAIVED IF NOT RAISED IN THE FIRST third-party complaint. The provisions of this Rule shall
MOTION TO DISMISS; BOTH ARE NOT apply to the dismissal of any counterclaim, cross-claim, or
JURISDICTIONAL third-party complaint. A voluntary dismissal by the
claimant by notice as in section 1 of this Rule, shall be
made before a responsive pleading or a motion for

REMEDIAL LAW
CIVIL PROCEDURE
summary judgment is served or, if there is none, before
the introduction of evidence at the trial or hearing.
- For instance, you file a counter-claim, you can

also dismiss that by mere notice kung wala pang
service of responsive pleading or a motion for
summary judgment is served.
―if there is none, before the introduction of
evidence at the trial or hearing.‖
- If there is none, it’s either walang sagot or
sometimes in in rem actions there’s no
opposition, if there’s no opposition, it can be
dismissed before introduction of the evidence.
- Usually ung mga special proceeding. (e.g.
petition for declaration of insolvency)

REMEDIAL LAW
CIVIL PROCEDURE
SUMMARY RULE 16 RULE 17 SEC. 1 RULE 17 SEC. 2 RULE 17 SEC. 3
MOTION TO DISMISS DISMISSAL UPON DISMISSAL UPON DISMISSAL DUE TO

NOTICE BY MOTION BY PLAINTIFF FAULT OF
PLAINTIFF PLAINTIFF
WHEN WHEN TO FILE: Within Before service of After service of answer If, for no justifiable
the time before filing answer or of motion for or of motion for summary cause, the (APRO)
the answer to the summary judgment, judgment.
1. plaintiff fails to
complaint or pleading
Appear on the
asserting a claim. It may date of the
be filed within the period presentation of
for filing an answer. his evidence in
Namely, within 15 days chief on the
from service of summons complaint,
2. Plaintiff fails to
Prosecute his
action for an
unreasonable
length of time; or
comply with
these Rules; or
comply with any
Order of the
court
HOW GROUNDS; GENERAL RULE: File By motion at the (1) upon motion of
NECESSITY OF a mere notice of plaintiff's instance save defendant; or
MOTION: a motion to dismissal. ( a motion is upon approval of the
dismiss may be made not necessary) court and upon such (2) upon court’s own
on any of the following terms and conditions as motion, motu
XPN: A class
grounds: suit shall not the court deems proper. proprio
1. Lack of jurisdiction be dismissed
over the person of or
the defending party compromised NOTE: After service of
2. Lack of jurisdiction without the answer of of motion for
over the subject approval of summary judgment,
matter of the claim; the court. complaint may nolonger
3. Improper venue; be dismissed by filing of
4. Plaintiff’s lack of mere notice of dismissal
legal capacity to
sue;
5. Litis pendentia;
6. Resjudicata
7. Prescription;
8. Failure to state
cause of action;
9. Claim has already
been paid, waived,
abandoned, or
otherwise
extinguished;
10. Unenforceability
due to statute of
frauds; and
11. That a condition
precedent for filing

REMEDIAL LAW
CIVIL PROCEDURE
the claim has not
been complied with.
XPN; MOTION NOT

NECESSARY: only
when based on sec. 1
Rule 9
1. lack of jurisdiction
over subj.matter;
2. litis pendentia;
3. res judicata;
4. prescription
EFFECT TO THE GENERALLY, GENERALLY, GENERALLY, WITHOUT GENERAL RULE,
ACTION WITHOUT PREJUDICE: WITHOUT PREJUDICE: a dismissal WITH PREJUDICE:
Subject to the right of PREJUDICE: A upon the motion of This dismissal is with
appeal, granting the dismissal made by the plaintiff shall be without prejudice,
motion to dismiss is filing of notice of prejudice.
WITHOUT PREJUDICE dismissal is a
to the re-filing of the dismissal without
XPN: unless
case prejudice. Hence, the
XPN: Unless otherwise otherwise declared
complaint can be by the court.
refilled. specified in the order
XPNS: PURE (with
prejudice)
a. Prescription XPNS: WITH
b. Unenforceable due PREJUDICE IF:
to statute of
i. the notice of
Frauds;
dismissal by the
c. Res Judicata plaintiff provides that
d. Extinction (paid, the dismissal is with
waived) prejudice
ii. when filed by

a plaintiff who has
once dismissed in a
competent court an
action based on or
including the same
claim (Two-dismissal
rule)
EFFECT TO THE without prejudice to Since there is no DISMISSAL LIMITED TO The dismissal of the
COUNTERCLAIM the prosecution in the answer yet filed by THE COMPLAINT: If a complaint (because
(Whether same or separate the adverse party, no counterclaim has been of the fault of the
permissive or action of a counterclaim counterclaim is pleaded by a defendant plaintiff) is without
compulsory) pleaded in the answer. recoverable. prior to the service upon prejudice to the
him of the plaintiffs right of defendant to
-no need for the prosecute his
defendant to file a motion for dismissal, the
counterclaim in the
manifestation of his dismissal shall be
same action or
preference to proceed limited to the complaint.
separate action.
(two options of
defendant)
a. PROSECUTE THE -NO NEED FOR A

COUNTER CLAIM IN MANIFESTATION
THE SAME
ACTIONS: provided
within fifteen (15) days
from notice of the

REMEDIAL LAW
CIVIL PROCEDURE
motion to dismiss by
plaintiff, the
defendant manifests
his preference to
have his
counterclaim
resolved in the same
action.
b. PROSECUTE HIS
COUNTERCLAIM IN
A SEPARATE
ACTION: if no such
manifestation was
made.
-necessary for the
defendant to file a
manifestation of his
preference to proceed

REMEDIAL LAW
CIVIL PROCEDURE
ACADEMIC YEAR 2016 – 2017
p
(c) Amendments to the pleading: if it is the

complaint being amendment, when should
be the amended pleading be answered?
(d) Stipulations or admissions of facts and of
RULE 18: PRE-TRIAL
documents to avoid unnecessary proof;
a. PRIVATE DOCUMENTS: need to be
authenticated.
RULE 18: PRE-TRIAL: flow of the case: b. PUBLIC DOCUMENTS: usually, does
not anymore require proof of
(1) Complaint is filed. authenticity.
(2) Defendant can either: (e) Witnesses;
a. File an Answer, or (f) Referral to a commissioner: when may a
b. File a Motion to Dismiss: if denied, then he case be referred to a commissioner? When it
should Answer. is complicated.
(3) When an Answer is filed, then issued have now (g) Judgment of the pleadings, summary
been joined: we can determine the facts admitted judgment, dismissing of the action should a
and those that are denied. valid ground be found to exist;
(4) Pre-Trial. (h) Suspension of proceedings; and
(i) Such other matters as may aid in the prompt
SEC. 1: When should Pre-Trial be conducted? After the disposition of the action.
last pleading has been served and filed.
PRELIMINARY CONFERENCE: the parties appear in
 Last pleading: Reply. court and the court will refer it for preliminary conference.
 Or if no reply is filed, after the lapse of ten (10) days
from the filing of the Answer.  They go to the Clerk of Court, who will endeavor
 If there are counterclaims, Answer to the that parties will enter into an amicable settlement.
Counterclaim.  Also, for the marking of exhibits.
 DUTY OF THE PLAINTIFF: to promptly move ex  Ask for comparison of the original with the
90
parte to set the case for pre-trial. photocopy, for marking purposes.
 Under the old Rules, the Clerk of Court will  The Clerk will make a report, and refer the parties
now set the case for Pre-Trial. to the judge.
 If the claimant or he plaintiff does not  It will undergo all of these again.
promptly move to set the case for pre-trial,  Then, Pre-Trial proper.
he shall be guilty of failure to prosecute
within a reasonable period of time. SEC. 3: WHO SHOULD BE NOTIFIED? The notice of PT
 Subject to dismissal under SEC. 3, RULE shall be served on:
17.
 It is non-litigious as it will not prejudice the (1) On counsel (if represented); or
rights of the adverse party. (2) On the party who has no counsel.
SEC. 2: pre-trial is MANDATORY, and it cannot be  Who should be notified of the PT? Under the old
dispensed with, as in criminal cases Rules, both.
 NOW, the counsel first if the party is represented by
 MATTERS taken up during the PT: his counsel.
(a) Mediation, Judicial Mediation, arbitration:  The counsel is charged to inform his client.
submission of alternative modes of  He is duty bound to inform his client.
resolution.  Second sentence: result of jurisprudence.
 Even if it had already undergone
conciliation under the Barangay. SEC. 4: WHO SHOULD APPEAR? Parties AND their
(b) Simplification of issues: in a civil case, counsel to appear at the pre-trial.
usually, there two kinds of issues:
a. FACTUAL ISSUE: controverted  The party himself.
issues.  REASON: if they will discuss amicable
 Later on after the pre-trial, the settlement, desirability of amendments.
court will enumerate the  It is obligatory.
issues, which shall be the  Appearance of a party may be dispensed
subject of the trial. with if:
b. LEGAL ISSUE: (1) Valid cause is shown therefor, or
(2) If a representative shall appear in his
behalf, fully authorized in writing (a) to
90 enter into an amicable settlement, (b)
Non-litigious motion: you need not comply with the three-day notice
rule, notice of hearing.
to submit to alternative modes of
dispute resolution, and (c) to enter
LITIGIOUS MOTION: when it will prejudice the right of the adverse into stipulations or admissions of facts
party, then it shall comply with the Rules (three-day notice, notice of and of documents.
hearing, proof of service).
CIVIL PROCEDURE | ATTY. ESCOLIN | AUF – SOL 2016 Page 147 | Agapito-Bantay-Caligagan-Fogata
REMEDIAL LAW
CIVIL PROCEDURE
p
 That is the minimum →  Failure to file PTB has the same effect as failure to
pwedeng dagdagan, bawal appear during the PT.
bawasan.
 If a party is represented by an SEC. 7: PRE-TRIAL ORDER: recite in detail the matters
agent, he must be empowered taken up in the conference.
by an SPA.
 REASON: these are all acts of  Amendment to conform with the evidence: must be
dominion. OBJECTED.
 If a CORPORATION:  Ground for objection: irrelevant → not one of
Secretary’s Certificate, that the the issues agreed upon.
Board has passed a resolution  Example: where in the PTO the issue is
authorizing a certain person to WON the plaintiff is the owner of the land in
appear. question by virtue of a DOS, but presented
evidence that the property was acquired by
SEC. 5: EFFECT OF FAILURE TO APPEAR: him through succession.
 The counsel of the adverse party
(a) PLAINTIFF: a cause for the dismissal of the action, must object, such evidence being
with prejudice, unless ordered otherwise. irrelevant.
(b) DEFENDANT: cause to allow the plaintiff to present  Contents of the order shall control, unless modified
his evidence ex parte, and to render judgment on before trial to prevent manifest injustice.
the basis thereof.  IMPORTANCE OF PRE-TRIAL:
 If the defendant does not appear during the (1) It is the duty of the claimant/plaintiff to
pre-trial, the plaintiff will file a Motion To promptly move to set the case for PT.
Declare Defendant As In Default. (2) Who should be notified?
 Strictly speaking, a defendant can only be (3) Who should appear that the pre-trial?
declared in default for failure to file a Exceptions?
responsive pleading. (4) SPA: basic powers that should be given to
 But same effect: presentation of evidence ex the attorney-in-fact.
parte. (5) Effect of failure to appear by the plaintiff or
by the defendant.
(6) Pre-Trial Brief and Pre-Trial Order.
IN DEFAULT AS IN DEFAULT
Court cannot render a Court can render a RULE 19: INTERVENTION

judgment in an amount judgment more than what is
different from what prayed prayed for.
for in the complaint.
REMEDY: file Motion to Lift File a Motion for RULE 19: INTERVENTION:
Order of Default, under Reconsideration (MR) of
oath, grounds: FAME, and the Order of the court
meritorious defense. allowing the party to
present evidence ex parte. THIRD-PARTY INTERVENTION
COMPLAINT
- Grounds: maybe Forces a third party, not yet The initiative comes from
FAME, but there can be a party in the case, to the third party.
other grounds (i.e. intervene with the initiative
sickness, marriage). of those party of the case.
ANSWER: 15 days from 15 days from notice of the
SEC. 6: PRE-TRIAL BRIEF: in such manner as shall service of summons. order admitting the same.
ensure their receipt thereof at least THREE DAYS before
the date of PT. SEC. 1: WHO MAY INTERVENE: A person who has legal
interest (must be a real party in interest):
 Statement of willingness to enter into amicable
settlement, stating the following: (1) In the matter in litigation, or
(1) Indicating the terms; (2) In the success of either parties, or
(2) Summary of admitted and not admitted facts (3) In the interest against both, or
(controverted matters); (4) Is so situated as to be adversely affected by a
 Proposed stipulations. distribution or other distribution of property in the
(3) Issues; custody of the court or of an officer thereof.
(4) Documents and exhibits to be presented,
stating their purpose thereof;  WITH LEAVE OF COURT: to admit and to
(5) Discovery; intervene.
(6) Number and names of witnesses, and the  Do you have to comply with the requirement that
substance of their testimony. the intervenor is a real party in interest?
DEFINITELY.
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 The court shall determine WON the intervention o In this case, the interest of the intervenor is merely
shall unduly delay the adjudication of the rights of subsidiary to that of the principal defendant.
the original parties, and WON the intervenors right
may be fully protected in a separate proceeding.
SEC. 2: TIME TO INTERVENE: any time before the

METROBANK V. RTC (1990): Good Earth Emporium, in
rendition of judgment.
order to finance the construction of a building along
Avenida, Rizal, borrowed money from BPI. To secure
 From notice of the order admitting the complaint in payment of the loan, the property where the building will
intervention.
be constructed, and the building were subject to a REM.
 If there is a decision, then it is already too late.
Due to the lack of funds, Good Earth went to Metrobank to
 Must be served on the original parties and the borrow money to finance the central air conditioning unit
court. which Metrobank agreed. Later on, Metrobank, for non-
payment of the loan for air conditioning units, sued Good
SEC. 3: PLEADINGS-IN-INTERVENTION:
Earth and its owner for collection, including BPI, as in the
meantime, the loan to BPI for the building was likewise not
(1) COMPLAINT-IN-INTERVENTION: if he asserts a
paid, and as a result BPI foreclosed on the mortgage for
claim against either or all of the parties, or
the replevin of the air conditioning units installed in the
(2) ANSWER-IN-INTERVENTION: if he unites with the
building, which were mortgaged by Good Earth to
defending party in resisting a claim against the Metrobank before BPI acquired the building at an auction
latter. sale by virtue of the extrajudicial foreclosure. Now the
supplier of the air conditioning units filed a motion to
SEC. 4: TIME TO ANSWER: 15 days from the notice of
intervene alleging that a certain sum remain unpaid from it
the order admitting the same.
from the sum being sought to recovered (material man’s
lien). TC allowed the intervention. Thereafter, BPI and
Metrobank, without the knowledge and consent of the
ORDONEZ V. GUSTILO (1990): Plaintiff filed action to supplier, entered into a compromise agreement. When it
enforce the reclamation contract entered into by Salinas was submitted to the court, the same was approved.
Development Co. and the Municipality of Rosario, Cavite. When the supplier learned about the compromise
Plaintiff is seeking the reconveyance of a parcel of agreement, it moved for its reconsideration. TC granted.
reclaimed land. Alleging that Rosario, Cavite failed to give Metrobank contends that the intervention should be
the contract share to plaintiff, this case was filed. The dismissed by reason of the dismissal of the main case, as
defendants were the Municipality of Rosario and its Mayor. an intervention is merely ancillary / subsidiary to the
An Answer was filed, resisting the plaintiff’s claim. interest of the parties.
Thereafter, Brgy. Capt. Of Tejeros of Rosario, together
with 7 other municipal officers intervened, alleging that the o ISSUE: was the reconsideration property?
reclaimed area came about by natural accretion, and no o SC: YES.
reclamation was ever done by the plaintiff. During the Pre- o REASON: after the intervenor was allowed to
Trial, defendant municipality manifested that they have appear in court, Metrobank has no absolute right to
arrived at a settlement and will be submitting a put the intervenor out of court by the dismissal of
compromise agreement at a later date. The intervenors the action.
were fully aware of this intended compromise agreement. o Once the intervenor is allowed, the intervenor
On the other hand, intervenors asked that they be allowed becomes a party to the case, and is therefore
to present evidence to support their answer-in- entitled to all notices, especially when it shall
intervention. Later on, the compromise agreement was prejudice its rights.
filed on May 20, and only a part of the reclaimed land was o LESSON: once intervention has been allowed, the
allotted to the plaintiff. Meanwhile, additional hearings intervenor for all intents and purposes becomes a
were conducted on the intervention. But later on, on June party to the case, and hence entitled to all notices.
20, the intervenors filed a motion to set aside the o Since the supplier was never notified or given the
compromise agreement on the ground that there was an opportunity to comment on the compromise
intervention. TC denied the motion. Plaintiff moved to agreement, then in this case, immediately upon
terminate the proceedings, and the TC granted. learning of such agreement, it filed an MR.
o ISSUE: WON It was correct for the TC to have
dismissed the case notwithstanding of the pendency
of the intervention.
ORDONEZ case METROBANK case
o SC: YES, the TC was correct in terminating the
proceedings.
o REASON: an intervention is a mere collateral, The interest there of the The action of the intervenor
accessory or ancillary to the principal action, and is intervenors is subsidiary to is not just subsidiary to the
not an independent civil action. that of the principal main case; it can even
o The judgment approving the compromise defendant. stand independently of the
agreement is final and executory; accordingly all material man’s lien of the
pending issues become moot and academic once units.
the agreement is approved by the court.
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LIMITATIONS OF INTERVENTION: discretionary upon cannot be injected in a suit where it would

the court (SEC. 19): enlarge or complicate the issue of the main
action, or expand the scope of the remedies.
(1) WON the intervention will unduly delay or o Petitioner would do well to reflect on the doctrinal
(2) Prejudice the adjudication of the rights of the rule that an intervention is merely collateral or
parties. accessory or ancillary to the principal action, and
(3) WON the intervenor’s right may be fully protected in not an independent proceeding; it, is an
a separate proceeding. interlocutory proceeding dependent on or subsidiary
to the case between the original parties.
 Where the main action ceases to exist, there
BIG COUNTRY RANCH CORP. V. COURT OF is no pending proceeding wherein the
APPEALS (1993): this involves two barges, originally intervention may be based.
owned by Big Country Ranch Corp. Golden Plains Sawmill
acquired the barges by virtue of an auction sale. Later on, NOTE: DISCRETION OF THE COURT TO PERMIT OR
Palarca, claiming to be the owner of these barges, filed an DISALLOW THEREOF, NOT REVIEWABLE BY
action for replevin against the Coast Guards. The main CERTIORARI NOR CONTROLLED BY MANDAMUS;
case is an action by Palarca for replevin of two barges. He APPLICATION IN CASE AT BAR. — The permissive tenor
filed a replevin bond and the TC issued the writ. Golden of the provision on intervention shows the intention of the
Plains intervened (first intervention), claiming that it is now rules to give to the court the full measure of discretion in
the owner of the two barges. There was also an issue as permitting or disallowing the same. The discretion of the
to the identity of the barges, when the sheriff implemented court, once exercised, cannot be reviewed by certiorari nor
the writ, parang iba ang measurement, and the court controlled by mandamus save in instances where such
ordered the Phil. Coast Guard to measure the barges in discretion has been so exercised in an arbitrary or
the presence of the representatives of the parties. Then, capricious manner. As a general guide in determining
the original owner, Big Country, also intervened (second whether a party may intervene, the court shall consider
intervention), saying that when the barges were auction, whether or not the intervention will unduly delay or
there was regularity in the conduct of the auction. TC prejudice the adjudication of the rights of the original
denied the intervention. It appearing that the movant has parties, and whether or not the intervenor's rights may be
not alleged any legal interest in the two barges involved, fully protected in a separate proceeding. In the present
or against all of them, or so situated that he shall be case, there is no showing of grave abuse of discretion on
adversely affected by the claims, the movant has been the part of the trial court. It denied petitioner's motion for
divested of the two barges, and said motion shall unduly intervention by reason of its findings, which were affirmed
delay and prejudice the adjudication of the rights of the by respondent Court of Appeals, that the intervention
parties, and it can protect its right in a separate would only unduly delay the case and prejudice the
proceeding, it was denied. CA affirmed the decision of the adjudication of the rights of the original parties; that herein
RTC. petitioner has no legal interest in the matter in litigation;
and that at any rate, his rights, if any, can be ventilated
o ISSUE: Where the two lower courts in error in and protected in a separate action. The said findings of
denying intervention? the trial court are not without rational bases. It is admitted
o SC: they were NOT. by petitioner that the two barges which are the subject of
o As a general guide in determining whether a party the litigation have already been sold to defendant-
may intervene, the court must consider: intervenor, herein respondent Golden Flame Sawmill
(1) Will it unduly delay the case? Corporation, in a public auction held on April 17, 1989. In
(2) Will it prejudice the adjudication of the rights fact, the corresponding certificates of sale therefor have
of the parties? been issued in the name of said respondent corporation.
(3) Will its right be fully protected in a separate These certificates of sale constituted the very reason why
proceeding? it was allowed to intervene in the main case.
o SC: petitioner’s claim that the public sale/auction
was attended by irregularities would be better
threshed out in a separate proceeding.
o To allow the petitioner to intervene in the replevin
suit which is primarily on the issue of possession, RULE 20: CALENDAR OF CASES
would not just unnecessarily complicate it, new and
unrelated issues of conflicting claims of ownership
to the case of replevin, and shall inevitably cause SEC. 1: CALENDAR OF CASES: Clerk of Court shall
delay in the rights claimed by the parties. keep a calendar of cases, under the direct supervision of
o Delay due to the complication of issues. the Judge.
o If the issue of the validity of the sheriff’s sale will be
added, it will complicate the main issue of who is SEC. 2: ASSIGNMENT OF CASES: done exclusively by
entitled to the possession. raffle.
o Intervention is not intended to change the nature of
the main action itself, or to stop or delay the trial.  Shall be done in open session of which adequate
o The remedy of intervention must not be allowed if it notice shall be given so as to afford interested
will have the effect of retarding the principal suit. parties the opportunity to be present.
o ALSO, in general, an independent controversy
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 Kasi dinodoktor „yung raffle, para matama sa things demanded which must appear to the
91
judge na kilala mo, or ng abogado mo. court to be prima facie RELEVANT.
H.C. LIEBENOW V. PHIL. VEGETABLE OIL COMPANY

RULE 21: SUBPOENA
(1918): A manager of a factory was hired, and he was
entitled, among others, to bonuses only if the company
earned money. He sued for the bonus. To determine the
SEC. 1: SUB (under) POENA (penalty) AD amount of the bonus, as it would depend upon the
TESTIFICANDUM: it is a process directed to a person earnings of the company, he subpoena-ed all of the
requiring him to attend and to testify at the hearing of the financial records of the corporation.
trial of an action, or at any investigation conducted by
competent authority, or for the taking of his deposition. o SC: SPECIFY the documents.
o Otherwise, fishing expedition.
 Under the pain of penalty.  You cannot do that via subpoena, but by any
 A process where a person is required to appear in of the modes of discovery.
court:  And it must be RELEVANT to the case.
(a) To testify in the hearing, or
(b) An investigation conducted by competent NOTE: Inasmuch as the subpoena duces tecum is a
authority, or process which easily lends itself to abuse, it should be
 Example: Congress conducting an controlled by the courts with a view to making it
investigation in aid of legislation. conformable to law and justice. The court should never
(c) For the taking of his deposition. require the production of books and documents which are
irrelevant to the issue or which, if produced, could not be
SUBPOENA DUCES TECUM: to bring with him any properly utilized at the trial. A party desiring access to
books, documents, or other things under his control. voluminous books and documents which cannot be
properly utilized at the hearing, without expert assistance,
 NOT to testify. should by timely motion before the trial ask the court to
 It is to bring documents, books, other things under require the adversary party to submit such books and
his control. documents for examination under such reasonable
 But it can be a combination: subpoena and conditions as the court may specify.
subpoena duces tecum.
SEC. 2: BY WHOM ISSUED: SEC. 4: GROUNDS TO QUASH A SUBPOENA DUCES

TECUM: by Motion if:
(a) Court before whom the witness is required to
attend; (1) Unreasonable and oppressive;
(b) The court of the place where the deposition is to be (2) Relevancy of the books, documents or things does
taken; not appear;
(c) The officer or body authorized by law to do so in (3) The person whose behalf the subpoena is issued
connection with investigations conducted by said fails to advance the reasonable cost of the
officer or body, or production thereof.
(d) Any Justice of the SC or of the CA in any case or
investigation pending within the Philippines. GROUNDS TO QUASH A SUBPOENA AD
TESTIFICANDUM:
AD TESTIFICANDUM: There are certain requirements
92
must be met: (1) The witness is not bound thereby (SEC. 10 );
(2) The witness fees and kilometrage allowed by the
 SUBPOENA TO A PRISONER (detention and by Rules were not tendered when the subpoena was
final judgment): judge or officer to determine served.
whether the same is made for a valid purpose.
 Prisoners by final judgment AND even In either case, may be QUASHED: when the witness fees
detention prisoner. and kilometrage allowed by these rules were not tendered
 PRISONER SENTENCED TO AFFLICTIVE when the subpoena is served.
PENALTIES: unless authorized by the SC.
SEC. 5: FOR DEPOSITIONS: When will the Clerk of Court
SEC. 3: FORM AND CONTENTS: of the place where it shall be taken issue it for purposes of
 Subpoena shall:
(1) State the name of the court and the title of
the action or investigation; 91
When it has the tendency with a reasonable degree to prove the
(2) Directed to the person whose attendance is existence or non-existence of the fact in issue.
required; and 92
(1) Who resides more than 100 kilometers from his residence to the
(3) In case of DUCES TECUM: reasonable place where he is to testify and (2) a detention prisoner, if no
description of the books, documents or permission of the court; secure the authority of the other court where
the case of the detention prisoner is pending.
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the taking of the deposition? Present proof of service of

notice to take deposition. PEOPLE V. MONTEJO (1967): here is a policeman of
Montalban, Rizal, and went to Zamboanga City. There
 FOR DEPOSITION: just go to the Clerk of Court for was a vehicular accident and he was the witness to the
the issuance of subpoena. accident. There was a criminal case filed, and he was
 All that you need to show the clerk is proof of subpoena. He did not appear and upon show cause order,
service of notice to take deposition. he contended that it was too far away (more than 50KM,
 DUCES TECUM: must be authorized by the court; during that time).
not to be issued by the clerk alone.
 With an order of the court. o SC: only applies to civil cases, NOT to criminal
 There should be prior order of the court if it is cases.
duces tecum. o It was the People of the Philippines who subpoena-
ed him.
SEC. 6: SERVICE: same manner as PERSONAL / o Part of the police power of the state: involves taking.
SUBSTITUTED service of summons:
NOTE: Section 9, Rule 23, of the Rules of Court excusing
 Tendering fees for one day appearance and a witness from appearance before a court, judge, or other
kilometrage. officer of the province in which he resides, if the distance
 If issued by or on behalf of the Republic of the exceeds 50 kilometers from his place of residence to the
Philippines, or an agency thereof, the tender need place of trial by the usual course of travel, applies solely to
not be made. civil cases and not to criminal cases. Consequently, the
 To allow the witness reasonable time for travel and refusal by respondent Judge, to the case at bar, to grant
preparation. the prosecution's motion to arrest a material witness in a
 DUCES TECUM: reasonable cost of producing the criminal case, or in the alternative, to cite him for
books, documents or things demanded shall also contempt, amounted to grave abuse of discretion.
be tendered.
 If there is no payment: ground for quashal.
SEC. 7: PERSONAL APPEARANCE IN COURT:

RULE 22: COMPUTATION OF TIME
 A person present in court or officer may be required
to testify as if he were in attendance upon a
subpoena issued by such court or officer. RULE 22: COMPUTATION OF TIME:
 Kapag ayaw mo mag-testify, under pain of
contempt. SEC. 1: HOW TO COMPUTE: the day the period of time
begins to run (i.e. from notice) is to be EXCLUDED and
SEC. 8 and 9: SANCTIONS FOR FAILURE TO ATTEND:
the date of performance INCLUDED (first day excluded,
may issue a warrant to arrest the witness and bring him
last day included).
before the court or officer where his attendance is
required, upon proof of service of the subpoena.
 As in civil law: first day is excluded, the last day
included.
 The cost shall be paid by the witness if his failure to
 If the last day falls on Saturday, Sunday, or a legal
appear was willful and without just excuse.
holiday in the place where the court sits → the last
 To determine if his failure to answer was willful and
day is the NEXT WORKING DAY.
without just cause.
 If the last day to comply is a weekend or a
 CONTEMPT: failure of the person without adequate
holiday, dagdag „yan sa iyo → the last day is
cause.
the next working day.
 If not issued by the court: shall be punished
in accordance with the applicable law or SEC. 2: EFFECT OF INTERRUPTION: the allowable
Rule.
period after such interruption shall start to run on the day
 GENERALLY: it is only the court which can
after notice of the cessation of the cause thereof.
declare one in contempt.
 Congress also, perhaps, in their Rules?
 If you receive the summons today, do not count
today but count the last day.
SEC. 10: EXCEPTIONS: when may one not be arrested or
 The same as when the period was
declared in contempt?
interrupted.
 Example: if you file a MTD or MBOP, it will
(1) If he resides more than 100 kilometers from his
stop the running of the period within which to
residence to the place where he is to testify by
answer. When will you now respond?
ordinary course of travel.
 Upon receipt of the notice denying
 Assumption: from 50KM to 100KM, and road
your MTD, aandar na ulit siya, but
are better than before.
again, the first day when you receive
(2) Detention prisoner, if no permission of the court is
the order denying the MTD, you do
obtained.
not count that also.
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 As you have the balance, but no less This Rule until Rule 29 refer to the Modes of Discovery.
than 5 days.
 If you count the day you receive it, Subpoena is for the purpose of evidence.
tamang tama sa 15 days, but if you go If you seek subpoena, for instance, duces tecum, you
by the Rules and not count the first must specify the documents and there must be showing of
day, sosobra ka sa araw. relevant facts.
 For BOP: when do you respond? 93
(1) If denied: Answer from the date As we have learned in Subpoena under Rule 21, one of
of the notice of the denial of the the grounds to quash a subpoena duces tecum is where
BOP.
(2) If granted: from service of the
notice of the BOP.
th
 Example: if on the 10 day, it was interrupted, then 93
Subpoena
th
you are notified, but the 11 day is not counted eh. Section 1. Subpoena and subpoena duces tecum. — Subpoena is a
 Since you do not count the day that you process directed to a person requiring him to attend and to testify at
receive the denied of the motion, because the hearing or the trial of an action, or at any investigation conducted
the first day is excluded, magiging 16 „yan by competent authority, or for the taking of his deposition. It may also
kapag kinompute mo, that is why under the require him to bring with him any books, documents, or other things
Rules, it shall start to run NOT ON, but under his control, in which case it is called a subpoena duces tecum.
AFTER notice. (1a, R23)
 The day of the act that caused the Section 2. By whom issued. — The subpoena may be issued by —
interrupted shall be EXCLUDED In the (a) the court before whom the witness is required to attend;
computation. (b) the court of the place where the deposition is to be taken;
(c) the officer or body authorized by law to do so in connection with
investigations conducted by said officer or body; or
NOTE: Does not apply if the purpose of the Motion is to
(d) any Justice of the Supreme Court or of the Court of Appeals in any
seek Extension of Time. case or investigation pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge or
officer shall examine and study carefully such application to determine
LUZ V. NATIONAL AMNESTY COMMISSION (2004): whether the same is made for a valid purpose.
accused was charged of illegal possession of firearms, No prisoner sentenced to death, reclusion perpetua or life
and he thereafter filed for amnesty. Such was denied. He imprisonment and who is confined in any penal institution shall be
appealed to the National Amnesty Commission, and they brought outside the said penal institution for appearance or attendance
denied the same. He appealed to the CA. The last days in any court unless authorized by the Supreme Court (2a, R23)
was [Sunday, Saturday, Holiday]. He sought another Section 3. Form and contents. — A subpoena shall state the name of
extension to file a petition for review. The initial motion the court and the title of the action or investigation, shall be directed to
was granted by the court. The second was denied, on the the person whose attendance is required, and in the case of a
ground that the motion was filed out of time, on the next subpoena duces tecum, it shall also contain a reasonable description of
the books, documents or things demanded which must appear to the
business day, lampas na. CA denied.
court prima facie relevant. (3a, R23)
Section 4. Quashing a subpoena. — The court may quash a
o Luz argued that his last day was a holiday, so he subpoena duces tecum upon motion promptly made and, in any event,
must file after the next business day. at or before the time specified therein if it is unreasonable and
o SC: does not apply if your motion is to extend your oppressive, or the relevancy of the books, documents or things does
period. not appear, or if the person in whose behalf the subpoena is issued fails
 It must be done PRIOR to the expiration of to advance the reasonable cost of the production thereof.
the period, even if the last day of the original The court may quash a subpoena ad testificandum on the ground that
period falls on a Saturday, Sunday or a the witness is not bound thereby. In either case, the subpoena may be
holiday. quashed on the ground that the witness fees and kilometrage allowed
 If it is the filing of a petition/answer, then you by these Rules were not tendered when the subpoena was served. (4a,
can file even after the end of the period, if the R23)
last day falls on a weekend or holiday. Section 5. Subpoena for depositions. — Proof of service of a notice to
o This involved the second sentence of SEC. 1. take a deposition, as provided in sections 15 and 25 of Rule 23, shall
constitute sufficient authorization for the issuance of subpoenas for the
NOTE: The extension granted by the Court of Appeals persons named in said notice by the clerk of the court of the place in
should be tacked to the original period and commences which the deposition is to be taken. The clerk shall not, however, issue
a subpoena duces tecum to any such person without an order of the
immediately after the expiration of such period. Under the
court. (5a, R23)
Resolution of this Court in A.M. No. 00-2-14-SC, the CA
Section 6. Service. — Service of a subpoena shall be made in the same
has no discretion to reckon the commencement of the manner as personal or substituted service of summons. The original
extension it granted from a date later than the expiration of shall be exhibited and a copy thereof delivered to the person on whom
such period, regardless of the fact that said due date is a it is served, tendering to him the fees for one day's attendance and the
Saturday, Sunday, or a legal holiday. kilometrage allowed by these Rules, except that, when a subpoena is
issued by or on behalf of the Republic of the Philippines or an officer or
agency thereof, the tender need not be made. The service must be
RULE 23 made so as to allow the witness a reasonable time for preparation and
Depositions Pending Action travel to the place of attendance. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or things
demanded shall also be tendered. (6a, R23)
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there is no prima facie showing that the document or 1844.) No court, it is needless to say, would punish a
papers to be subpoenaed are relevant. So, you must show witness for contempt in refusing to obey a
relevance. You cannot use subpoena for the purpose of subpoena duces tecum the issuance of which has been
fishing evidence. However, you can do that via MODES procured with such end in view.
OF DISCOVERY. Pwede ka mag-fish ng evidence. That
was the ruling in Liebenow vs. Philippine Vegetable Oil ***
(G.R. No. L-13463, November 9, 1918). You cannot do that because you are fishing for evidence.
You can do that, however, through modes of discovery.
LIEBENOW v. PHILIPPINE VEGETABLE OIL
G.R. No. L-13463, November 9, 1918 Let’s discuss the modes of discovery. Marami „yan.
Street, J.
The modes of discovery provided for under the Rules of
FACTS: Court are:
This is a case for the recovery of bonus in addition to 1) Deposition pending action (Rule 23);
plaintiff’s salary as defendant’s superintendent in the 2) Deposition before action or pending appeal (Rule
latter’s factory. He sought for a subpoena duces tecum for 24);
the production of the entire accounting documents. Under 3) Interrogatories to Parties (Rule 25);
their contract, plaintiff alleged that he was entitled to 4) Admission by adverse party (Rule 26);
bonus (if there is income). He was not given the bonus. In 5) Production or inspection of documents of things
order to determine that there was income, therefore (Rule 27); and
entitling him to the bonus, what he did was to cause the 6) Physical and mental examination of persons
issuance of a subpoena duces tecum for the production of (Rule 28).
all books of accounts, records, etc. in the custody of the
company’s accountant without specifying the documents. Let’s go to the first: Depositions pending action.
The said subpoena was vacated by the court on motion of
the defendant on the ground that the evidence sought Q: What is deposition?
thereby was irrelevant to the issue involved in the case. A: Deposition is a written testimony of a witness given in
the course of a judicial proceeding, in advance of the trial
ISSUE: WON the trial court is correct in quashing or or hearing, upon oral examination, or in response to
denying the subpoena. written interrogarities, and where an opportunity is given
for cross-examination.
HELD: Correct.
So, you can now better understand this in relation to
In determining whether the production of the evidence.
documents described in a subpoena duces tecum should
be enforced by the court, it is proper to consider, first, Deposition and affidavit, distinguished
whether the subpoena calls for the production of specific
documents, or rather for specific proof, and secondly, AFFIDAVIT DEPOSITION
whether that proof is prima facie sufficiently relevant to An ex-parte statement Dito, meron, kaya you can
justify enforcing its production. A general inquisitorial drawn up in writing without have this admitted in
examination of all the books, papers, and documents formal interrogation and evidence.
of an adversary, conducted with a view to ascertain without opportunity to be However, hindi lang basta
whether something of value may not show up, will not cross-examined you can have this admitted
be enforced. (Street, Federal Equity Practice, vol. 2, sec. in evidence. May mga
conditions.
Section 7. Personal appearance in court. — A person present in court
before a judicial officer may be required to testify as if he were in Q: When may a deposition be taken?
attendance upon a subpoena is sued by such court or officer. (10, R23) A:
Section 8. Compelling attendance. — In case of failure of a witness to SEC. 1. Depositions pending action, when may be
attend, the court or judge issuing the subpoena, upon proof of the taken.
service thereof and of the failure of the witness, may issue a warrant to By leave of court after jurisdiction has been obtained over
the sheriff of the province, or his deputy, to arrest the witness and any defendant or over property which is the subject of the
bring him before the court or officer where his attendance is required,
action, or without such leave after an answer has been
and the cost of such warrant and seizure of such witness shall be paid
served, the testimony of any person, whether a party or
by the witness if the court issuing it shall determine that his failure to
not, may be taken, at the instance of any party, by
answer the subpoena was willful and without just excuse. (11, R23)
Section 9. Contempt. — Failure by any person without adequate cause deposition upon oral examination or written
to obey a subpoena served upon him shall be deemed a contempt of interrogatories. The attendance of witnesses may be
the court from which the subpoena is issued. If the subpoena was not compelled by the use of a subpoena as provided in Rule
issued by a court, the disobedience thereto shall be punished in 21. Depositions shall be taken only in accordance with
accordance with the applicable law or Rule. (12a R23) these Rules. The deposition of a person confined in prison
Section 10. Exceptions. — The provisions of sections 8 and 9 of this Rule may be taken only by leave of court on such terms as the
shall not apply to a witness who resides more than one hundred (100) court prescribes.
kilometers from his residence to the place where he is to testify by the
ordinary course of travel, or to a detention prisoner if no permission of By leave of court after jurisdiction has been obtained
the court in which his case is pending was obtained. (9a, R23) over any defendant or over property which is the subject of
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the action, or without such leave after an answer has kasi dapat may cross-examination. „Yun ang ipakita mo sa
been served. clerk of court, na may notice ka na. Therefore, the court
will now issue a subpoena to the deponent. Subpoena to
Q: ‗Eh papano ‗yan anong gagawin mo kapag walang the deponent if you have already given notice to your
leave of court? kalaban.
A: You just inform the other party. Sulatan mo, ―Dear
kalaban, I wish to inform you that pursuant to Sec. 1, Rule Q: Where do you secure the subpoena?
23, the depositions of the following persons will be taken.‖ A: The rule is, you get it with the clerk of court of the
Bahala siya magpa-quash. Without leave na „yan ah. place in which the deposition is to be taken.
For example, the case is pending in a court in Angeles
―The deposition of a person confined in prison may be City. However, the deponent who will be examined, upon
taken only by leave of court on such terms as the oral examination, is in Tarlac or in San Fernando. You
court prescribes.‖ secure the subpoena in Tarlac or in San Fernando for the
purpose of taking the deposition.
Basta kapag nakakulong, always by leave of court,
whether there is an answer or not. However, take note, the clerk shall not, however, issue a
subpoena deuces tecum to such person without an order
―By deposition upon oral examination or written of the court. Ibang isapan „yan.
interrogatories‖
Q: In other words, if it is just subpoena ad
So, there are two modes: testificandum (just an oral examination of the
1) Oral examination deponent), may the clerk of court issue the subpoena
2) Written interrogatories unilaterally?
A: Yes. Pero kapag duces tecum, dapat may court order.
―The attendance of witnesses may be compelled by
the use of a subpoena as provided in Rule 21.‖ NOTE: That is just the technical aspect. But please read
the Rules carefully. You might use this when you become
We go back to Rule 21. lawyers.
Kung ikaw nagpapa-subpoena ng isang witness for the Q: Who may take a deposition and whose deposition
taking of deposition, you apply. may be taken?
A: Any party to an action may take the deposition of any
Q: How do you do that? person (Sec. 15, Rule 23).
94
A: Sec. 5, Rule 21 A party desiring to take the deposition of any person upon
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SEC. 5. Subpoena for depositions. written interrogatories (Sec. 25, Rule 23).
Proof of service of a notice to take a deposition, as
provided in sections 15 and 25 of Rule 23, shall constitute Q: Whose deposition may be taken?
sufficient authorization for the issuance of subpoenas A: Any person.
for the persons named in said notice by the clerk of the
court of the place in which the deposition is to be taken. Q: How? What are the modes of deposition taking?
The clerk shall not, however, issue a subpoena duces
tecum to any such person without an order of the court.
(5a, R23)
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Section 15. Deposition upon oral examination; notice; time and place.
Q: What is this notice under Sec. 5, Rule 21? — A party desiring to take the deposition of any person upon oral
A: Notice to take deposition under Sec. 15. examination shall give reasonable notice in writing, to every other party
to the action. The notice shall state the time and place for taking the
Let’s go to Sec. 15 of Rule 23. deposition and the name and address of each person to be examined, if
known, and if the name is not known, a general description sufficient to
SEC. 15. Deposition upon oral examination; notice; time identify him or the particular class or group to which he belongs. On
motion of any party upon whom the notice is served, the court may for
and place.
cause shown enlarge or shorten the time. (15, R24)
A party desiring to take the deposition of any person upon
oral examination shall give reasonable notice in writing, 95
Section 25. Deposition upon written interrogatories; service of notice
to every other party to the action. The notice shall state and of interrogatories. — A party desiring to take the deposition of
the time and place for taking the deposition and the any person upon written interrogatories shall serve them upon every
name and address of each person to be examined, if other party with a notice stating the name and address of the person
known, and if the name is not known, a general who is to answer them and the name or descriptive title and address of
description sufficient to identify him or the particular class the officer before whom the deposition is to be taken. Within ten (10)
or group to which he belongs. On motion of any party days thereafter, a party so served may serve cross-interrogatories upon
upon whom the notice is served, the court may for the party proposing to take the deposition. Within five (5) days
cause shown enlarge or shorten the time. (15, R24) thereafter, the latter may serve re-direct interrogatories upon a party
who has served cross-interrogatories. Within three (3) days after being
served with re-direct interrogatories, a party may serve recross-
In other words, when you desire to take the deposition of a
interrogatories upon the party proposing to take the deposition. (25,
particular person upon oral examination, you give notice in
R24)
writing to every other person to the action – kalaban mo,
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A: Oral examination (Sec. 15, Rule 23) or written A: The deponent may be examined, as a general rule,
interrogatories (Sec. 25, Rule 23) regarding any matter any matter relating to the claim or
defense of any other party, subject to the following
Q: What is the scope of the deposition taking? conditions:
A: 1) The deponent may not be examined on any
SEC. 2. Scope of examination. matter which is privileged.
Unless otherwise ordered by the court as provided by  Husband-wife privilege, physician-
section 16 or 18 of this Rule, the deponent may be patient privilege, priest-penitent privilege
examined regarding any matter, not privileged, which is  Suppose you are the kalaban, kukunin
relevant to the subject of the pending action, whether mo ang deposition ng asawa? Hay, „edi
relating to the claim or defense of any other party, it will violate the marital privilege.
including the existence, description, nature, custody,
condition, and location of any books, documents, or other 2) The deponent may only be examined regarding
tangible things and the identity and location of persons any matter which is relevant to the subject matter
having knowledge of relevant facts. (2, R24) of the pending action.
3) The court may issue such orders to protect the
In short, a deponent may be examined relating to any parties or the deponents or limit the examination
matter relating to the claim or defense of any party to the pursuant to Section 16 and 18.
action, subject to certain limitations.
SEC. 3. Examination and cross-examination.
Q: What are these limitations? Examination and cross-examination of deponents may
A: proceed as permitted at the trial under sections 3 to 18 of
96 97
1) Sections 16 and 18 of Rule 23; Rule 132. (3a, R24)
2) Any matter not privileged;
3) relevant to the subject of the pending action, Q: In what instances may a deposition be used?
whether relating to the claim or defense of any A:
other party. SEC. 4. Use of depositions.
At the trial or upon the hearing of a motion or an
Q: Therefore, what is the scope of deposition taking? interlocutory proceeding, any part or all of a deposition,
so far as admissible under the rules of evidence, may be
used against any party who was present or represented at
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Section 16. Orders for the protection of parties and deponents. —
the taking of the deposition or who had due notice thereof, in
After notice is served for taking a deposition by oral examination, upon accordance with any one of the following provisions;
motion seasonably made by any party or by the person to be examined xxx
and for good cause shown, the court in which the action is pending may
make an order that the deposition shall not be taken, or that it may be In other words, a deposition of any party may be used:
taken only at some designated place other than that stated in the 1) At the trial;
notice, or that it may be taken only on written interrogatories, or that 2) Upon the hearing of a motion; or
certain matters shall not be inquired into, or that the scope of the 3) Upon the hearing of an interlocutory proceeding.
examination shall be held with no one present except the parties to the
action and their officers or counsel, or that after being sealed the ―so far as admissible under the rules of evidence‖
deposition shall be opened only by order of the court, or that secret So the use of depositions is subject to the use of
processes, developments, or research need not be disclosed, or that evidence.
the parties shall simultaneously file specified documents or information
enclosed in sealed envelopes to be opened as directed by the court or
Q: What are the two basic foundation of admissibility
the court may make any other order which justice requires to protect
of evidence?
the party or witness from annoyance, embarrassment, or oppression.
(16a, R24)
A: relevancy and competency
―may be used against any party who was present or
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Section 18. Motion to terminate or limit examination. — At any time represented at the taking of the deposition or who had
during the taking of the deposition, on motion or petition of any party due notice thereof, in accordance with any one of the
or of the deponent, and upon a showing that the examination is being following provisions‖
conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the deponent or party, the court in which the Take note, it may be used against any party who was
action is pending or the Regional Trial Court of the place where the present, ito na sa due process. Or if he is not present,
deposition is being taken may order the officer conducting the represented at the taking of deposition, or hindi siya
examination to cease forthwith from taking the deposition, or may limit present – who had no notice thereof.
the scope and manner of the taking of the deposition, as provided in
section 16 of this Rule. If the order made terminates the examination, it Due process does not require that you are actually heard;
shall be resumed thereafter only upon the order of the court in which all it requires is that you were given the opportunity to be
the action is pending. Upon demand of the objecting party or heard.
deponent, the taking of the deposition shall be suspended for the time
necessary to make a notice for an order. In granting or refusing such
In one case, Veran vs. CA. 137 Scra
order, the court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may deem
reasonable. (18a, R24) This is a decision of the SC reversing the judgment of the
CFI. The CA declared Primitiva Villareal the owner of the
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lot where the house stood. The basis of the appellate infirmity, or imprisonment, or (4) that the
court’s decision is the deposition of the witness Apolonia party offering the deposition has been unable
Glodoveza, which deposition was rejected by the trial to procure the attendance of the witness by
court for lack of cross examination by counsel for the subpoena; or (5) upon application and notice,
plaintiffs. But the CA admitted it. When it reached the SC, that such exceptional circumstances exist as
the latter sustained the ruling of the CA stating: to make it desirable, in the interest of justice
As pointed out by the Court of Appeals, and with due regard to the importance of
counsel for the plaintiff had been notified presenting the testimony of witnesses orally
sufficiently in advance of the deposition in open court, to allow the deposition to be
taking. His opposition to the taking was not used; and
favorably acted upon by the court before the
date of the taking of the deposition. If he Q: When may you present a deposition in evidence?
failed to appear on that date, he did so at his A: When the court finds:
own risk. 1) that the witness is dead;
2) that the witness resides at a distance more than
Q: Why? one hundred (100) kilometers from the place of
A: Again, because due process does not necessarily trial or hearing, or is out of the Philippines, unless
mean that you are heard. All that is required is the it appears that his absence was procured by the
opportunity to be heard. party offering the deposition, or
3) that the witness is unable to attend or testify
So, against whom may a deposition be taken? because of age, sickness, infirmity, or
imprisonment, or
Q: How may a deposition be used? 4) that the party offering the deposition has been
A: unable to procure the attendance of the witness
(a) Any deposition may be used by any party for the by subpoena; or
purpose of contradicting or impeaching the 5) upon application and notice, that such
testimony of deponent as a witness; exceptional circumstances exist as to make it
desirable, in the interest of justice and with due
Recall that there are three ways to impeach a witness. regard to the importance of presenting the
One of them is by making a prior, inconsistent statement. testimony of witnesses orally in open court, to
allow the deposition to be used.
Q: What is the procedure there?
A: Confront him – time and place, persons present, after In other words, you cannot simply present deposition in
he made the statement, let him explain it. That is laying evidence.
the predicate.
GENERAL RULE: You cannot present only the deposition
So any deposition may be used to contradict or impeach a of a witness in court. You have to present him.
deponent or a witness. EXCEPTION: You can present his deposition in lieu of
presenting the testimony of the witness in court if any of
(b) The deposition of a party or of any one who at the aforementioned instances is present.
the time of taking the deposition was an officer,  This is similar to a subpoena. One of the grounds
director, or managing agent of a public or private to refuse compliance with a subpoena ad
corporation, partnership, or association which is testificandum is when you are 100 km away by
a party may be used by an adverse party for ordinary course of travel, in which case, instead
any purpose; of you testifying in court, mag-deposition nalang.
Then, your deposition is already the evidence.
So, it is used not only to show prior inconsistent Q: But, if for instance, kinuha ang deposition mo,
statement, but also to prove contrary evidence – any hindi ka pa. Comes the trial, dapat ba i-present ka ulit?
purpose. A: Yes. The rule is, you must be presented in court as a
witness, notwithstanding that you already made a
Q: What is the condition here? deposition. Pero kung patay ka na, you ask the court now,
A: Provided that the deponent is an adverse party or an offer the deposition in evidence.
officer, director, or managing agent of an adverse party.
Q: When you take a deposition of a person, does that
(c) The deposition of a witness, whether or not a mean that he is already your witness?
party, may be used by any party for any purpose A: No.
if the court finds: (1) that the witness is dead,
or (2) that the witness resides at a distance (d) If only part of a deposition is offered in
more than one hundred (100) kilometers from evidence by a party, the adverse party may
the place of trial or hearing, or is out of the require him to introduce all of it which is relevant
Philippines, unless it appears that his absence to the part introduced, and any party may
was procured by the party offering the introduce any other parts. (4a, R24)
deposition, or (3) that the witness is unable to
attend or testify because of age, sickness,
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As we have discussed under Rule 132, when you present SEC. 6. Objections to admissibility.
one party, the other party also has the right to offer the Subject to the provisions of Section 29 of this Rule,
other party. Baka tinatago mo „yun. objection may be made at the trial or hearing, to
receiving in evidence any deposition or part thereof for any
Q: What is the effect of substitution upon the right to reason which would require the exclusion of the
use deposition previously taken? evidence if the witness were then present and
A: testifying (6, R24)
SEC. 5. Effect of substitution of parties. — Substitution
of parties does not affect the right to use depositions Q: What is Sec. 29 of Rule 132?
previously taken; and, when an action has been dismissed A:
and another action involving the same subject is afterward Sec. 29. Effect of errors and irregularities in depositions.
brought between the same parties or their representatives —
or successors in interest, all depositions lawfully taken and (a) As to notice. — All errors and irregularities in the
duly filed in the former action may be used in the latter as notice for taking a deposition are waived unless
if originally taken therefor. (5, R24) written objection is promptly served upon the
party giving the notice.
Q: When may substitution come in? (b) As to disqualification of officer. — Objection to
A: Substitution can come: taking a deposition because of disqualification of
1) When one of the parties to the case dies. the officer before whom it is to be taken is waived
98
o Under Sec. 16, Rule 3, a deceased unless made before the taking of the deposition
party, upon notice of his counsel of the begins or as soon thereafter as the
fact of death and the names and disqualification becomes known or could be
residences of the representatives of the discovered with reasonable diligence.
deceased, the court shall issue an order (c) As to competency or relevancy of evidence. —
to the representative or representatives Objections to the competency of witness or the
to appear within 30 days to be competency, relevancy, or materiality of
substituted. testimony are not waived by failure to make them
before or during the taking of the deposition,
2) When there is transfer of interest pendente lite. unless the ground, of the objection is one which
o Binenta mo „yung lupa which is the might have been obviated or removed if
subject of litigation. presented at that time.
(d) As to oral examination and other particulars. —
3) When an action has been dismissed, and another Errors and irregularities occurring at the oral
action involving the same subject matter is examination in the manner of taking the
afterwards brought between the same parties or deposition in the form of the questions or
their representatives or their successors in answers, in the oath or affirmation, or in the
interest, all depositions taken and duly filed in the conduct of the parties and errors of any kind
former action may be used in the subsequent which might be obviated, removed, or cured if
action as the originally taken in the second promptly prosecuted, are waived unless
action. reasonable objection thereto is made at the
taking of the deposition.
Q: When may objection to the admissibility be made? (e) As to form of written interrogatories. —
A: Objections to the form of written interrogatories
submitted under sections 25 and 26 of this Rule
are waived unless served in writing upon the
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Section 16. Death of party; duty of counsel. — Whenever a party to a party propounding them within the time allowed
pending action dies, and the claim is not thereby extinguished, it shall for serving succeeding cross or other
be the duty of his counsel to inform the court within thirty (30) days interrogatories and within three (3) days after
after such death of the fact thereof, and to give the name and address service of the last interrogatories authorized.
of his legal representative or representatives. Failure of counsel to (f) As to manner of preparation. — Errors and
comply with his duty shall be a ground for disciplinary action. irregularities in the manner in which the testimony
The heirs of the deceased may be allowed to be substituted for the
is transcribed or the deposition is prepared,
deceased, without requiring the appointment of an executor or
signed, certified, sealed, indorsed, transmitted,
administrator and the court may appoint a guardian ad litem for the
minor heirs.
filed, or otherwise dealt with by the officer under
The court shall forthwith order said legal representative or sections 17, 19, 20 and 26 of this Rule are
representatives to appear and be substituted within a period of thirty waived unless a motion to suppress the
(30) days from notice. deposition or some part thereof is made with
If no legal representative is named by the counsel for the deceased reasonable promptness after such defect is, or
party, or if the one so named shall fail to appear within the specified with due diligence might have been, ascertained.
period, the court may order the opposing party, within a specified time (29a, R24)
to procure the appointment of an executor or administrator for the
estate of the deceased and the latter shall immediately appear for and Objections to the admissibility of a deposition may be
on behalf of the deceased. The court charges in procuring such made at the trial or hearing, to receiving in evidence any
appointment, if defrayed by the opposing party, may be recovered as deposition or part thereof for any reason which would
costs. (16a, 17a) require the exclusion of the evidence if the witness
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were then present and testifying, except errors or party of a deposition as described in par. (b) of Section 4
irregularities of any kind which might have been obviated, of this Rule.
cured or presented, if promptly presented are waived.
Q: Before whom may a deposition be taken in the
You go by the Rules on Evidence. Philippines?
Q: Ano ba ang objection sa Rules on Evidence? A:
A: Once the objectionable nature of the evidence
becomes apparent, you object immediately. If you don’t, Q: Before whom may a deposition be taken in foreign
waived. Ganun „din dito, except errors or irregularities of countries?
any kind which might have been obviated, cured or A: Sec. 11
removed, if promptly presented, unless reasonable
objections thereto are made at the taking of deposition. Sec. 12. Commission or letters rogatory
A commission or letters rogatory shall be issued only hen
For instance, irrelevant, you object. Incompetent, you
object. If you do not object, waived. Q: Who may not be a deposition officer?
A: Sec. 13.
Q: What is the effect upon a deponent of the taking of No deposition shall be taken before a person who is a
his deposition? relative within the sixth degree of consanguinity or affinity,
A: or employee or counsel of any of the parties; or who is a
relative within the same degree, or employee of such
Q: When you take the deposition of a person, do you counsel; or who is financially interested in the action.
make him already your witness?
A: No. Hindi mo pa nga nape-present „eh. Q: What orders may the court issue for the protection of
the parties and deponent.
SEC. 7. Effect of taking deposition.
A party shall not be deemed to make a person his own Section 17. Record of examination; oath; objections.
witness for any purpose by taking his deposition.
Q: what shall be recorded?
A:
The mere taking of a deposition of a person does not
1) All objections made at the time of the
mean that you are already making him your witness.
examination to the qualifications of the officer
taking the depositin, or to the manner of taking it,
Q: Why?
or to the evidence presented. Go to Sec. 29.
A: Baka hindi favorable sa‟yo.
2) Ojbections to the conduct of any party;
3) Any other objection to the proceedings.
Remember, modes of discovery provide for ways by which
you can fish evidence. „Eh kung wala kang makuha? Wala
The deposition officer, generally, cannot rule on the
naman pala. Bakit mo ipe-present?
admissibility.
Q: What is the effect upon the deponent of the USE of
Q: What shall the deposition officer do after the deposition
his deposition?
of the testimony is taken?
A:
A: Sec. 19 and 20.
SEC. 8: Effect of using depositions. 1) The deposition shall be submitted to the witness
The introduction in evidence of the deposition or any part for examination;
thereof for any purpose other than that of contradicting or 2) Shall be read to or by him, unless such
impeaching the deponent makes the deponent the witness examination and reading are waived by the
of any party introducing the deposition, but this shall not witness and by the parties.
apply to the use by an adverse party of a deposition as
described in paragraph (b) of Section 4 of this Rule. Sec. 20. Certification and filing by officer.
The officer shall certify on the deposition that the witness
Q: What is paragraph (b)? was duly sworn to by him and that the deposition is a true
A: Basta kalaban ka pwede mo gamitin for any purpose. record of the testimony given by the witness. He shall then
1:05 securely seal the deposition in an envelope indorsed with
the title of the action and marked.
Q: Why? That is the mechanical aspect.

A: Baka hindi favorable sayo.
Sec. 21. Notice of filing.
Q: What is the effect of the use? The officer taking the deposition shall give prompt notice
A: Sec. 8. The introduction in evidence of the deposition or of its filing to all the parties.
any part thereof for any purpose other than that of
contradicting or impeaching the deponent makes the Sec. 22. Furnishing copies.
deponent the witness of the party introducing the Upon payment of reasonable charges therefor, the officer
deposition, but this shall not aply to the use by an adverse shall furnish a copy of the deposition to any party or to the
dependent.
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Sec. 23. Failure to attend of party giving notice.  No longer followed.

If the party giving the notice of the taking of a deposition
fails to attend and proceed therewith and another attends SECS. 3 and 4: GROUNDS FOR POSTPONEMENT:
in person or by counsel pursuant to the notice, he court
may order the party giving the notice to pay such other (1) ABSENCE OF EVIDENCE: REQUISITES:
party the amount of the reasonable expenses incurred by a. Upon affidavit, showing the materiality or
him and his counsel in so attending including reasonable relevancy of such evidence;
attorney’s fees. b. Due diligence has been used to procure it.
(2) ILLNESS OF A PARTY OR COUNSEL:
Sec. 25. Deposition upon written interrogatories; service of REQUISITES:
notice and of interrogatories. a. Upon affidavit or sworn certification that the
presence of such party or counsel at the trial
Sec. 29. Effect of errors and irregularities in depositions. is indispensable; and
 From the doctor.
As to form of written interrogatories. b. That the character of his illness is such as to
render his non-attendance excusable.
Q: What are the periods again?
A: 10 days, then 5 days SEC. 5: ORDER OF TRIAL: trial shall be limited to the
issues stated in the Pre-Trial Order.
Rule 134. Perpetuation of the testimony
 REASON: if the issue is not stated therein, and you
present evidence on that, the counsel of the
OCTOBER 3, 2016 adverse party will be objecting.
 Plaintiff will adduce evidence in chief in support of
his complaint.
 Then he will rest his case.
RULE 30: TRIAL
 Then, the defendant will adduce evidence in chief in
support of its defense, counterclaim, third-party
complaint.
TRIAL: an examination before a competent court or  Then, the third-party defendant will present
tribunal of the facts or law put on issue. evidence, and so forth.
 The parties then may reduce rebuttal evidence
 PURPOSE: to determine such issue. only, unless the court for good reason and in
furtherance of justice permits them to adduce
SEC. 1: When is trial conducted? Usually after the Pre- evidence in chief.
Trial.  Then, the case is submitted for decision.
 UNLESS the court orders the parties to submit their
 In the Pre-Trial now, in the Preliminary Conference, respective memoranda or nay further pleadings.
where the parties submit whatever they will present  After the parties have formally offered their
during the trial. evidence, and he court has ruled on the
 There would be marking of exhibits, admissibility of evidence, then the case shall be
comparison of the original with the submitted to decision.
photocopies.  WHY NECESSARY TO DETERMINE WHEN
 Other than that, the parties will identify the DEEMED SUBMITTED: to comply with the
witnesses. Constitution, that for:
 Also, the issues are limited, and the (1) Trial Courts: they shall decide within 90 days
evidence that the parties will present are from the time the case was submitted for
related to the issue involved. decision.
 Then the parties will also submit the names (2) Appellate Courts: shall decide within 1 year.
of their witnesses and their testimonies. (3) Supreme Court: 2 years.
 In fact, during the PT, the parties are already
required to submit the direct testimonies of GENERAL RULE: upon admission of evidence, then that
the parties, in compliance with the Judicial is the time that the case is deemed submitted for decision.
Affidavit Rule.
 One of the matters are required for the  Mag-start „yung counting of 90 days.
parties is to open their case, and the court  UNLESS the parties are directed to orally argue or
shall determine what remains controverted. submit their respective memoranda.
 Upon entry of the case in the trial calendar: during
the PT, the dates will already be fixed. Usually, the plaintiff will go first, then defendant, third-party
 As to how many minutes will be consumed defendant, then rebuttal.
per witness, and the trial dates shall be fixed.
 MANNER: ensure receipt 5 days from such date.  HOWEVER, there is REVERSE ORDER OF TRIAL
(the same as in Criminal Cases): where the
SEC. 2: ADJOURNMENT and POSTPONEMENT: from defendant admits, although raising a special
day to day. defense.
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us has a special defense, the court may order

separate trial.
YU V. MAPAYO (1972): plaintiff filed an action for  Iba iba kasi ang defenses.
collection of P2,800 representing unpaid balance of the
purchase price of an engine. In his Answer, the defendant
admitted the allegation set forth in the Complaint. But he RULE 32: TRIAL BY COMMISSIONER
put up the defense that the machine had a hidden defect
and that he was forced to spend P2,800 for the repairs.
Before, when the case was appealed in the CFI, maging
trial de novo noon. At the trial, the CFI ordered the Can either be:
defendant to produce evidence. The plaintiff counsel
requested that the defendant shall be made to present (1) By consent of the parties (SEC. 1): by written
evidence first, while plaintiff reserved his right to present consent of both parties.
rebuttal evidence. The court denied the motion and (2) Without consent of the parties (SEC. 2): reference
dismissed the case on the ground that there was failure to ordered on motion.
prosecute.  MEANING: no consent of both parties.
 Upon application of or of the motion itself of
o SC: Where the answer admits defendant's the court.
obligation as stated in the complaint, albeit special  Only for certain cases:
defenses are pleaded, plaintiff has every right to a. Examination of a long account;
insist that it is for defendant to come forward with b. Taking of an account is necessary for
evidence in support of his special defenses. carrying a judgment or order into
effect;
NOTE: Defendant not having supported his special c. Question of fact, other than upon the
defenses, the dismissal of the case for failure to prosecute pleading arises.
on the part of counsel for the plaintiff was manifestly
untenable and contrary to law. EXAMPLE: as when there is a question of interest, and for
how long already, and when there is compounded
interests.
 In a criminal case, that is the same.
 For instance, where the accused is charged  To determine how much.
with homicide, and the accused admits that
he killed the victim, but raises the special SEC. 3: ORDER OF REFERENCE: the order of reference
defense of complete self-defense, in which may specify or limit the powers of the commissioner:
case there will be a reverse trial.
 The prosecution will not present evidence as (1) To report only upon particular issues, or
the crime was already admitted. (2) To do or perform particular acts, or
 If it is already admitted, there is no need for trial. (3) To receive and report evidence only.
(4) May fix the date for beginning and closing the
hearings and for the filing of his report.
POWERS OF THE COMMISSIONER:

RULE 31: CONSOLIDATION OR SEVERANCE
(1) Exercise power to regulate the proceedings before
him;
SEC. 1: CONSOLIDATION: when actions involving (2) Issue subpoenas and subpoenas duces tecum;
common question of law or fact are pending before the (3) Swear witnesses (administer oaths); and
court. (4) Unless otherwise provided in the order of reference,
rule upon the admissibility of evidence;
 EXAMPLE: an action for quasi-delict, and the (5) Do all acts and take all measures necessary or
passengers sued the bus company, the court may proper for the efficient performance of his duties.
order its consolidation.
 Same facts; same law. HOW SHALL TRIAL BY COMMISSIONER PROCEED?
 If the passengers hired the same lawyer, Shall proceed in all respects as it would if held before the
then there is joinder of parties: pwede din court.
„yan.
SEC. 6: FAILURE OF PARTIES TO APPEAR.
SEC. 2: SEPARATE TRIAL: in furtherance of
convenience or to avoid prejudice. SEC. 7: REFUSAL OF WITNESS: it shall be the court who
shall declare the witness in contempt, not the
 Of any claim, issue. commissioner.
 EXAMPLE: if we are all landowners, the City of
Angeles field an expropriation case against us to SEC. 8: the commissioner may be asked to expedite the
convert our properties to a public market, of each of proceedings.
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SEC. 9: WHEN SHALL THE COMMISSIONER FILE HIS process has been satisfied, even if the court failed to set
REPORT? Upon the completion of the trial or hearing or the report for hearing, and a decision on the basis of such
proceedings before the commissioner. report, with the other evidence of the case, is a decision
which meets the requirement of a "fair and open hearing."
 WHAT SHALL IT CONTAIN? Upon the matters
submitted to him contained in the order of
reference. HOWEVER:
SEC. 10: after report: NOTICE OF THE
COMMISSIONERS REPORT given to the parties.
THE DE LA RAMA STEAMSHIP COMPANY V.
 Notified by the Clerk and they shall be allowed for NATIONAL DEVELOPMENT CORP. (1962): where the
10 DAYS within which to signify grounds of court designated a board of accountants to examine the
objections to the findings.
claims of the plaintiff against the defendant, and there was
 Objections not raised will not be considered by the
an understanding that the court will give the defendants
court. the opportunity to submit its objection to the amount stated
 In other words, the objections then available before in the report, and the decision of the court is based mostly
the hearing of the commissioner should be raised
on the findings and examination of the chairman, it is a
already.
clear violation of the right of the party to be heard, of the
 What may be raised during the hearing? Primarily due process clause of the Constitution, of the TC to render
on the findings and conclusion of the report. its decision without notifying the parties of the submission
 But on the procedural aspect, the court will
of the report and without setting a court hearing.
also consider that if you raise it during the
trial commissioner. NOTE: The action of the judge in rendering a decision
 In other words, there are two categories of without giving the defendant the opportunity to submit its
objections: objections to the amounts stated in the report of the
(1) On the findings and conclusions made
chairman of the board of accountants, is a violation of the
on the report;
right of a party to be heard and of the due process clause
(2) On the objection raised during the trial of the Constitution. It cannot be said that for failure of the
before the commissioner. defendant to present a motion for reconsideration, it
 What is the effect of lack of notice to the parties of
waived its right to be heard on the report, as there was no
the filing of the commissioner’s report? That is a
conduct on its part amounting to a waiver, because upon
violation of due process. the rendition of the decision, the appeal was promptly
presented, and the denial of the right to be heard on the
SEC. 11: then hearing.
said report was one of the errors assigned in the appeal.
Hence, the case should be remanded to the lower court so
 The court shall issue an order adopting, modifying, as to give the defendant the opportunity to submit its
or rejecting the report in whole or in part, or objections to the report.
recommitting it with instructions, or requiring the
parties to present further evidence before the
commissioner or the court.
 What matters shall the court consider? Is the commissioner’s findings binding upon the court? OF
COURSE NOT.
 The court is free to adopt, modify or reject, in whole

MANILA TRADING & SUPPLY V. PHIL. LABOR UNION
or in parts of the report, etc.
(1941): The court cannot be expected to rehear the case,
 EXCEPTION (SEC. 12): when the parties stipulate
but will review only insomuch as may be drawn in question that a commissioner’s findings of facts shall be
by proper objection. final, only questions of law shall be considered
thereafter.
o Although the parties were not notified of the filing of
 The court is bound by the findings of fact of
the commissioner’s report, and the court failed to the commissioner.
set the said report for hearing, if the parties who
appeared before the commissioner were duly SEC. 13: COMPENSATION OF COMMISSIONER.
represented by counsel and given the opportunity to
be heard, the requirement of due process has been
satisfied and a decision on the basis of such report
with the other evidence of the case, is a decision RULE 33: DEMURRER TO EVIDENCE
which meets the requirements of a fair and open
hearing.
NOTE: When the Court of Industrial Relations refers a SEC. 1: when may a defending party file a motion for
case to a commissioner for investigation, report and judgment on demurrer to the evidence? Only after the
recommendation, and at such investigation the parties plaintiff has completed the presentation of his evidence.
were duly represented by counsel, heard or the least given
an opportunity to be heard, the requirement of due  Same as in criminal cases.
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 A motion for judgment of demurrer to evidence may

only be presented by the defending party only when
RULE 34: JUDGMENT ON THE PLEADINGS
the plaintiff has rested its case / completed the
presentation of his evidence.
 So after the plaintiff has completed the presentation
of evidence, the defendant may move for the When may the court render judgment on the pleadings?
dismissal. TWO INSTANCES:
 GROUND: upon the facts and the law the
plaintiff has shown no right to relief. (1) Where the answer fails to tender an issue: when is
 On the basis of the evidence presented, he an answer deemed to have failed to tender an
has not proven his case. issue? When there is failure on the part of the
Answer to make a specific denial.
EFFECT IF THE MOTION IF DENIED: he shall have the  In other words, the denial is a general denial.
right to present evidence.  Effect when there is a general denial: facts
are deemed admitted, EXCEPT
 He shall not lose his right to present evidence. UNLIQUIDATED DAMAGES.
 EXCEPTION (last sentence): if the motion is  Must comply with the requirements of the
granted but on appeal the order of dismissal is Rules: take the basis of the denial.
reversed, he shall be deemed to have waived the  As when you have lack of knowledge:
right to present evidence. CANNOT be used if allegations of facts of
 REASON: the appellate court will render judgment the complaint are expected to be within the
on the basis of the evidence available on record, if knowledge of the defendant.
appealed.  If you still state lack of knowledge,
 Compare with Demurrer in Criminal Cases: that is still considered a general
 May be filed after the prosecution has rested denial, and a deemed admission.
its case.  REMEMBER: no specific denial, denial
 The court may dismiss the action on the considered as a general denial, defendant is
ground of insufficiency of evidence. deemed to have admitted the factual
 There are two ways to file a demurrer: if averments of the complaint.
motion is denied:  EXCEPT: unliquidated damages.
(1) WITH LEAVE OF COURT: the (2) When the Answer otherwise admits the material
accused has still the right to present allegations of the adverse party’s pleading: kung in-
evidence. admit, bakit ka pa magta-trial? Eh „di judgment na.
(2) WITHOUT LEAVE OF COURT: the  There is nothing left to the court but to
accused loses/waives his right to decide (CAPITAL MOTORS V. YABUT).
present evidence.
 Within what time should the demurrer be Judgment on the Pleadings may even be done after the
filed, if with leave? Within a non-extendible Pre-Trial.
period of FIVE (5) DAYS after the
prosecution has rested its case.  If the material facts ad allegations constituting his
 The prosecution may oppose the motion cause of action are admitted by the defendant,
within a non-extendible period of FIVE (5) there is no more left but to judge on the basis of the
DAYS from its receipt. pleadings of the parties.
 If with leave of court is GRANTED, TEN (10)  There would only be trial if there are controverted
DAYS from notice, and prosecution has the and actual issues.
same period from its receipt.  Where the issues are now admitted in the Answer,
 If DENIED, NOT reviewable by appeal or by there is no need to conduct a formal trial.
certiorari before judgment.  Otherwise, aksaya ng panahon.
 If demurrer to evidence in a criminal case is
GRANTED, may the prosecution appeal? EXCEPTION TO THE RULES ON JUDGMENT ON THE
NO, because that will constitute double PLEADINGS (last sentence): material facts alleged in the
jeopardy. complaint must be proved in actions for:
 In a civil case, if demurrer to evidence is
GRANTED, may the plaintiff appeal the order (1) Declaration of nullity or
granting the demurrer? YES. (2) Annulment of marriage or
 That is why there is a distinction between (3) For legal separation.
with and without leave in criminal cases,
because if they are granted, acquittal iyan. REASON: the family is the basic social institution.
 For civil cases, you can appeal it.
 That is why in a civil case, if the TC grants
demurrer, and on appeal it is reversed, then FALCASANTOS V. HOW SUY CHING (1952):
the defendant is deemed to have waived his 99
Falcansantos filed an action for legal redemption against
presentation of evidence.
 Those are the risks: as a lawyer, tantiyahin
mo iyan. 99
What is the nature of an action for legal redemption? It is an action
where a co-owner sells property without offering it first to his co-
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defendant, the administrator of the estate of the deceased

Tan Kiok. The complaint alleged that the property in APELARIO V. CHAVEZ (1961): plaintiff filed an action for
question belong to the undivided share of the siblings recovery of a sum of money, representing the price of
Falcansantos, including plaintiff herein. That one of the certain articles purchased by the defendants. In their
siblings sold her rights to Tan Kiok, although the sale has Answer, the defendants admitted their indebtedness and
not been registered. Plaintiff offered to redeem the same non-payment, but requested the plaintiff to waive as their
from Tan Kiok for P420, but the latter refused to resell. accounts receivable have not been collected.
The defendant answered, admitting all the allegations in
the complaint, that he knows the property is co-owned, it o Can a judgment of the pleadings be asked? YES.
was sold to him, and there was an offer to redeem by o How about the fact that they are asking plaintiff to
tendering payment and he refused to resell. But the waive? NEGATIVE PREGNANT.
defendant set up the defense that the redemption has  REASON: while you deny, it is pregnant with
been barred by art. 1524 of the Old Civil Code, because admissions.
"the plaintiff has had knowledge of sale since long before  It is no defense at all, as a debtor cannot
nine days prior to the filing of the complaint.‖ There was a delay payment due just to suit its
motion for judgment on the pleadings as the facts were convenience, and the creditor is not an
admitted. TC rendered judgment for the plaintiff, relying on underwriter of his debtor's business unless
the fact that the DOS was never registered, and there was so stipulated.
nothing on the record that plaintiff had knowledge or actual o The Answer in this case did not raise any material
knowledge of the sale since a certain particular date. issues.
o ISSUE: WON the TC was correct. NOTE: The defendants-appellants admitted all the
o SC: Judgment is REVERSED. material allegations of the complaint concerning the
o REASON: the starting date of the 9-day period is existence of the debt and its non-payment. The pleaded
either registration of sale or in the absence thereof, excuse, that they had requested plaintiff to wait because
knowledge of the conveyance of the co-owner. appellants' many accounts receivable had not yet been
o In this case, the defendant’s answer alleged that collected, is no defense, for a debtor can not delay
plaintiff had knowledge of the sale. payment due just to suit its convenience, and the creditor
o This allegation is deemed admitted by the plaintiff is not an underwriter of his debtor's business unless so
because it is a rule that one who prays for the stipulated. The denial of the averment concerning the
judgment on the pleadings, without offering stipulated fees of plaintiff's attorney tendered no genuine
proof as to the truth of his own allegations, and issue, for even without such allegation, it was discretionary
without giving the opposing party an in the court to allow reasonable attorney's fees by way of
opportunity to introduce evidence, must be damages, if it found it just and equitable to allow their
understood to admit the truth of all the material recovery (Civil Code, Article 2208). Nor does the denial of
and relevant allegations of the opposing party, the complaint's averments concerning the fraudulent
and to rest his motion for judgment upon those removal and disposition of defendant's property constitute
allegations taken together with such of his own as a bar to a judgment on the pleadings, since the defendant
are admitted in the pleadings. neither claimed nor asked for any damages on account of
o If a party moves for judgment on the pleadings, he the issuance and levy of the writ of attachment. Under the
also admits the material averments of the opposing circumstances, judgment of the pleadings was proper.
party’s claim, which taken together with his own, are
submitted to the court for judgment.
o Since in this case there was an allegation that the
plaintiff had knowledge, that is also admitted, as that
is in the Answer.
o That is why it is called judgment on the PLEADINGS LAKI V. BALMORES: defendant in his Answer alleged,
→ lahat. ―he denies the allegations contained in said complaint,‖
o RATIONALE: where the movant files judgment on without stating any basis thereof.
the pleadings, he does not only submit the case on
the basis of the admission of the opposing party of o SC: that is considered a general allegation.
his allegations in the complaint, but he is also o The defendant is deemed to have admitted the
deemed to have admitted the material averments material averments.
raised in the opposing party’s answer.
o The plaintiff has not offered proof as to the truth of NOTE: Cannot find the case.
his allegation, d the opposing party was not given
opportunity to introduce evidence on his defenses
→ so patas kayo.
o The allegation of the adverse party is also admitted.
CAPITOL MOTORS V. YABUT (1970): the allegations of
the complaint states that Yabut bought a car, that he
executed a PN, and in that PN he will pay the purchase
price in installments, with an acceleration clause, that
despite repeated demands, defendant failed to pay. In his
owners. If the seller-co-owner fails to give notice to his co-owners, then
Answer, the defendant denied all the allegations of the
the latter can exercise the right of legal redemption. The purpose of the
complaint, except his personal circumstance alleged in the
law is to terminate co-ownership.
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complaint, for lack of knowledge sufficient to form a belief (2) BY THE DEFENDANT (SEC. 2): at any time, even
as to the truth thereof. Plaintiff filed a motion for judgment before an answer has been filed.
in the pleadings. TC rendered judgment in favor of plaintiff.
Defendant questioned the decision, on the ground that SECS. 3 and 4: PROCEDURE: motion shall be served at
lack of knowledge is a form of specific denial. least TEN (10) DAYS before the hearing, as the other
party must have the opportunity to submit its affidavits.
o SC: NO; he was in the position to know those facts
alleged in the complaint.  Not just three-day notice rule.
o You invoke lack of knowledge in good faith → that  After hearing, the judgment shall be rendered if the
you are really not expected to have knowledge of pleadings, etc. show that there is no genuine issue
those facts. as to any material fact and that the movant is
entitled to a judgment as a matter of law, except as
to the amount of damages.
If there is only partial adjudication on motion (SEC. 4):

judgment is not rendered upon the whole case or for all
RULE 35: SUMMARY JUDGMENTS the reliefs sought and a trial is necessary.
 Ascertain material facts without substantial

SUMMARY JUDGMENT PROCEEDINGS: a method to controversy.
promptly dispose of actions in which there is no genuine
SEC. 5: REQUISITES OF SUPPORTING AND
issue as to any material fact.
OPPOSING AFFIDAVITS:
(1) Based on personal knowledge;

SUMMARY JUDGMENT JUDGMENT ON THE (2) It shall set forth the facts admissible in evidence;
PLEADINGS  Two rules of admissibility: relevance and
admissibility.
Proper if there is no Proper if there is no issue  There are those evidence relevant but not
genuine issue of fact. of fact at all, either admissible in evidence.
because:  Examples:
- There is an issue of (a) Confession or admission of an
fact, but it is not (1) The Answer admits the accused without him being informed
genuine as it does not averments of the of his Constitutional rights to remain
go into the very complaint; silent.
material allegations of (2) Where the Answer (b) If a search is made as an offshoot of a
fact constituting the does not tender an result of a warrantless arrest, the
opposing party’s claim. issue. evidence obtained, although relevant,
Rendered on the basis of Rendered on the basis of is not admissible in evidence, if the
facts appearing in the the admissions contained in search was not preceded by a lawful
pleadings, the affidavits, the pleadings and the warrantless arrest → fruit of the
depositions, admissions of attached documents poisonous tree.
facts. therein. (3) It shall show affirmative link that the affiant is
competent to testify on those facts; and
IN WHAT ACTIONS THE REMEDY OF SUMMARY  He is not feeble-minded.
JUDGMENT IS AVAILABLE: the Rules do not impose (4) Sworn or certified copies of the documents referred
any limitation as to the type of actions this remedy is to are attached.
available.
 In actions for annulment of marriage, etc., NOT PNB V. PHIL. LEATHER CO. (1959): PNB issued a letter
ALLOWED, as in the same manner as the remedy of credit to defendant, covering the value of certain
of judgment on the pleadings is now allowed. machineries. After the delivery of the machineries, plaintiff
presented to defendant for payment drafts, which the
WHEN PROPER: when the material facts are clear and defendant accepted. It its Answer, the defendant admitted
undisputed and there is no genuine issue of fact. the letters of credit, that the materials were delivered, that
the bank has paid to cover letter of credits; essentially
WHO MAY FILE: defendant admitted all the material averments of the
complaint, EXCEPT the correctness of the amount due on
(1) BY THE PLAINTIFF (SEC. 1): may at any time file the drafts, which defendants alleged that it was checking
after the pleading in answer thereto has been or verifying still. The bank filed for a motion for summary
served. judgment, attaching the affidavit of the manager of its
 Only after the pleading in answer to his claim special assets department, stating the particular payments
is served. made by the defendant and the remaining balance. TC
 A claimant may only file such motion after rendered summary judgment.
issues are joined: an Answer has been
served.
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o ISSUE: WON this case is a proper case for documents.

summary judgment.
o SC: YES because there is no more genuine issue
of material facts constituting the cause of action of
the plaintiff. VERGARA V. SUELTO (1987): Vergara filed a complaint
o What is left as a controverted factual issue is the for unlawful detainer alleging that he is the owner of a
amount / balance. commercial building consisting of three sections, separate
o But on the material facts: admitted, so there is no from those occupied by the defendants. That under the
longer no controversy. lease contract of the defendant, the lease is on a month to
o No genuine issue was raised by the defendant in month basis on the original rental of P350, increased later
his Answer. to P450. Vergara’s lawyer sent defendants demand letter
o There was an issue of fact, but it is not genuine as for payment of back rentals and to vacate the premises.
it does not have anything to do with the cause of Defendant sent a joint reply confirming their verbal
action of the plaintiff. commitment to vacate, but requesting extension to enable
them to find new space. One of the defendants paid part
of the arrears. Then they announced their refusal to
vacate on the ground that the lot on which the building
URMANETA V. MANZANO (1962): plaintiff filed a suit for stands, although titled in Vergara’s name, was part of the
the recovery of land, covered by a homestead application. track of land which is ordered reverted to the public
The plaintiff alleged in the complaint that he is the owner domain by a judgment of the RTC. Defendants answered
of the land, and defendant took possession of the land and and denied the averments of the complaint, as to theirs
deprived him of its produce, and defendant refused to and plaintiff’s personal circumstances, and Vergara’s
restore possession of the property despite demands. He ownership of the land, and that they have been occupying
attached the following documents: the order of the Dir. Of the premises in the concept of owners. Vergara filed a
Lands’ transfer of homestead patent rights from the heirs motion for summary judgment. TC denied the motion,
of Novesteros to the plaintiff; another order of the Dir. saying that there is a genuine issue of fact; there is no
Ordering the transfer of the rights. Defendant filed a MTD admission in the pleadings.
for lack of cause of action, attaching thereto: order of the
Dir. Of Lands confirming the right of Manzano over portion o SC: respondent judge confuses the MSJ with
B of the land in question; certification of the land judgment of the pleadings.
registration commissioner to the effect that declared the o The fundamental issue in a summary judgment is
land as public land; and the order of the court dismissing a NOT whether the answer tenders a valid issue, but
criminal case filed by the plaintiff earlier against the whether the issue thus tendered is valid, genuine,
defendant. TC denied the MTD after hearing. Defendant or fictitious, sham, characterized by bad faith.
filed an Answer, alleging among others, that he has no
interest over the disputed land (meaning, he is not an NOTE: Section 1, Rule 19 of the Rules of Court provides
owner), except as a tenant of Manzano. Plaintiff filed that where an answer "fails to tender an issue, or
motion for summary judgment, stating that Manzano, the otherwise admits the material allegation of the adverse
alleged landlady of defendant had sold to plaintiffs all of party's pleading, the court may, on motion of that party,
her interest in the land, as shown by the Deed of Transfer direct judgment on such pleading." The answer would fail
of Homestead Rights. TC denied. Plaintiff filed a second to tender an issue, of course, if it does not comply with the
motion for summary judgment, attaching thereto more requirements for a specific denial set out in Section 10 (or
documents (5). Then, in a motion filed by Manzano, she Section 8) of Rule 8; and it would admit the material
reiterated the fact that he had sold the land to the allegations of the adverse party's pleadings not only where
plaintiffs, and defendant had never been her tenant. She it expressly confesses the truthfulness thereof but also if it
did not deny the material averments of the complaint. TC omits to deal with them at all.
rendered summary judgment.
Now, if an answer does in fact specifically deny the
o ISSUE: WON such judgment is proper. material averments of the complaint in the manner
o SC: YES, the TC properly rendered summary indicated by said Section 10 of Rule 8, and/or asserts
judgment. affirmative defenses (allegations of new matter which,
o There was no genuine issue of fact, as the owner while admitting the material allegations of the complaint
admitted them. expressly or impliedly, would nevertheless prevent or bar
o The only issue remaining here which is not genuine recovery by the plaintiff) in accordance with Sections 4
anymore is is he a tenant? and 5 of Rule 6, a judgment on the pleadings would
o It is quite evident from the pleadings that plaintiff naturally not be proper.
was the owner of the land in question.
 Allegation of the defendant has been
categorically denied by the owner herself.
GALICIA V. POLO (1989): it was the defendant who filed
NOTE: Where there is no genuine issue between the a MSJ.
parties, as to any material facts, or, if ever there is, it can
easily be determined from the pleadings and documents o FACTS: Palajos instituted a complaint for forcible
attached thereto, the trial court may render a summary entry against the Galicias, charging that the
judgment on the basis on the said pleadings and defendant forcibly entered the eastern portion of the
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property of Palajos’ father. The defendants filed for presently exist, upon matters submitted to the court in
numerous postponement and failed to be present, action or proceeding.
so the TC received plaintiff’s evidence ex parte.
Ultimately, TC ruled for the plaintiff and against the  In the pleadings.
defendants to pay damages / reasonable use of the
land. When that judgment became final, and by ESSENTIAL REQUISITES OF A VALID FINAL
reason of the defendants’ failure to pay such JUDGMENT:
damages, the land adjoining the subject of the
forcible entry case owned by the defendant was (1) That the court rendering judgment must have
levied upon. The highest bidder was the plaintiff. jurisdiction over the subject matter;
Then the defendants filed an action for recovery of (2) That the court rendering judgment must have
ownership over the land that was sold at public jurisdiction over the person of the defendant;
auction. The plaintiff filed a motion of SJ, which the (3) IN CRIMINAL CASES: venue is properly laid.
TC granted. (4) That the court rendering judgment must have
o ISSUE: Proper? YES. jurisdiction over the issues;
o For failure to redeem the land within the period of  EXAMPLE: If the action is for reconveyance
redemption, defendant cannot now claim that they on the ground that plaintiff’s cause of action
still own the said property. is based on a sale, then the court renders
judgment that the party inherited it → that is
NOTE: The Rules of Court authorizes the rendition of not an issue there.
summary judgment if the pleadings, depositions and  A violation of due process as no
admissions on file together with the affidavits, show that, opportunity to meet that issue.
excepts as to the amount of damages, there is no issue as  He only presented evidence to
to any material fact and that the moving party is entitled to controvert the issue, which is sale.
a judgment as a matter of law (Sec. 3, Rule 34).  Without prejudice to an amendment to
Controversely, summary judgment is not proper where the conform the evidence.
pleading tender vital issues the resolution of which call for  The judgment shall decide only the issues
the presentation of evidence (Villanueva v. NAMARCO, 28 raised by the parties in their pleadings.
SCRA 729 [1969]; Guevarra, et al., v. CA, et al., 124 (5) That the court rendering the judgment must be a
SCRA 297 [1983]. validly constituted court, and the judge should be
a de jure or ide facto judge; and
Summary judgment "is a device for weeding out sham (6) The judgment must be made after a lawful
claims or defenses at early stage of litigation, thereby hearing.
avoiding the expense and loss of time involved in a trial.  The due process has been properly
The very object is "to separate what is formal or pretended observed.
in denial or averment from what is genuine and
substantial, so that only the latter may subject a suitor to SEC. 1: FORMAL / PROCEDURAL REQUISITES OF A
the burden of trial.' The test, therefore, a motion for VALID JUDGMENT: applies not only to a judgment, but
summary judgment is — whether the pleadings, affidavits, also to a FINAL ORDER.
exhibits in support of the motion are sufficient to overcome
the opposing papers and to justify a finding as a matter of FINAL ORDER: opposite of an interlocutory order.
law that there is no defense to the action or the claim is
clearly meritorious" (Estrada v. Hon. Consolacion, et al.,
71 SCRA 523 [1976]. FINAL ORDER JUDGMENT
One that disposes off the A disposition and

SEC. 6: AFFIDAVITS IN BAD FAITH: the court shall case, such that there is determination of the rights
forthwith order the offending party or counsel to pay to the nothing more for the court of the parties after trial.
other party the amount of the reasonable expenses which to do in the case, except to
the filing of the affidavits caused him to incur OR adjust execute the judgment / final
guilty of contempt. order.
 But the court can also dispose of a case by a final

RULE 36: JUDGMENTS, FINAL ORDERS AND ENTRY order.
THEREOF  EXAMPLE: a MTD was filed on the ground of
improper venue or lack of jurisdiction → GRANTED
→ that is a FINAL ORDER.
 Nothing more is to be done by the court
FINALITY OF JUDGMENTS: a.k.a ENTRY OF except to execute it.
JUDGMENT.  Also when a plaintiff fails to prosecute his
cause for an unreasonable length of time
 Applies also to criminal cases. and the court grants it → that is a FINAL
order.
JUDGMENT: the final consideration and determination of  It dismisses the case with prejudice.
the court of the rights of the parties as those rights
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INTERLOCUTORY ORDER: there remains to be done.

JUDGMENT UPON A COMPROMISE: a judgment
 If a defendant files a MTD on the ground of lack of rendered with the consent of the parties, the purpose is to
jurisdiction, and the trial court DENIES the motion effect a compromise or settlement of an action.
→ INTERLOCUTORY.
 There is more to be done, as the defendant  EFFECTS:
has to Answer, PT, then trial. (1) NOT appealable and immediately executory;
(2) Cannot be annulled EXCEPT upon error,
FORMAL REQUISITES OF A VALID JUDGMENT: deceit, violence, or forgery of documents;
 Remedy available is not through
(1) In writing; appeal but through petition for
(2) Personally and directly prepared by the judge; certiorari.
(3) Stating clearly and distinctly the facts and laws (3) It is res judicata.
within which it is based;  Is the court required to make findings of facts and
(4) It must be signed by the judge; and conclusions of law?
(5) Filed with the clerk of court: that is how you
promulgate the decision.
SC IN ONE CASE: in a compromise agreement, the court
Is there a distinction between judgment and opinion of the is not anymore required to make findings of facts and
court? YES, as while the two are usually combined in one conclusions of law.
instrument, generally called decision:
o REASON: the court is deemed to have adopted the
statements of facts and conclusions of law made by
JUDGMENT OPINION the parties themselves in their compromise
agreement, and their consent has been made.
As the final order or Found in the findings and o It is now unnecessary for the court to still make a
disposition of the court is conclusion of the court, preliminary adjudication of these matters, as these
found in the dispositive otherwise the RATIO matters are already covered by the compromise
portion of the decision. DECIDENDI. agreement.
- WHEREFORE xxx - Where the judge sets

- Determines the rights of forth the facts and the OCTOBER 6, 2016
the parties to the laws within which it is
controversy. based → constitutional REQUIREMENTS TO A VALID JUDGMENT:
requirement.
SUBSTANTIAL REQUISITES:
 In case of conflict, who shall prevail? It is the
JUDGMENT. (1) The court must have jurisdiction over the subject
 REASON: it is elementary in procedure that matter and over the person of the defendant;
the resolution of the court in a given as (2) The court or tribunal must be clothed with
embodied in the dispositive portion of the authority to hear and determine the matter before
decision, is the controlling factor that it;
determines and settles the rights of the (3) The evidence must have been considered by the
parties and resolves the questions presented tribunal in deciding the case; and
therein. (4) The parties must have been given an opportunity
to be heard.
SIN PERJUICIO JUDGMENT: without prejudice.
FORMAL REQUISITES:
 One that contains only the dispositive portion, with
the reservation of the making of findings of facts (1) Must be in writing;
and laws in a subsequent judgment. (2) Personally and directly prepared by the judge;
 That is NOT allowed, as the Constitution clearly (3) State clearly and distinctly the facts upon which the
provides for it. decision was based, and the law on which it is
based;
NUNC PROTUNC JUDGMENT: judgment NOW for (4) It should contain a dispositive part;
THEN. (5) Signed by the judge;
(6) Filed with the clerk of court.
 FUNCTION: to record some acts done by the court
done at a former time, which have not been carried JUDGMENT UPON A COMPROMISE: the court is not
into the records, and the power to make such entry required to make a findings of facts and conclusions of
is restricted to placing upon the record evidence of law.
judicial actions, which has actually been taken.
 It may be used to make the records speak the truth,  REASON: the court is deemed to have adopted the
but not to speak what it did not speak but ought to statement of facts and conclusions of law made and
have spoken. resolved by the parties themselves.
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 HOWEVER, actual entry may be made

Does a pronouncement of judgment in open court latter, but it shall retroact to the date of
constitute a valid rendition of judgment? NO. finality of the judgment.
 REASON: you can only verify later that the
period to appeal or file an MR has already
CrimPro case: the witness that is supposed to be crossed lapsed.
examined failed to appear, including the private  EFFECT OF FINALITY OF JUDGMENT: produces
prosecutor. Because of that, that accused field a Motion to three effects:
Dismiss the Case on the ground of the violation of his (1) The prevailing party is entitled to have
rights to speedy trial. The court granted the motion orally. execution issue as a matter of right;
Then, the witness and the private prosecutor arrived, (2) The court rendering the judgment losses
explaining that there was a vehicular accident, which jurisdiction over the case, so that it can no
prevented them to arrive in court. Finding such correct the judgment in substance, except to
explanation meritorious, the TC reconsidered its original make corrections of clerical errors, mistakes
order dismissing the case and reset the case for another plainly due to error or inadvertence; and
day. (3) Res judicata supervenes.
 EXCEPTIONS ON THE RULE OF FINALITY OF
o Is that double jeopardy? Is there already dismissal? JUDGMENT:
o SC: NOT a valid dismissal / final order, as it was (1) JUDGMENT FOR SUPPORT: can be
only verbally, and not yet reduced in writing, signed modified at any time, as the obligation to
by the judge, and filed with the COC. give support depends not only the resources
o The mere pronouncement of a judgment or final of the obligors, but also on the ever changing
order in open court with the stenographer taking needs of the obligee.
notes thereof cannot constitute a rendition of (2) If execution of the judgment will be UNJUST:
judgment. cannot be executed.
o It is the filing of the signed with the COC which
constitutes rendition of judgment.
o While it was presumed that the judgment that was BUSTOS V. COURT OF APPEALS: when a defendant in
dictated in open court will be the judgment of the an unlawful detainer / ejectment case becomes the owner
court, the court may still modify the judgment, and of the land.
may not therefore constitute a real judgment of the
court. o To execute the judgment to evict him from a lot
which he now owns would be unjust.
FINAL ORDER: one that disposes off the case other than
the merits of the case / upon the pleadings presented.
RE: a case of a child who was left by his parents to a
family friend. The parents then went abroad. After 10/12
JUDGMENT FINAL ORDER years, the parents came home to settle permanent herein,
and they wanted to get the child back, but the child and
Based on the evidence. Final disposition of the case the family friend did not want to. There was a trial for
not necessarily on the custody. The TC ordered the child to be given to the
merits. parents. SC affirmed. Now, the judgment was being
Example: SEC. 3, RULE executed.
100
17: failure to prosecute .
o The child did not really want to go back to his
SEC. 2: ENTRY: WHERE: in the book of entries of parents. He testified during the hearing for its
judgments by the COC. execution, that if he will go back to them, he will kill
himself.
o SC: reversed; even if the judgment is final, but it is
 DATE OF FINALITY: deemed to be the date of its
entry. not anymore for the best interest of the child.
 Even if actual entry is later.
 CONTAINS: dispositive portion of the judgment or
final order and shall be signed by the clerk AND SEC. 3: JUDGMENT FOR OR AGAINST ONE OR MORE
certificate that it is final and executory. OF SEVERAL PARTIES:
 WHEN IS IT ENTERED? When the judgment has
become final and executory.  When justice so demands, the court may require
 WHEN IT ATTAINS FINALITY: the parties of each side to file adversary pleadings
(1) If no appeal; or as between themselves.
(2) No motion for new trial is filed within  ESCOLIN’S COMMENT: That can happen in
the time provided in these Rules. a counterclaim, cross-claim, but under the
 FINALITY OF ENTRY is equal to FINALITY OF rules, failure to file the same operates as a
JUDGMENT. bar.
 Bakit makialam ang court? If they do
100 not assert their rights, they waive it.
Not based on the pleadings.
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 Reconcile with compulsory counterclaims and  Therefore, it is already immediately

cross-claims: leave it to the parties to secure their appealable, as you are already taking about
rights. execution (MIRANDA V. COURT OF
APPEALS).
SECS. 4 and 5:  Only that the court can stay to await the
resolution of the next issue.
SEVERAL JUDGMENTS SEPARATE JUDGMENTS SEC. 6: JUDGMENT AGAINST ENTITY WITHOUT

(SEC. 4) (SEC. 5) JURIDICAL PERSONALITY: persons not incorporated as
a separate juridical person, enters into a certain
WHEN RENDERED: In an Upon determination of the transaction.
action against several issues material upon a
defendants, the court may, particular claim, as when  SEC. 15, RULE 3: they may be sued in the
when several judgment is there is joinder of causes of common name they may be known.
proper, may render
101
action .  Summons: SEC. 8, RULE 14: service upon
judgment against one or any one of them, or the person in charged in
more of them, leaving the the place of business.
action to proceed against  The judgment shall set out their individual or proper
the others. names if known.
WHEN NOT PROPER: the EXAMPLE: expropriation
defendants are sued jointly proceedings → if one
or in a common cause of defendant raises a special CONSOLIDATED BANK V. COURT OF APPEALS
action → only when it is defense not applicable to (1990): here, a judgment of the CA was rendered.
separable. others, then, it shall render
a separate trial and render o What constitutes a valid rendition of a judgment?
- EXAMPLE order separate judgment only for Signed and filed to the COC.
separate trials. that defendant. o In the decision of the CA (3 justices), it was signed
first by the ponente, and thereafter to the senior
Once judgment against one
member, then to the junior member.
is made, the action may
 His decision was concurred by the other two
proceed against the other.
members of the division.
 While it was in the junior member, the
CERTAIN PROCEEDINGS WHICH HAVE MULTI- ponente died.
TIERED ISSUES: the determination of one issue is
 Then, after he junior member signed it, the
already subject to a separate judgment: decision was delivered to the COC, three
days after the death of the ponente.
 EXAMPLE: expropriation proceeding:  Then the same division annulled the decision
(1) Right for expropriation: separate judgment. for being tardily promulgated.
 Authority AND for a public purposes. o Was that correct? YES.
 If the court finds for the plaintiff, the o In a single sala court, decision may no longer be
court will issue order of expropriation. promulgated after the death of the judge, and the
(2) Determination of the just compensation, same is also binding to collegiate courts.
subject to a separate judgment. o Was that a valid rendition of judgment? NO, valid
 The disposal of the first issue is already appealable, annulment.
without awaiting for the next issue to be resolved. o SC: a decision becomes binding only upon its
 The judgment of just compensation can likewise be promulgation → delivery to the COC.
appealed. o If a member of the collegiate court has already
 In case the court renders separate judgment, the vacated his office, by death, then his vote is
court may order STAY ITS automatically withdrawn.
ENFORCEMENT/execution while waiting for the
resolution of the second issue, and may prescribe
conditions as necessary to secure the benefit
JUDGMENT UPON A COMPROMISE:
thereof in whose party the judgment is rendered →
immediately appealable.
 So you can enforce it, only when it is final
and executory. WORLD MACHINE V. IAC (1990): JR Lithoplates
acquired a printing press machine from World Machine,
payable in monthly installments. Because Lithoplates
defaulted, World Machine commenced action. At the
101
Plaintiff, in one complaint, against the same defendant, may join hearing, they presented a compromise agreement on the
collection of 1M, rescission of a contract, an action from damages basis of which the court rendered a decision, settling the
arising from quasi-delict, specific performance (need not arise from the schedule of three payments to be made. Lithoplates filed
same contract or transaction or relations of the parties) → present to pay the stipulated amount on the second payment, so
rules on joinder only subject to the four rules. So the court will first on motion, the court issued a writ of execution. Lithoplates
consider the first cause of action, then dispose of that, and render a filed motion insisting that there was an extension of time
SEPARATE JUDGMENT on that. Then it will hear the second, then the granted to him by World Machine, and when this was
third, and the last cause of action.
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denied, Lithoplates appealed. CA sustained. for that purpose. Nevertheless, it is error for the trial court
to dismiss the first case with prejudice to the filing of the
o SC: NO, a judicial compromise has the force of law, second action without stating the reasons or basis thereof
and is conclusive between the parties, and it has This should not prevent the filing of the second action for
upon them the result of res judicata. custody of minor, since no opportunity was granted by the
o The claim that there was an extension period was trial court to the plaintiff to raise this issue for the
not in the decision. determination of the court in the habeas corpus case.
o Court applied herein the parole evidence rule: when Hence, We believe that the order of dismissal of the
an agreement has been reduced to writing, then petition for the writ of habeas corpus cannot be considered
that writing is deemed to have contained all the as a valid adjudication on the merits which would serve as
terms of their agreements and no party is allowed to a bar to the second action for custody of minor.
present any other evidence/parole evidence to
contradict the terms and conditions of the written
agreement. AMBIGUITY IN THE DECISION: can that be a subject for
 It is deemed to be the sole and only clarification? YES, in the same court.
repository of the agreement of the parties.
 When not there: deemed waived or
abandoned. PHILINVEST V. COURT OF APPEALS (1993): due to the
apparent ambiguity of the TC, the remedy of the two
defendants was to ask for clarification to the TC before
interposing an appeal.
SUAREZ V. COURT OF APPEALS (1991): respondent
common law wife (with a child) filed a petition for habeas  The TC has jurisdiction to clarify its own decision,
corpus against her common law husband to recover the even after their finality.
custody of their minor child. Before she was finished  But herein, the decision was appealed immediately
presenting evidence, she filed a motion to dismiss without to the CA, the said court can clarify the ambiguity in
prejudice to file another action for custody of minor, to deciding on the errors sought thereof instead of
determine as to who has a better right to the custody of remanding it to the court of origin.
102
the minor (dismissal under SEC. 2, RULE 17 ). The  When there is ambiguity, and judgment shall be
judge dismissed the case, but with prejudice (unless read in connection with the entire record then
otherwise provided). construed accordingly.
 In such a case, it is proper to construe the pleadings
o An action for custody is filed. Defendant filed a MTD and the evidence.
on the ground of res judicata, as the first case was
dismissed with prejudice. TC denied the MTD and
only granted the mother two visitation times and
custody of minor during Christmas season. PEOPLE V. CFI QUEZON (1993): a criminal case for
o ISSUE: was there already with prejudice? attempted rape was tried and submitted for decision in
o SC: The order of dismissal with prejudice is NULL Branch X, preside by Judge Nañadiego. However, he
AND VOID for having been rendered without retired, without deciding the case. Judge Montecillo of
expressing therein the facts and the laws upon Branch III was designated to take over Branch X. The
which it is based. attempted rape case decided by Judge Montecillo on May
 TC should have decided whether the MTD 22. On June 9, Judge Antona was appointed as presiding
shall be allowed, and in pursuant to SEC. 2, judge of Branch X. on June 20, the COC promulgated the
RULE 17. decision of Judge Montecillo.
 Foremost, the TC did not state the facts of
the on which it is based → pero pilit „yan, o ISSUE: is that decision valid (acquitting the
pero tama naman din. accused)? VALID.
 Here, under such terms and conditions  People’s contention: it was promulgated, but
therein. the judgment of acquittal was penned by
Judge Montecillo.
NOTE: The purpose of the plaintiff in dismissing the first o SC: it is not necessary that he be the presiding
action for a writ of habeas corpus was not to end litigation judge of Branch X at the time the decision is
concerning the right of the former to the custody of her promulgated.
child but on the contrary, to pursue it in a second action,  Even in the expiration of his temporary
this time for custody of minor. It is worthy to note that the designation at Branch X, he continued to be
ground upon which respondent Manese filed her motion the incumbent judge of Branch III.
for dismissal is erroneous since the question as to who  After all, where a CFI is divided into several
shall have the custody of the child can be sufficiently branches, each of the branches is not a court
resolved in the petition for writ of habeas corpus pursuant distinct and separate from the others → it is
to Rule 102, Revised Rules of Court without the necessity just one RTC.
of filing a separate action under Rule 99 of the said rules  Jurisdiction is vested in the court, not in the
judges, so that when a complaint is filed
102 before one branch of judge, jurisdiction does
Dismissed upon motion of the petitioner by leave of court, after
not attach to the said branch of that judge
service of action.
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alone, to the exclusion of all other judges. as are within the issue presented and necessary to justify
the conclusions (Ongsiako vs. Magsilang, 50 Phil. 7380; I
Moran's Rules of Court, 3rd Ed., pp. 617; 618).
NOTE, APPLICATION: In the instant case, the judgment
of acquittal penned by Judge Montecillo must be declared
valid. It is not necessary that he be the presiding judge of
Branch X at the time his decision was promulgated since FABULAR V. COURT OF APPEALS (1982): res judicata,
even after the expiration of his temporary designation at where the court loses jurisdiction of the case when the
Branch X he continued to be an incumbent of Branch III. judgment attains finality.
After all, where a Court of First Instance (now Regional
Trial Court) is divided into several branches, each of the o This is a land registration case. The court confirmed
branches is not a court distinct and separate from the title to the applicant and ordered the applicant to
others. Jurisdiction is vested in the court, not in the judges, pay the oppositors of P20, the value of the two non-
so that when a complaint or information is filed before one bearing coconut trees found to have been planted
branch or judge, jurisdiction does not attach to said branch by the oppositor’s father therein. The decision
of the judge alone, to the exclusion of the others. Judge became final and executory. Two months after the
Montecillo penned the decision on 22 May 1978 while his issuance of the writ of execution and four years
temporary designation at Branch X expired only on 10 after the promulgation of the decision, the court,
June 1978 when Judge Antona qualified for the position. upon the oppositor’s motion amended the writ of
And, Judge Montecillo was still an incumbent judge of the execution by declaring the oppositor the owner of all
Court of First Instance of Quezon, being then the the coconut trees and ordering the applicant to pay
permanent judge of Branch III, at the time his decision was him P20 per tree.
promulgated. Thus, he continued to possess authority to o This amendment, according to the TC, was made to
dispose of the case. In fact, even after his temporary conform to the substance of the decision.
designation, he continued to have authority and could o SC: a final judgment cannot be modified, the
decide the case as it was one of those submitted to him dispositive portion, NOT the ratio decidendi thereof,
for decision during his detail. is controlling.
NOTE: Settled is the rule that after a judgment has

Stating upon the facts and laws upon which it is based: become final, no additions can be made thereto, and
nothing can be done therewith except its execution;
otherwise, there would be no end to litigations, thus setting
GRIÑEN V. CONSOLACION (1962): the decision of the at naught the main role of courts of justice, which is to
judge was a one-page decision. The auditor of the PCS assist in the enforcement of the rule of law and the
sent a letter-complaint to the City Prosecutor, requesting maintenance of peace and order, by setting justiciable
evaluation of the evidence gathered against Grinen, the controversies with finality. (Fariscal Vda. de Emnas vs.
cashier of PCS. When the prosecutor initiated an Emnas, 95 SCRA 474). In the present case, it is beyond
investigation against Grinen, Grinen filed a petition with the power of the lower court or this Court for that matter, to
the court to stop the proceedings, as there was no modify the former's judgment which had long become final
complainant. and had in fact been executed.
o TC: issued a brief decision.

o ISSUE: did the decision not state clearly and
distinctly the facts and law on which the decision is
based?
o SC: the decision satisfies the requirements here of PAJARITO V. SENERIS (1978): the accused was
the constitution: charged with double homicide through reckless
(1) It stated the facts on which it is based: a imprudence. The information alleged that he was driving a
judge only must make pertinent findings of bus at the time of the accident, owned and operated by
facts and conclusion upon the pertinent Ayson. Upon arraignment, the accused pleaded guilty. He
matter. was convicted and sentenced to pay indemnity of P12,000
 ULTIMATE TEST: Whether they are to the heirs of the victim. A writ of execution was issued
comprehensive enough and pertinent against the driver, but returned unsatisfied. Whereupon,
to the issues raised and provide a the mother of the victim filed an alias writ of execution
basis for the decision. against the employer of the accused-driver/owner of the
(2) LAW. bus. The TC denied the motion, as the owner is not a
party to the criminal case, which is a violation of due
NOTE: The trial judge need only make a brief, definite and process.
pertinent findings and conclusions upon controverted
matters. The ultimate test to the sufficiency of trial Court's o PROPER REMEDY: if the employer cannot pay the
findings of facts is whether they are comprehensive award of civil liability in the criminal judgment, and
enough and pertinent to the issue raised to provide a basis you want to enforce the subsidiary liability of the
for decision. When the issue involved is simple, the trial employer, file a case.
court is not required to make a finding upon all the o But here, the SC said even if the employer is not a
evidence adduced. It must state only such findings of facts party of the case, an alias writ of execution may still
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issue without violation of the due process. 2) A second motion for the rule that the motion
o Can judgment be enforced upon him? YES. new trial on a ground must specify specific
o The writ should be issued and it may be enforced available to the party matters;
against the employer as the judgment of conviction when the first motion 3) It failed to substantiate
is CONCLUSIVE upon the employer, not only with was filed. the alleged errors;
the latter’s civil liability, but also with respect to its 4) It merely alleged that
amount thereof. the decision in question
o To require the petition to file a separate case for the was contrary to law;
liability of the employer will not only prolong the 5) The adverse party was
litigation, but require unnecessary expenses. not given notice
o RE: claim that he was no longer the owner → that thereof.
issue could have been ventilation in the hearing for WHEN: 15 to 30 days → within the period to file/perfecting
the issuance of the alias writ. an appeal.
o PRINCIPLE: When a judgment in a criminal case is EFFECT: period to appeal is not interrupted (SEC. 2).
rendered against an employee for civil damages,
the employer is only SUBSIDIARY LIABLE: the
When is a Motion for New Trial (MNT), if the ground is
judgment awarding damages against the driver is FAME, considered as pro forma? There is no AFFIDAVIT
conclusive upon the employer. OF MERIT.
 When does subsidiary liability attach? Only
when the principal debtor is insolvent. GROUND: NEWLY CONSIDERED EVIDENCE:
1) If testimonial evidence: attach to the motion their

OCTOBER 13, 2016 affidavits of the witnesses that were newly
discovered, stating that evidence was not
discovered, or
RULE 37: NEW TRIAL OR RECONSIDERATIONS 2) Authenticated documents.
SEC. 2: what are the FORMAL REQUIREMENTS of a

MNT/R? To not be considered as NOT pro forma:
SEC. 1: Is there a distinction between MNT and an MR?
(1) It must be in writing;
(2) State the grounds therefor;
MOTION FOR NEW TRIAL MOTION FOR (3) Written notice shall be served on the adverse party
RECONSIDERATION by the movant.
GROUNDS: GROUNDS: NOTE: just comply for the requirement of a motion.
1) FAME, which ordinary 1) Damages awarded are  This notice requires compliance with:
prudence could not excessive; 1) RULE 13: three-day notice rule.
have guarded against 2) The evidence is 2) Notice of hearing must state the date and
and by reason of which insufficient to justify the time of the hearing.
such aggrieved party decision or final order;
has probably been or SUBSTANTIVE REQUIREMENTS: non-compliance shall
impaired in his rights; 3) The decision or final not toll the reglementary period of appeal.
2) Newly discovered order is contrary to law.
evidence. (1) MOTION FOR NEW TRIAL:
a. FAME: must be supported by affidavit of
Procedurally, is there a difference? YES. merits, containing:
i. the facts and circumstances
constituting the FAME, and
ii. he has a good and meritorious
MOTION FOR NEW TRIAL MOTION FOR
defense.
RECONSIDERATION
b. Newly discovered evidence: supported by:
i. affidavits of the witnesses by whom
WHEN CONSIDERED WHEN CONSIDERED such evidence is expected to be given
PRO FORMA: PRO FORMA: (testimonial),
ii. duly authenticated documents
1) Not supported by 1) It was a second MR. which are proposed to be introduced
103
affidavits of merits 2) It did not comply with in evidence (documentary).
NATURE OF THE NEWLY DISCOVERED EVIDENCE:

103
Must contain: the following must concur:
1) The circumstances constituting the FAME; a. The evidence have been discovered after the trial.
2) That the movant has a substantial cause of action or
defense.
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b. It could not have been discovered and produced  There will be NO new trial and
at the trial even with exercise of reasonable the court will re-examine the
diligence; law/evidence.
c. It must be material and not merely collateral,  EFFECT: the original judgment
cumulative, corroborative or impeaching; and will also be vacated / modified.
 It is necessary to support the motion with the  If before, party 1 won, the
affidavits of the witnesses that was newly movant will now win as the
discovered, or the documents. court.
 If you do not attach that, the court cannot  The court will render another
determine whether they would change the decision, different from the first.
result of the case, if admitted.
 Also applicable to FAME → must state the WHEN IS FRAUD A SUFFICIENT GROUND FOR NEW
circumstances to become the basis of the TRIAL? As when a party was not able to present his case
court in granting new trial. properly.
 Also if no statement of good and meritorious
defense, it will be an exercise of futility.  He was misled by the other party, such that he was
d. The evidence is of such weight that if admitted not able to properly present his side.
would probably alter the result of the action.  EXTRINSIC FRAUD: unlike when lifting order of
default, as then it will be VERIFIED.
(2) MOTION FOR RECONSIDERATION: necessary:  Here, just the affidavits.
a. Must point out specifically the findings and  If there is already a judgment, do not file
conclusion of the judgment or final order MTLOOD, but file a MNT.
which are not supported by the evidence or  If the judgment is already final and
which are contrary to law. executory, then file a petition for relief from
b. The evidence on record which is contrary judgment (RULE 38).
to the conclusions made by the court.
 State/pinpoint the evidence which the BEFORE JUDGMENT Motion To Lift Order of
court has overlooked. Default (FAME)
 So that the court will know what are
AFTER JUDGMENT BUT Motion for New Trial
the evidence contrary to its decision.
NOT YET FINAL AND (FAME)
c. The provisions of law which the court did
EXECUTORY
not apply.
 If the court misinterpreted the law, cite WHEN JUDGMENT IS Petition for Relief from
the proper jurisprudence interpreting FINAL AND EXECUTORY Judgment (FAME)
that law.
 RULE 47: annulment of judgment, FRAUD ONLY.
OTHERWISE, it shall be considered a pro forma as the  When is FRAUD EXTRINSIC?
court will not know that its decision is contrary to the
evidence / law.
What happens if a MNT is GRANTED? SEC. 6: the INTRINSIC FRAUD EXTRINSIC FRAUD
original judgment or final order shall be vacated, and the
action shall stand for trial de novo. Refers to acts of a party Connotes any fraudulent
during the trial which does scheme executed by the
 But the recorded evidence taken upon the former not affect the prevailing party outside of
trial, insofar as the same is material and competent presentation of the case. the trial against the losing
to establish the issues, shall be used at the new party who because of such
trial without retaking the same. fraud is prevented from
 The court will then conduct a new trial. presenting his side of the
 If it is based on fraud, then substantial by evidence case.
that there was fraud. EXAMPLE: presentation of Prevent witness from
 There is a hearing. a forged promissory note. testifying.
 Then if there is a substantial defense, the
court will grant the motion and a new trial will
be conducted.
ASIAN SURETY V. ISLAND STEEL, INC. (1982): Island
 Similarly, if the ground for NT is newly
Steel filed a suit for recovery of sum of money against
discovered evidence, and the court believed
Asian Surety on the basis of the bond issued by the surety
the same (requisites are complied with), the
to guarantee the performance of the obligation of a certain
court will now vacate the original judgment
Villanueva. Villanueva obtained a bond as they entered
and set the case for new trial.
into an agreement for the buying of GI sheets on credit
 Subject: present the newly discovered
from Island Steel. Asian Surety put up the performance
evidence.
bond, and it will pay in the event that Villanueva fails to
 Is that the same procedure if an MR
pay its obligation. Villanueva failed to pay for the delivery
is granted? NO.
of the sheets. For failure to pay the obligation, Island Steel
demanded and sued Asian Surety. The trial court
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CIVIL PROCEDURE
p
rendered a judgment, ordering Asian Surety to pay Island previous owner. The original owner/seller filed a petition
Steel the obligation of Villanueva pursuant to the bond for the reconstitution of a loss/destroyed owner’s duplicate
issued. of certificate of title. Because of that, the LRC granted the
petition and ordered the issuance of a new CT. Demetriou
o An appeal was made to the CA, and CA affirmed learned about it, and he filed a petition for annulment of
the judgment of the trial court. judgment on the ground of fraud.
o There was an attempt to go up to the SC, but there
was failure to file the petition for review within the o SC: The fraud committed in this case is INTRINSIC,
extended period granted by the court → the and that is not the kind of fraud as a proper ground.
judgment became final. o LR case: the whole world is constructively notified.
o Asian Surety sought for the annulment of judgment o EXTRINSIC: any fraudulent act of the prevailing
on the ground of fraud. party in the litigation which is committed
 Allegation: there was non-delivery of the outside of the trial of the case, whereby the
goods at all. defeated party has been prevented from
 It was a purchase which is moro moro (there exhibiting fully his side of the case, by fraud or
was no sale at all). deception practiced on him by his opponent.
 And that ultimately, the surety would o In this case, the fraud committed by the seller was
have to pay, and the actions of not the kind of fraud that prevented the party from
Villanueva and Island Steel are presenting his case.
fraudulent. o That issue should have been a ground to oppose
 Only for the purpose of making Asian the petition for reconstitution.
Surety liable for the amount.  But that is not a ground for annulment of
 In short, the fraud committed by the judgment, or for petition for relief from
defendants is INTRINSIC FRAUD. judgment, or a MNT, or a ground to lift order
o ISSUE: is that a proper ground for a MNT, or a of default.
petition for relief of judgment?
o SC: NO, it was NOT extrinsic fraud. NOTE: The appellate court is certainly right in holding that
o It is not that fraud which can be a ground for the use of a false affidavit of loss does not constitute
annulment of judgment, or relief from judgment, or extrinsic fraud to warrant the invalidation of a final
new trial, as it is INTRINSIC FRAUD. judgment. The use of the alleged false affidavit of loss by
 It is a fraud that did not prevent the party private respondent is similar to the use during trial or
from presenting his case. forged instruments or perjured testimony. In the case at
 MEANING: it can be the very issue/merits in bar, petitioners were not really kept out of the proceedings
the case, or a defense that could have been because of the fraudulent acts of the private respondent.
raised in the case. They could have rebutted or opposed the use of the
 If not raised as a defense, then deemed affidavit and shown its falsity since they were theoretically
waived. parties in the case to whom notice had been duly given.
o What kind of fraud can be a ground for the
following? It must be extrinsic fraud committed by
the winning party. EXAMPLE OF EXTRINSIC FRAUD: Where a party served
his motion to set and notice of hearing on the collaborating
NOTE: The finding of the Court of First Instance in Civil attorney at the time when the said attorney was absent,
Case No. 51586 that there was indeed delivery of the when all previous notices were sent in the principal
goods to Villanueva by the appellee pursuant to a contract counsel.
to sell entered into in good faith, as affirmed by the Court
of Appeals sub silentio, laid to rest the issue as to validity FRAUD BY A CO-DEFENDANT: Is fraud committed by a
of the said contract to sell as well as the fact of delivery of co-defendant sufficient ground for new trial?
the goods in question. To allow Asian Surety to revive the
same question by the instant action to annul the judgment  RULE: fraud must be committed by the kalaban.
would not only violate the rule of res judicata, but would  OLD CASE: the judgment will not be set aside if the
encourage the appellant's contumacious resistance of a defendant has been a victim of his co-defendant.
just and valid obligation. Hence, the order of dismissal of  It shall not affect the right of the plaintiff who has
the complaint for annulment of the decision in Civil Case obtained judgment.
No. 51586 should be affirmed.  BUT, it would be different if the co-defendant
connived with the plaintiff, but that must be shown.
WHEN IS ACCIDENT A SUFFICIENT GROUND FOR A

DEMETRIOU V. COURT OF APPEALS (1994): here is a NEW TRIAL? Where the aggrieved party failed to attend,
property owner who sold his property to Demetriou. The say, due to a vehicular accident or illness.
property is covered by a TCT, which has two copies (one
is the original on file in the RD, and the other is in the  Or where his Answer field within the period
possession of the owner [owner’s duplicate certificate of prescribed by the rules sent by mail was lost in the
title]). The TCT was delivered to Demetriou but he did not mail.
have it registered under his name in the meantime. As it  The filing in the post office is the filing in
stands, the property is still registered in the name of the court.
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CIVIL PROCEDURE
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 The responsibility of such failure must not be consideration). According to Tumang, the property was
imputed to the party. just placed in trust to enable his brother-in-law, who is an
 The post office has been chosen as employee in the BIR to ―puff up‖ his personal holdings, as
an agent through which the court may they are required to make a full disclosure of all their
be notified. properties. The defendants denied the allegations. After
 The failure of the agent to make a trial, judgment was rendered in favor of Tumang, annulling
delivery does not constitute failure the sale as fictitious. CA affirmed the decision of the TC.
and cannot be contributed as After CA’s decision, but before its finality, defendants filed
104
negligence on the part of the a MNT on the ground of newly discovered evidence.
defendant. The receipts signed by the Tumang, having received the
 Sufficient ground for NT. payment for the purchase price, were discovered after the
trial because of a typhoon, and they found them in an old
WHEN IS MISTAKE A SUFFICIENT GROUND FOR A desk. CA granted MNT.
NEW TRIAL? Where a party failed to answer and appear
at the trial, put up a defense for the reason of a pending o SC: These receipts are properly considered as
compromise agreement believed in GF that it was not NEWLY DISCOVERED EVIDENCE.
necessary for him to appear on trial, there was a o Even by the exercise of due diligence, katagal na
MISTAKE which will constitute NT. noon.
o These receipts which were previously believed to be
 Is mistake of an attorney a ground for a NT? NO, lost and gone, found in a bottom back portion of an
NOT generally a ground for NT. old desk, in the course of a general cleaning, due to
 Mistake, lack of foresight or preparation on flood caused by heavy rains, could hardly been
the part of an attorney will not be admitted as located even upon exercise of reasonable diligence.
reason for NT. o All the elements were there.
 Otherwise, there would never ben an end to
the suit so long as new counsel employed NOTE: A motion for new trial upon the ground of newly
can show that prior counsel was insufficient, discovered evidence, is properly granted where there is
not diligent, or learned. concurrence of the following requisites, namely:
 HOWEVER, where the incompetency of the
counsel was so grave, that the defendant was a) the evidence had been discovered after trial;
prejudiced, as when failed to present his defense, b) the evidence could not have been discovered and
or because of some serious error on the part of the produced during trial even with the exercise of
attorney in the conduct of the case, the MNT shall reasonable diligence; and
be granted. c) the evidence is material, and not merely
corroborative, cumulative, or impeaching and is of
WHEN IS NEGLIGENCE A SUFFICIENT GROUND FOR such weight that if admitted, would probably alter
A NEW TRIAL? EXCUSABLE negligence. the result.
 It would depend upon the circumstances of the It seems quite reasonable to assume that the respondents
case. would have exerted all efforts to locate the receipts earlier;
 There is a standard: negligence is EXCUSABLE it was clearly in their interest and to their advantage to
where it is caused by failure to receive notice of the have presented them during the trial had they in fact been
action or trial by a genuine miscalculation/mistake effectively available to them at that time, since the receipts
upon reliance to a well-founded belief that the case appear to contradict petitioner's express denial of receipt
will not reach trial or by circumstances not involving of any money in connection with the transfer of 9/10 of her
fault of the parties, by reliance to the assurances of interest in the property involved. The receipts also appear
the other party within whom they depend. to support respondent spouses' defense that the three (3)
 The standard here of care required: which an documents nullified by the trial court were not simulated
ordinary prudent man bestowed on his important merely to avoid possible anti-corruption charges against
business. respondent Daniel del Mundo but had in fact been
executed for value. The receipts are, in other words,
NEWLY DISCOVERED EVIDENCE: apparently of such import that a reasonably prudent man
would have most diligently searched for them. There is no
(1) Discovered after trial; question then that the receipts involved are material and
(2) Could not have been discovered by due relevant to the issue of lack of consideration, and could
diligence; possibly effect a change in the result reached by the trial
(3) It would change the results if admitted. court.
TUMANG V. COURT OF APPEALS (1989): this a quarrel

between two siblings. Tumang was contending that she BELAMIDE V. COURT OF APPEALS (1979): this is a
was the original owner of a parcel of land in Baguio City. land registration case. ISSUE: Whether the land was
She sold that property to her brother-in-law and her sister.
After the sale, Tumang filed an action to annul the sale on
104
the ground that the sale was fictitious/simulated (no BTW, in the TC, the ground for MNT are two (FAME, and newly
discovered evidence). In the CA, only newly discovered evidence.
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acquired during the first marriage of Vicenta Montoya to 1) The nature and character of the FAME on which the
Martine Montoya, or the second marriage of Vicenta Motion is based,
Montoya to Velardo.
105 2) Movant’s good and substantial cause of action or
defense,
o TC: property was acquired during the second 3) The evidence he intends to present when the
marriage and accordingly divided the property: ¼ to motion is granted.
the heirs of the first marriage, ¾ to the heirs of the
second marriage. NOTE: there is substantial compliance with the affidavit of
o CA: affirmed. merit if FAME is incorporated in the main motion itself,
o Thereafter, a MR and MNT were filed by the heirs of provided the motion is VERIFIED, rather than preparing
the second marriage, the basis of which is that they affidavits of merits.
discovered that Exhibit 8 (―Birth Certificate‖) of the
oppositors, the heirs of the first marriage, was  Usually, the form is: motion, verification.
falsified.
 While in the official records of the Civil EFFECT OF FAILURE TO FILE AN AFFIDAVIT OF
Registrar of Silang, Cavite, shows that the MERIT: GENERAL RULE: a MNT would be fatally
name of the father was on blank in the defective if it is not supported by an Affidavit of Merit.
original records.
 Exhibit 8 falsely indicated that the father was  EXCEPTION: when the MNT is demandable as a
Montoya (superimposed). matter of right, as when the judgment and order is
 That that person was forcedly declared as an null and void, as when the court has never
heir. acquired jurisdiction over the person of the
o ISSUE: Is this newly discovered evidence? defendant or that it has no jurisdiction over the
o SC: NOT newly discovered as it did not comply with subject matter.
the second requirement, that it would not have been  SANTOS V. PNOC: Santos used to be a member
discovered despite exercise of reasonable of the BOD of PNOC, and a car plan was given to
diligence. him as one of the perks.
o Petitioners should have attacked the genuineness  Santos failed to pay, and a case was filed
of the BC when presented in the TC, as they had against him. Summons could not be served
every opportunity to check it in the Civil Registrar of as he transferred residence. The court
Silang. granted service of summons by publication.
 They did not do it. Trial ensued. After the presentation of
o These documents are public documents available to plaintiff’s evidence but before judgment
anybody. could be rendered, Santos filed a Motion to
o It was not attacked when originally presented in the Lift Order of Default and to Admit Answer.
court, and they should have exercise reasonable  SEC. 14, RULE 14 applicable?
diligence during the trial by checking the authenticity  TC ruled that he was effectively in default.
of the document.  BUT the SC ruled that there was no Motion
 In TUMANG, the receipts were believed to to Declare Default, so the defendant cannot
have been gone forever, as the sale was be in default.
long time ago.  But the argument should have been on
o First and last elements were present, but not the jurisdiction → over the person of the
second. defendant.
 HOWEVER, the SC in this case ruled that
NOTE: There can be no grave abuse of discretion by the there was jurisdiction over his person as
Court of Appeals in denying petitioners' Motion for New there was publication.
Trial. The document alleged to be falsified (Exh. 8) was  If under the exceptions, there is no need for
presented in the trial in the lower court. Petitioners should affidavit of merit.
have attacked the same as falsified with competent
evidence, which could have been presented, if they had SEC. 6: EFFECT: the action shall stand for new trial, BUT
exercised due diligence in obtaining said evidence, which the recorded evidence, insofar as competent, shall be
is Annex "A" to the Motion for New Trial (Annex F to used in the NT without retaking them.
Petition). It is, therefore, not a newly discovered evidence
that could justify a new trial (Rule 37 [1-b], Rules of Court).  Is trial de novo always the effect of granting the
motion? NO, if it is MR, as when it awarded
excessive damages or when the judgment is
AFFIDAVIT OF MERIT: the one which recites: contrary to law or jurisprudence, the court will just
amend its judgment without granting a new trial
(SEC. 3, RULE 37).
SEC. 4: must be resolved within THIRTY (30) DAYS from

105
NOW, before you remarry, you must liquidate the properties of the
the time it is submitted for resolution.
first marriage. Otherwise, the second marriage would be NULL AND
VOID, although the children in the second marriage would be  TC: 90 days to render judgment from the time it is
considered legitimate. REASON: precisely, so that the two sets of submitted from decision.
children will not be in conflict.  CA, appellate collegiate courts: one year.
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CIVIL PROCEDURE
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 SC: two years.

 It is equitable in character: it is only allowed in
SEC. 5: May a second Motion for New Trial or EXCEPTIONAL CASES.
Reconsideration be permissible? NO, those not included  Only when there is no other available or
are deemed waived (Omnibus Motion Rule). other adequate remedy.
 But if there are other available remedies, it
 BUT if based on the ground not existing nor cannot be used.
available when made, may be filed.  Because of its equitable nature, it is not
 If you file a MNT on the ground of fraud, and regarded with favor, as the judgment is
while it was pending, you discovered that already final and executory.
you had newly discovered evidence.  A judgment will not be voided if the party
Meaning, the second ground was not yet complaining has by exercising proper
present when the first MNT was filed. diligence have adequate remedy at law.
 If both grounds are existing at that time, then it  Can only be availed if there is no other available or
shall be waived. adequate remedy at law, or if there is, HOWEVER,
through negligence, it was not availed of, then this
Second MR for a judgment or final order: NOT ALLOWED. CANNOT be resorted to.
 If plaintiff files a complaint, and a MTD is filed by

the defendant, the period to file Answer is tolled, FRANCISCO V. PUNO (1981): defendant was declared
and the TC denied the motion. as in default for failure to attend Pre-Trial, and the plaintiff
 May a party file a MR to the order denying a is allowed to present evidence ex parte. He filed an MR of
MTD? 106
the order declaring him as in default. The same was
 Assuming he filed a MR, will the tolling within denied. He did not question the denial. What he did was
which he could file an Answer still continue? that he allowed the judgment to become final and
 Suppose after the denial for the first MR, the executory. After that period, he filed a petition for relief
defendant files a second MR, is that allowed? from judgment under RULE 38.
SEC. 7: PARTIAL NEW TRIAL OR o ISSUE: is that proper? NO, where another remedy
RECONSIDERATION: the court may order a new trial or is available, when in fact the defendant here had
grant reconsideration as to such issues if SEVERABLE filed an MR of such order, and when it was denied,
without interfering with the judgment or final order upon he allowed the judgment to attain finality, then
the rest. alleging practically the same ground in his MR to his
present petition for relief, which was already
SEC. 9: REMEDY OF DENIAL: NOT appealable, the previously denied by the court, what he should have
remedy being an appeal from the judgment or final done is to take in the higher courts the question of
order, but not from the denial of the order denying the such denial.
same. o An MR was a remedy available at law, BUT IT
DOES NOT END THERE.
 Usually, in practice, what they do is that they  If that is denied, you should have questioned
appeal both. that to the other courts.
 If not, the judgment itself, which has become
final and executory, magtuloy „yan.
RULE 38: RELIEF FROM JUDGMENTS, ORDERS, o THEY ARE EXCLUSIVE OF EACH OTHER.
OR OTHER PROCEEDINGS  It is only in appropriate cases where an
aggrieved party who has not been able to file
a MR/MNT that a petition for relief can be
filed.
MOTION FOR NEW TRIAL V. RELIEF FROM  If there are remedies at law, and the party
JUDGMENT: MNT on the grounds of FAME is fails to avail of them, they cannot later on
substantially similar to Relief from Judgment. resort to a petition for relief from judgment.
 An appeal is a remedy at law which is
 Difference: available at the time when it was rendered.
o He should have appealed the same, as it was a
remedy at law when the judgment is not yet final.
MOTION FOR NEW TRIAL RELIEF FROM
JUDGMENTS
WHEN FILED: Before Filed after the judgment has 106
MR: when the defendant is declared as in default, to the order
judgment has become final become final and allowing the plaintiff to present evidence ex parte; file an MR of the
and executory. executory. order declaring him as in default.
FAME and newly FAME only. MTLOOD: it is not enough that you state the FAME, and that you have a
discovered evidence. meritorious defense, like in a new trial, and verified.
NOTE: where a party fails to appear during the PT, the court declares
the defendant AS in default, as practically, the defendant cannot
NATURE OF PETITION FOR RELIEF FROM
participate in the trial because the plaintiff is allowed to present his
JUDGMENT: an equitable remedy.
evidence ex parte.
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CIVIL PROCEDURE
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NOTE: A party who has filed a timely motion for new trial
cannot file a petition for relief after his motion has been SEC. 3: within what period must a PRJ be filed? Within
denied. These two remedies are exclusive of each other. It SIXTY (60) DAYS after petitioner learns of the
is only in appropriate cases where a party aggrieved by a judgment, final order or other proceeding, AND Not
judgment has not been able to file a motion for new trial more than SIX (6) MONTHS after such judgment or
that a petition for relief can be filed. final order was entered, or such proceeding was
taken.
 OTHER PROCEEDINGS: unable to appeal on time

FAJARDO V. BAYONA (1956): petitioner’s appeal was due to FAME.
 ENTRY OF JUDGMENT: when it has already
dismissed. What he did was to question the dismissal of
his appeal by the TC through a petition for certiorari under become final and executory.
RULE 65, which was denied. Instead of going further to  TWO PERIODS THAT MUST CONCUR:
(1) SIXTY (60) DAYS from knowledge or from
the SC, what he did was to later on to question through a
the time petitioner learns; AND
petition from relief of judgment.
(2) SIX (6) MONTHS after the judgment and
o ISSUE: is that correct? NO. final order was entered or such proceeding
was taken.
o It was already a judgment: affirmed by the appellate
 MUST ACCOMPANY: Affidavits showing FAME
court.
o You lost it, you cannot avail of it anymore via a and the facts constituting good and substantial
petition from relief of judgment. defense as the case may be.
 Is the period for filing PRJ EXTENDIBLE? NO, as
o When a remedy at law has been availed on, and
you lost it, can you still avail of RULE 38? No more. this remedy is merely an act of grace or
benevolence intended to afford the litigant a
 Unless there was no remedy attributed to a
fault of his own. penultimate opportunity to protect his interest.
o One of the most important principles underlying our  Considering the nature of such relief and the
purpose behind it, the period fixed for the
rules of procedure is that denying multiplicity of suits
said Rule is not extendible, cannot be
or remedies.
interrupted, nor be subject to any
NOTE: The remedy under Rule 38 is to be availed of only condition or contingency, as it was a
device to meet a condition or
in exceptional cases, and where there is other remedy at
contingency.
bar, it should not be allowed to be used. In the case at bar,
aside from petitioner's fatally defective affidavits of merits,
FORM AND CONTENTS: must be verified and must be
the presentation of the petition for relief for the purpose of
accompanied by affidavits showing FAME, and the facts
securing an appeal from the judgment should not be
constituting good and substantial defense / cause of action
allowed petitioner because he already had the opportunity
to prosecute or compel the allowance of his appeal from as the case may be.
the judgment, when he instituted the action of certiorari
 EFFECT OF LACK OF AFFIDAVIT OF MERIT: the
and mandamus against the judge who had refused to
failure to accompany the same, showing the ground
approve his record on appeal.
relied upon, and the facts consisting good and
substantial defense is a FATAL DEFECT which
warrants the denial sought.
When and on what grounds may a party file a petition for  It is the affidavit of merit which serves as the
relief from judgment? jurisdictional basis for the court to entertain a
PRJ.
SECS. 1 and 2: A party may file a petition from relief of
 But the affidavit of merit may be set forth in
judgment when he has been unjustly deprived from the petition itself; it need not be on a
attending the hearing, or prevented from taking an appeal, separate document, so long as the petition is
on the ground of FAME. verified.
 Is there an instance where an AFFIDAVIT OF
 In another case, may a petition for relief filed by a MERIT is NOT required? In a PRJ if the judgment
party prosper when previously his appeal was or order complained off is an absolute nullity, as
dismissed, and upon dismissal, he filed a certiorari when petitioner is deprived of his day in court for
proceeding? NO MORE (FAJARDO), as the first
the reason that the court never acquired jurisdiction
remedy pursued is a remedy at law. over the person of the defendant, or over the
 The vicious practice in which the party fails subject matter of the suit.
to pursue a legal remedy and later abandons  Go into the very jurisdiction of the court.
and prosecute that inequity, there would be  Also bound by the period? NEITHER.
no end to litigation, or the parties will be
allowed to avail of the remedies one after PROCEDURE: TWO-TIERED PROCEEDINGS:
another.
 THEREFORE, availed only in exceptional FIRST PART:
cases, and when there is another remedy
at law, it should not be allowed to be
pursued.
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CIVIL PROCEDURE
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(1) If the petition is sufficient in form and substance: Amborsio Aquino, after her death, the natural child of
court will issue an ORDER requiring the respondent Ambrosio’s sister instituted intestate proceeding of the
to Answer with FIFTEEN (15) DAYS from receipt. estate of the deceased, wherein a certain person was
 Served in the same manner as the court may appointed as administrator therein. The estate was later
direct. adjudicated to the niece, nawala na si misis. The widow
(2) Once the Answer is filed or the period has expired: moved to set aside. TC denied the motion as it was filed
court shall hear the petition (SEC. 6). after the lapse of more 6 months since the questioned
 Present evidence of the FAME as alleged in order was entered. She instituted then an independent
the petition. action to declare the action null and void, grounded on
(3) If allegations found FALSE: dismiss the same. fraud and collusion that prevented her from attending on
(4) If allegations found to be TRUE: issue an ORDER her case.
setting aside the judgment, final order, etc.
 The case shall stand as if the judgment set o Such fraud is EXTRINSIC OR COLLATERAL.
aside had never been issued or taken.
NOTE: There can be no question as to the right of any
SECOND PART: when judgment has already been set person adversely affected by a judgment, to maintain an
aside; after the issuance of set-aside order: action to enjoin its enforcement, and to have it declared a
nullity, on the ground of fraud and collusion practiced in
(1) The court shall proceed and hear the case as if a the very matter of obtaining the judgment, when such
timely MNT has been granted. fraud is extrinsic or collateral to the matters involved in the
 Parang nag-37 ka. issues raised at the trial which resulted in such judgment;
 There would now be trial de novo. and fraudulent collusion between an administrator and a
third person resulting in an order or judgment whereby an
SEC. 5: PROVISIONAL REMEDY that petitioner may take interested person is unjustly deprived of his rights in, or to
advantage of pending the proceedings for relief: the estate under administration, has always been
PRELIMINARY INJUNCTION. recognized as a sufficient ground for the grant of relief
from the order or judgment thus fraudulently procured.
How many hearings does the court have? TWO.
(1) To determine whether the judgment, etc. should be

set aside. ANG LAM V. ROSILLOSA (1950): it can be the subject of
(2) If the decision thereon is in the affirmative, hearing
an annulment of judgment.
on the merits of the principal case, where trial de
novo is conducted.
o Potenciano Rosillosa, by virtue of a homestead
patent, sold a parcel of land to Maximo Alpay. Then
SEC. 7: IS TRIAL DE NOVO ALWAYS THE
Alpay sold it to Eugenia Peregrina. Then later on,
CONSEQUENCE OF GRANTING A PRJ? Not Rosillosa, the original owner instituted an action
necessarily. against Peregrina for legal redemption under the
provisions of the Public Land Act (because of the
 If the petition is directed against an order or
strong public policy under the Constitution). Upon
proceedings of the court, as when the appeal is petition of Rosillosa that defendant Peregrina
dismissed and appellant questions the dismissal of cannot be found, the judge ordered that said
the appeal under RULE 38, and the petition is
defendant be summoned by publication in the
granted, the appellant simply PERFECTS His
Manila Chronicle. The defendant having failed to
appeal, as if no previous dismissal was ever taken appeal, she was declared in default. TC, after
at all. receiving evidence, rendered a decision ordering
Peregrina to execute a deed of resale in favor of
Rosillosa, as it was sold within the prohibited period.
In general, period of appeal is 15 DAYS. Now, the It turned out that Peregrina died several years
th
appellant filed his notice of appeal on the 16 day. It was before the action was commenced. Thereafter, Ang
dismissed, as an appeal can only be filed during that Lam, the administrator of the estate of deceased
period. It turned out later on that the last day of appeal fell Peregrina filed a petition praying that judgment be
th
on a Sunday, in which case, the last day is on the 16 set aside on the ground that the court has not
day, but the court did not take note of that. Therefore, the acquired jurisdiction over the person of the
appeal has been perfected on time or seasonably filed. deceased. TC denied the petition on the ground,
among others, that the petition to set aside was
o MISTAKE „yun. presented after the lapse of six (6) months upon
o But no trial de novo. finality provided under RULE 38.
o In relation to SEC. 14, RULE 14, when the
defendant is an unknown defendant or his
OTHER MODES OF ATTACKING A JUDGMENT: RULE whereabouts cannot be known even by due
47. diligence, alternative remedy: summons by
publication.
o SC: it did not acquire jurisdiction.
ANURAN V. AQUINO (1918): Anuran, the widow of o The res / property is in the Philippines.
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o So bakit hindi pwede? o The remedy under RULE 38 is available only

o Like in CHING, the defect here is that the defendant against a judgment rendered by MTC / RTC.
was already deceased. o It is not a remedy available to the judgments of the
 As it is a process of conversion from in CA and SC.
personam to in rem. o When the loss of the remedy at law is due to the
 You cannot convert the action if the party’s negligence, or a mistake made of the proper
defendant is already deceased. procedure, otherwise, the petition for relief will be
 If INCONVERTIBLE: only natural or juridical tantamount to reviving the right of appeal which has
persons can be parties to action. If a person already been lost, either because of negligence or
is deceased, he ceased to be a person. So mistake.
how can you convert something from in
personam to in rem when you cannot have NOTE: The procedural change in Rule 38 is in line with
an in personam action in the first place? Rule 5, prescribing uniform procedure for municipal and
 It presupposes that the defendant is alive. regional trial courts and designation of
o It never acquired jurisdiction. municipal/metropolitan trial courts as courts of record.
o Bound by the 60-6 month period? NO, as it goes to While Rule 38 uses the phrase "any court", it refers only to
the very jurisdiction of the court over the person of municipal/metropolitan and regional trial courts.
the defendant.
o Since petitioner was not a party to the original case The procedure in the Court of Appeals and the Supreme
(administrator of the estate), and he did not seek Court are governed by separate provisions of the Rules of
relief from judgment on the ground of FAME, his Court and may, from time to time, be supplemented by
ground being lack of jurisdiction over the person for additional rules promulgated by the Supreme Court
annulment of judgment, RULE 38 to a certain extent through resolutions or circulars. As it stands, neither the
is NOT applicable here. Rules of Court nor the Revised Internal Rules of the Court
of Appeals 25 allow the remedy of petition for relief in the
NOTE: A judgment rendered by a court which has not Court of Appeals.
acquired jurisdiction either over the subject matter or over
the person of the defendant, is void. A void judgment may
be assailed or impugned at any time either directly or
collaterally, by means of a petition filed in the same case ANURAN V. AQUINO (1918): example of fraud.
or by means of a separate action, or by resisting such
judgment in any action or proceeding wherein it is invoked. NOTE: There can be no question as to the right of any
person adversely affected by a judgment, to maintain an
action to enjoin its enforcement, and to have it declared a
AFFIDAVIT OF MERIT: nullity, on the ground of fraud and collusion practiced in
the very matter of obtaining the judgment, when such
fraud is extrinsic or collateral to the matters involved in the
SUZARA V. CALUAG (1962): issues raised at the trial which resulted in such judgment;
and fraudulent collusion between an administrator and a
NOTE: In order that a motion may be considered as a third person resulting in an order or judgment whereby an
petition for relief, the following requisites must be present: interested person is unjustly deprived of his rights in, or to
the estate under administration, has always been
(1) it must be verified; recognized as a sufficient ground for the grant of relief
(2) it must be filed within 60 days from the time from the order or judgment thus fraudulently procured.
petitioner learns of the decision but not more than 6
months from entry thereof; and
(3) the petition must be accompanied by affidavits of
merit showing the fraud, accident, mistake or GORDULAN V. GORDULAN (1961): no recital of facts
excusable negligence relied upon and the facts constituting FAME and good defense.
constituting petitioner's cause of action or defense.
o The petition for relief was denied.
When petitioner's motion for new trial is verified and sets o While the petition was duly sworn and did contain a
forth his special defense as well as the facts on which it is recital of fact that the land in question was owned in
based insinuating that the amounts claimed are not true common by the plaintiff and defendant, there was
and correct and part thereof constitutes a violation of the nothing to show that petitioner’s failure to join to
Usury Law, the trial Court cannot deny petitioner's right of each of the defendant was due to FAME, such that
appeal from the order denying said motion for new trial he was prevented from presenting his case
unless it appears that the appeal is flagrantly frivolous. properly.
NOTE: Rule 38 of the Rules of Court is a special remedy

and the requirements therein set forth are considered as
MESINA V. MEER (2002): the remedy of relief from conditions sine qua non to the proper allowance of relief.
judgment is available only against judgments of the Section 2 and 3 thereof are explicit, and require not only a
RTC/MTC, not judgment of the CA. sworn statement of the facts constituting petitioner's good
and substantial defense, but likewise a showing that the
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failure to file an answer was by reason of fraud, accident, PROCEDURE: There must be a motion duly filed.
mistake or excusable negligence, while in the case at bar,
appellant's petition for relief contains a recital of facts, duly  State that the judgment has already been final and
sworn to by him, that the lot in dispute is owned in executory: that there was failure to appeal the
common by the plaintiff and the defendant in equal shares, same.
nothing is offered to show that there was fraud, mistake,  Must serve a copy to the adverse party (3-day
accident or excusable negligence in the failure of the notice rule, RULE 15).
lawyer to timely join issues with the plaintiff. Hence, the  Is this a litigious motion? YES, as the other party
petition was correctly denied. has the right to oppose the motion if the judgment is
not yet final and executory and prejudicial to him.
If an appeal has been made: the judgment shall be

ARCILLA V. ARCILLA (1985): 60 DAYS and SIX executed after it has been finally resolved.
MONTHS.
 After finality.
o In order for a relief under RULE 38 to be  GENERAL RULE: an appellate court can never
entertained, the petitioner must show that he has issue the writ of execution.
strictly complied with SEC. 3 in the periods.  The application of the writ of execution
o LESSON: The general allegation made therein to must be applied for in the court of origin.
the effect that "petitioner has a good and valid  WHERE: COURT OF ORIGIN.
defense considering that the late Segunda O. Vda.  HOW: on motion of the judgment obligee
de Arcilla voluntarily and willingly executed the with notice to the adverse party.
document of Sale", is not sufficient compliance with  SUPPORTING DOCUMENTS TO BE
107
the rules. ATTACHED:
 Sabihin mo why. 1) Certified true copies of the judgment/s
or final order/s sought to be enforced;
NOTE: The rule, therefore, is that in order for a petition for and
relief filed under Rule 38 to be entertained by the court, 2) The entry thereof issued by the
the petitioner must satisfactorily show that he has faithfully appellate court (SEC. 2, RULE 36).
and strictly complied with the provisions of said Rule 38.  Even when the records of the case has not
Consequently, in assailing the lower court's dismissal of yet been remanded, unlike in the old Rules.
his petition for relief for having been filed out of time, it is  PAR. 3: appellate court may direct the court of
incumbent upon herein petitioner to show that the said origin to issue the writ of execution.
petition was filed within the reglementary period specified  On motion in the same case, when the
in Section 3, Rule 38. He has failed to do so, instead he interest of justice so requires.
argues on the merits of his petition for relief, without first  But the appellate court cannot issue the
showing that the same was filed on time in the court writ of execution.
below. On this ground alone, the instant case should be
dismissed. GENERAL RULE: if not yet final, execution cannot issue.
108
 SEC. 4 : EXCEPTIONS WHERE THE
APPELLATE COURT MAY ISSUE THE WRIT:
109
EXECUTION PENDING APPEAL :
SUZARA V. CALUAG (1962): no affidavit of merit. 110
1) For INJUNCTION : to enjoin one from
causing irreparable injury.
2) RECEIVERSHIP: to preserve the property in
OCTOBER 17, 2016 the hands of a neutral person called a
receiver.
111
3) ACCOUNTING ;
112
RULE 39: EXECUTION, SATISFACTION AND EFFECT 4) Award of SUPPORT ;
OF JUDGMENTS 5) Such other judgment as are now or may
thereafter be declared as immediately
107
RULE 39: EXECUTION: Even if the records had not yet been remanded to court of origin.
108
Unless otherwise ordered by the trial court. And the appellate court
SEC. 1: EXECUTION AS A MATTER OF RIGHT: on may modify, suspend, etc. the same.
109
motion, upon a judgment or order that disposes of the REASON: As the records are with the appellate court; it is still
action or proceeding upon the expiration of the period pending appeal.
110
The court will issue this, because if it will not it will cause damage /
to appeal therefrom if no appeal has been duly
injury, although without prejudice to appeal the same.
perfected.
EXAMPLE: action for injunction against a factory near your house
 If an appeal has been taken, the judgment must be emitting smoke, and it was granted. If you will still wait for the appeal,
executed if it is finally resolved. you would have died of lung cancer already.
 It must have been FINAL AND EXECUTORY. 111
EXAMPLE: action for partition and accounting of the fruits.
112
By the time natapos ‘yung appeal, hindi na nakaaral yung bata.
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executory shall be enforceable after their court, except to execute court to do with respect to
execution, unless otherwise declared by the the judgment. the merits of the case.
court: Example: An order granting Example: An order denying
a. Order of expropriation the MTD of the defendant. the MTD: it leaves
b. Ejectment (forcible entry or unlawful something else to be done
detainer) → Pre-Trial, Trial,
Judgment.
 UNLESS otherwise ordered by the TC, or
subject also to the discretion of the appellate
court.
OLYMPIA V. COURT OF APPEALS (1989): The
 AC before whom the case is heard in appeal
may modify, suspend, restore, or grant the insurance company bought some typewriters from
same. Olympia, payable on installment, secured by chattel
mortgage on the typewriters. For failure to pay the
NOTE: they must by necessity be implemented amortizations, Olympia filed a replevin suit with prayer for
immediately, otherwise, they will cause irreparable injury writ of preliminary replevin. The court issued the writ of
to one of the parties. preliminary replevin and ordered the sheriff to repossess
the typewriters. The sheriff implemented the writ. The
typewriters were delivered back to Olympia. Later on,
there was a join motion by the parties to have the case
ROQUE V. DELGADO (1954): Delgado is the owner of a
dismissed, as the parties will pursue the settlement of the
cockpit. Then Secretary of Interior issued an order to stop case (dismissal pursuant to SEC. 2, RULE 16), which the
the operation of the cockpit, as it is within a prohibited court granted. However, since no settlement was arrived
radius of 200M. Now, Delgado contested the order and at by the parties, Olympia filed a motion to revive the case.
filed an action for injunction, with preliminary injunction. It was revived, then eventually it was dismissed. After it
The TC issued the preliminary injunction to stop the
was dismissed, a year later, the insurance company
implementation of the Order of the Secretary. However,
sought to have the typewriters returned, which the TC
after trial, the judge dismissed the case, the judgment granted.
saying that the cockpit was indeed the prohibited radius.
The writ of preliminary injunction is also dissolved.
o ISSUE: Did the court commit GAD when it ordered
However, Delgado filed a Motion to Re-Impose the
the return of the typewriters? NO.
Preliminary injunction Pending Appeal, which the TC o The order of dismissal, although upon joint motion
granted. of the parties, was a final order as it disposed of
the case.
o ISSUE: WON the TC had such authority? YES,
o EFFECT UPON FINALITY OF THAT ORDER: the
UNLESS OTHERWISE ORDERED BY THE TC. TC loses jurisdiction over the case, but without
o TC had the authority to re-issue, IN ANTICIPATION prejudice (SEC. 2, RULE 17).
of an appeal.
 Can it revive the case? NO.
 APPLICABLE only in the first 4: injunction,
 Although that dismissal was without
receivership, accounting and support (for
prejudice, the only remedy is to refile the
Escolin only).
case and pay docket fees again.
 For other provisions in special, governed by
o How about the order of the court GRANTING the
specific rules, so the special rule prevail over
return to the insurance company of the typewriters?
the general rules. Can it be ordered by the court? YES, as it is to
execute the final judgment / order of the court.
NOTE: Under section 4, Rule 39 of the Rules of Court,
o The preliminary writ was merely an INCIDENTAL
when an appeal is taken from a judgment granting,
order issued by the court → deemed also abrogated
dissolving or denying an injunction, the trial court, in its upon the dismissal of the main case.
discretion, may make an order suspending, modifying,  Since there is no more preliminary writ or
restoring, or granting such injunction during the pendency
replevin, the court ordering the return was
of the appeal. Although this provision speaks of an appeal merely to execute the final order of
being taken and of the pendency of the appeal, the court dismissal.
may restore the injunction before an appeal has actually  FINAL ORDER: one that disposes of the
been taken. As a matter of fact there is authority to the
case.
effect that the trial court may restore a preliminary
o Here, the return was merely to execute the order.
injunction in anticipation of an appeal. o It can be so done by the court as the writ of
preliminary replevin is merely incidental to the main
case such that the dismissal of the main case
 FINAL V. INTERLOCUTORY ORDER: carries with it the dismissal of all the incidental
orders issued by the court in the case that was
dismissed.
FINAL ORDER INTERLOCUTORY ORDER
NOTE: That the lower court retained jurisdiction to carry
An order which disposes An order which does not into effect its final and executory order of December 15,
of the case, that nothing disposes of the case, that 1972 is beyond cavil for while Alpha's motion was filed
more need be done by the there is still more for the three (3) years after the issuance of said dismissal order,
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the same may still be taken cognizance of by the lower AND the expiration of the time to
court in accordance with Section 6, Rule 39 of the Rules of appeal by the other parties.
Court which states: Sec. 6. Execution by motion or by
independent action. — A judgment may be executed on
motion within five (5) years from the date of its entry or ASSOCIATED BANK V. GONONG (1987): Nov. 3: RTC
from the date it becomes final and executory. After the of Manila rendered a decision in favor of plaintiff Bank
lapse of such time, and before it is barred by the statute of against defendants. Nov. 5: defendant Role filed Notice of
limitations, a judgment may be enforced by action. Appeal and on Nov. 4, the other defendant appealed. Nov.
19: plaintiff bank filed Motion for Execution Pending
Appeal. Dec. 16: TC denied execution on the theory of the
SO, in a case pending appeal, judgment is NOT YET TC Judge that it cannot anymore issue such execution
executory. because by the perfection of the appeal, the court has lost
jurisdiction over the case.
 REASON: the appellate court still has to resolve it.
o SC: NO.
SEC. 2: DISCRETIONARY EXECUTION: even if the o REASON: when plaintiff filed his execution, it has its
judgment is not final and executory, nonetheless, the own 15 days within which to ask for execution
prevailing party may ask for EXECUTION PENDING pending appeal.
APPEAL/discretionary execution. o When the court issues its notice of judgment / final
order, parties do not necessarily receive it on the
 REQUIREMENTS: same date, even if sent by registered mail on the
1) On motion of the prevailing party; same day.
2) With notice to the adverse party; o Immediately upon receipt on Nov. 10, counsel for
3) To be filed in the TC: the defendant perfected his appeal five days later.
a. While it has jurisdiction over the o May the court still entertain execution pending
case; and appeal? YES, as the other party who received the
b. In possession of either the original notice on a different day has 15 days to which to
record or record on appeal as the seek execution pending appeal.
case may be, at the time of the
filing of such motion. NOTE: The plaintiff or plaintiffs may not deprive the
 IN ITS DISCRETION, order execution, even if defendants or co-plaintiffs and neither may the defendant
before the expiration for period for appeal. or defendants deprive the plaintiff or co-defendants of the
 WHEN TC HAD LOST ITS JURISDICTION: may be right to file a motion for reconsideration or to move for a
filed in the appellate court → UPON GOOD new trial or an execution pending appeal by immediately
REASONS, stated in the special order, after due filing a notice of appeal. The filing of an appeal by a losing
hearing. party does not automatically divest the party favored by a
 SUBSTANTIVE REQUIREMENT. decision of the right to move for a more favorable decision
 WHEN FILED IN THE TC: provided that the two or to ask for execution pending appeal. It is only after all
conditions are still present. the parties' respective periods to appeal have lapsed that
 WHEN THE COURT LOSSES JURISDICTION the court loses its jurisdiction over the case. As pointed
OVER THE CASE (Sec. 9, Rule 41): out in Universal Far East Corporation v. Court of Appeals
 There are two kinds of ordinary appeal: (131 SCRA 642) the period when a court considers and
1) Appeal by mere notice of appeal; acts upon a motion for execution may take some time. As
2) Appeal by record on appeal a matter of fact, the resolution of a motion may take place
 PERFECTION OF APPEAL: long after the expiration of the reglementary fifteen-day
1) NOTICE OF APPEAL: deemed period for appeal.
perfected as to him upon the FILING
of notice of appeal in due time.
 When MR is filed: NEYPES
RULING (fresh period) 15
days after receipt of the denial ONG V. COURT OF APPEALS (1991): the mere filing of
of the MR. the notice of appeal does not divest the court of its
2) RECORD ON APPEAL: Deemed jurisdiction over the case.
perfected as to him with respect of the
subject matter thereof upon o PROVIDED such motions are filed within 15 days
APPROVAL of the record on appeal from notice by said parties of the decision of the
by the TC. court.
 LOSS OF JURISDICTION OF THE TRIAL
COURT: NOTE: The mere filing of appellant's notice of appeal does
1) NOTICE OF APPEAL: Upon not divest the trial court of its jurisdiction over the case.
perfection of the appeal filed in due The court may still take cognizance of the other party's
time AND the expiration of the time to motion for new trial under Rule 37, if he should opt to file
appeal by the other parties. one, or, as in the instant case, a motion for execution
2) RECORD ON APPEAL: Upon pending appeal, provided of course, such motions are filed
approval of the records on appeal within 15 days from said party's notice of the decision.
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What is crucial to determine is the timeliness of the filing of records are in the court, even if it has
the motion for execution pending appeal (Sonia Industries, lost jurisdiction of the case.
Inc. v. Wasan, Sr., supra).  If at the time of the filing of application of the
motion, it no longer has jurisdiction, HINDI NA
PWEDE.
 MUST CONCUR:
1) That the TC has still has jurisdiction of the GOOD REASON: other than the merits of the case.
case;
2) Has possession of the original record or  Execution pending appeal cannot issue on the
record on appeal. basis of the merits of the judgment being appealed.
 If otherwise, then, the general rule is that any
SEC. 9, LAST PAR., RULE 41: RESIDUAL prevailing party can ask for execution, kasi
JURISDICTION: in either case (when the court has lost panalo siya.
its jurisdiction by notice of record on appeal), prior to the  It should be other than the merits of the
transmittal of the original record or on record on appeal, case, which is the very subject of the appeal.
the court may:  And the court can never deny an appeal on
the ground that is frivolous.
(1) issue orders for the protection and preservation of  Is the filing of the bond a good reason to grant
the rights of the parties which does not involve any execution pending appeal? NO.
matter litigated in the appeal;  BEFORE, yes.
(2) approve compromises;  BOND: to protect; so that in the event that
(3) permit appeals of indigent litigants; the judgment is reversed, that will answer for
(4) order execution pending appeal in accordance with the damages suffered by the party against
SEC. 2, RULE 39; and whom the execution pending appeal was
(5) allow withdrawal of appeal. issued.
 NOW, no more.
While the TC/court a quo has already lost jurisdiction over
the case, nonetheless it still retains residual jurisdiction.
ONG V. COURT OF APPEALS (1991): execution pending
 Prior to the transmittal of the original record / record appeal cannot be premised on:
on appeal, the court may order, among others,
EXECUTION PENDING APPEAL. a. The appeal is frivolous and dilatory: the authority
 ONE CONDITION: prior to the transmittal. pertains to the appellate court.
 SEC. 2, RULE 39: a court may issue EXECUTION b. That the bond required by the court has been
PENDING APPEAL, provided that two conditions posted by the prevailing party: would make the
concur: issuance routinary.
(1) The TC has not yet loss its jurisdiction over
the case; and RATIONALE why execution pending appeal is not favored:
(2) The records are still with it. while there are remedies for restitution, nonetheless, there
 What is the difference between the two? is a possibility that the judgment will be in whole or in part
 Will a court issue an order for execution pending be reversed, and if that happens, it will result in damage to
appeal even if it has lost jurisdiction? YES. the party against whom execution was issued.
 ―In either case‖ → in either case when the
court has lost jurisdiction, as long as the NOTE: Where the reason given is that an appeal is
original record / record on appeal has not yet frivolous and dilatory, execution pending appeal cannot be
elevated. justified. It is not proper for the trial court to find that
 TWIN REQUIREMENT: Required only at the time an appeal is frivolous and consequently to disapprove
of the filing of the motion of execution pending it since the disallowance of an appeal by said court
appeal. constitutes a deprivation of the right to appeal. The
 BEFORE it has lost jurisdiction: it can issue. authority to disapprove an appeal rightful pertains to the
 REQUIREMENT: records are still in appellate court (Heirs of Gavino Sabenal v. Hon. Benjamin
the court of origin. Gorospe, G.R. No. 50168, September 30, 1988, 166
 Jurisdiction over the case is not a SCRA 145). Having declared that the trial judge may not
requirement at the time of the rightfully determine that an appeal from its own decision is
issuance of the order execution frivolous or dilatory, it is clear that the writ of execution
pending appeal, but only upon the pending appeal would be premised solely on the bond
filing of such motion. posted by Sarmiento.
 In other words, the TC can issue
execution pending appeal if at the In the case of Roxas v. Court of Appeals (157 SCRA 370),
time of the filing of the motion, it still we clarified the doctrine as follows: ". . . to consider the
has jurisdiction and the records are mere posting of a bond a 'good reason' would
with it. precisely make immediate execution of a judgment
 BUT, insofar as the actual issuance of pending appeal routinary, the rule rather than the
the order allowing execution pending exception. Judgments would be executed immediately, as
appeal, all that is required is that the a matter of cause, once rendered, if all that the prevailing
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party needed to do was to post a bond to answer for

damages that might result therefrom. This is a situation, to  EXAMPLE of good reason: For the election
repeat, neither contemplated nor intended by law. offenses.
ENGINEERING CONSTRUCTION, INC. V. NAPOCOR

VALENCIA V. COURT OF APPEALS (1990): Valencia (1988): Judgment was rendered in favor of petitioner,
filed action for rescission of the lease. Meanwhile, the term ordering NPC and Meralco to pay the following: actual and
of the lease expired and the defendants peaceably compensatory, consequential, and exemplary damages,
surrendered the fishpond. TC: declared the complaint attorney’s fees. Before perfecting its appeal, a bond was
moot and academic, and the only remaining issue for filed by petitioner for execution pending appeal, and the
adjudication is only the amount of damages. In due same is granted.
course, the court awarded damages, attorney’s fees and
costs. The defendants received a copy on Jan. 3, and o SC: REQUISITES FOR THE EXECUTION TO BE
plaintiff received on Jan. 10. Jan. 10 filed notice of appeal. ALLOWED:
Jan. 17: the defendants filed an execution pending appeal, 1) Motion with notice to the adverse party was
offering to post a bond, for which they did. TC granted the made;
motion on the ground that ―an offer of a bond for 2) Good reason/s;
immediate execution is a good ground for execution 3) Good reason/s must be stated in the order.
pending appeal.‖ o With respect to the damages aside than actual
damages, the TC has exceeded the limits of its
o SC: FIRST ISSUE: may the court still entertain jurisdiction.
execution pending appeal? YES, motion for  Execution must have been postponed until
execution field before the last day to appeal. the time as the merits of the case have been
o SECOND ISSUE: the rule is now well-settled that determined in the regular appeal.
the mere filing of a bond by the successful party is  In the fairly recent case of RCPI, et al vs.
NOT a good reason for ordering execution pending Lantin, "The execution of any award for moral
appeal. and exemplary damages is dependent on the
 Certiorari lies when execution is not founded outcome of the main case. Unlike actual
upon good reasons. damages for which the petitioners may
 That the losing party appealed the judgment clearly be held liable if they breach a specific
does not bar the certiorari action, as an contract and the amounts of which are fixed
appeal cannot be a remedy for such and certain, liabilities with respect to moral
premature execution. and exemplary damages as well as the exact
o THIRD ISSUE on what may be the subject, amounts remain uncertain and indefinite
assuming there is good reason, of execution pending resolution by the Intermediate
pending appeal: awards for moral and exemplary Appellate Court and eventually the Supreme
damages CANNOT be the subject of execution. Court. The existence of the factual bases of
o ONLY ACTUAL DAMAGES: because of the these types of damages and their causal
possibility of its reduction, if not elimination by the relation to petitioners' act will have to be
appellate court, it is still considered as unliquidated determined in the light of the assignments or
damages. errors on appeal. It is possible that the
 UNLIQUIDATED: not yet verifiable, petitioners, after all, while liable for actual
depending upon there is bad faith, etc. damages may not be liable for moral and
 ACTUAL: it is verifiable. exemplary damages. Or as in some cases
elevated to the Supreme Court, the awards
NOTE: The rule is now settled that the mere filing of a may be reduced."
bond by the successful party is not a good reason for o Execution of any award for moral and exemplary
ordering execution pending appeal, as clarified in Roxas damages is dependent on the outcome of the case.
vs. Court of Appeals, et al., which we are constrained to
quote for the benefit of the parties: "It is not intended
obviously that execution pending appeal shall issue as a SEC. 3: STAY OF DISCRETIONARY EXECUTION: if the
matter of course. Good reasons, special, important, court has issued an order allowing execution pending
pressing reasons must exist to justify it; otherwise, instead appeal, may it be STOPPED / PREVENTED by the other
of an instrument of solicitude and justice, it may well parties? YES,
become a tool of oppression and inequity. But to consider
the mere posting of a bond a 'good reason' would  HOW: upon approval by the proper party of a
precisely make immediate execution of a judgment SUPERSEDEAS BOND.
pending appeal routinary, the rule rather than the  CONDITION: upon the performance of the
exception. Judgments would be executed immediately, as judgment or order allowed to be executed, in
a matter of course, once rendered, if all that the prevailing case it shall finally be sustained in whole and
party needed to do was to post a bond to answer for the in part.
damages that might result therefrom. This is a situation, to  HOW TO PROCEED WITH THE BOND: on
repeat, neither contemplated nor intended by law." motion with notice to the surety.
 With hearing.
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 Can you stop the implementation of a motion for properties in question.

execution pending appeal? YES, by filing of a o ISSUE: was that correct?
supersedeas bond. o SC: when a judgment is executed pending and
 In which case, pwedeng ma-execute iyan. subsequently overturned in the appellate court, the
party who moved for immediate execution will be
SEC. 4: EXCEPTIONS: shall be enforced, and not stayed. required to make specific restitution of the
property of the prevailing party may have acquired.
 GENERAL RULE: the effect of an appeal is that it
will stay execution of judgment. NOTE: When a judgment is executed pending appeal and
 UNLESS otherwise provided by law, or this Rules. subsequently overturned in the appellate court, the party
who moved for immediate execution should, upon return
Exceptions SUBJECT to the phrase: unless otherwise of the case to the lower court, be required to make specific
ordered by the TC / AC. restitution of such property of the prevailing party as he or
any person acting in his behalf may have acquired at the
LAST PAR.: The stay of execution shall be upon such execution sale. If specific restitution becomes
terms as to bond or otherwise as may be considered impracticable, the losing party in the execution
proper for the security or protection of the rights of the becomes liable for the full value of the property at the
113
adverse party. time of its seizure , with interest.
 If the TC suspends, modify, restore, grant While the trial court may have acted judiciously under the
injunction, etc., it shall be upon such terms as a premises, its action resulted in grave injustice to the
BOND or otherwise as may be considered for the private respondents. It cannot be gainsaid that it is
security and protection of the rights of the adverse incumbent upon the plaintiffs in execution (Arandas) to
party. return whatever they got by means of the judgment prior to
its reversal. And if perchance some of the properties might
SEC. 5: EFFECT OF REVERSAL: RESTITUTION / have passed on to innocent third parties as happened in
REPARATION: if a judgment s rendered by the TC, and the case at bar, the Arandas are duty bound nonetheless
execution pending appeal is granted, then on appeal it is to return the corresponding value of said properties as
reversed, balik, restitution ha. mandated by the Rules.
 RULES:
OCTOBER 24, 2016
ARANDA V. COURT OF APPEALS (1990): here, the CFI SEC. 5: RESTITUTION: effect of reversal.
of Bulacan rendered judgment ordering defendant De
Laras to reconvey to the plaintiffs Arandas several parcels RULES: if the purchaser is:
of land covered by 16 TCTs. De Laras appealed, but the
plaintiffs were granted execution pending appeal upon a (1) JUDGMENT OBLIGEE: he must return the property
P15,000-bond. By filing of such bond, the court issued to judgment obligor and pay reasonable rental
execution pending appeal. As a consequence, the TCTs value of the sale (JM PO PAOCO V. JUNCO,
114
were transferred in the names of the plaintiffs. 1926 ).
Furthermore, a jeepney belonging to the defendants was (2) Judgment obligor may elect, however, to affirm the
also sold to the public auction, and the amount of P42,000 sale, in which case, the judgment obligee accounts
was garnished and turned over to the plaintiffs. During the only for the purchase price: (HILARIO V. HICKS,
115
pendency of the appeal, the plaintiffs mortgaged EIGHT of 1919 ).
the 10 reconvened lots to Cruz. Then, again, they (3) If the JUDGMENT OBLIGEE cannot return it as it
mortgaged TWO more lots to Oxiles. When the loans already sold it to another person: account for the
matured, the plaintiffs failed to pay and redeem them, so full value of the property at the time of the levy plus
they were foreclosed and sold to the mortgagees Cruz and interest.
Oxiles. When the period to redeem expired, these
properties were consolidated in the mortgagees. Later on,
113
defendant filed a notice of lis pendens. In resolving the Escolin did not like this.
114
appeal, the AC reversed the decision of the TC, and said When a judgment is prematurely executed pending appeal and the
decision was affirmed by the SC. So now defendants filed cause is subsequently reversed in the Supreme Court, the plaintiff in
a motion to nullify the 16 titles transferred to the plaintiffs. the execution should, upon return of the cause to the lower court, be
However, in resolving the motion, the court ordered the required to make specific restitution of such of the property of the
cancellation of the titles covering the lots which were not judgment debtor as may have been acquired at the execution sale by
the plaintiff or by any other person acting in his behalf; and if specific
sold to Cruz and Oxiles.
restitution becomes impracticable, the plaintiff in the execution
becomes liable for the full value of the property at the time of its
o Hindi na maibalik yan. seizure, with interest.
 REASON: they are purchasers in GF for 115
Although, as above stated, a judgment debtor may, upon reversal,
value. require the creditor to make specific restitution of the property
 The annotation of the notice of lis pendens purchased at the sheriff's sale by the creditor, the debtor nevertheless
was made only after the buyers at public has the right of election to affirm the sale as to such property and
auction have consolidated ownership on the compel the creditor to account for the same at the value for which he
bought it.
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(4) If the purchaser in the execution sale is a THIRD b. PERSONAL ACTION: follow the general
PERSON: judgment obligee shall be liable for the rule.
obligor for the purchase price, plus interest.  WHO ARE THE PARTIES TO THE ACTION: same
(5) If the judgment is MODIFIED by merely reducing parties must appear in the action.
the recovery: the judgment obligee is only liable for  Solidary judgment: revived and enforced against
the excess between the amount of the sheriff’s sale any of the debtors.
and the amount finally awarded.
 Happens if there is execution pending EXECUTION BY MERE MOTION AND BY
appeal and the judgment of the trial court is INDEPENDENT ACTION:
reversed, totally or partially annulled on
appeals.
DAVID V. EJERCITO (1976): Gomez filed an ejectment
SEC. 6: HOW AND WHEN MAY A JUDGMENT BE suit against David and David was declared in default for
ENFORCED: failure to answer. May 12, 1969: judgment was rendered
ordering David to vacate the premises and to pay
(1) By MERE MOTION at any time before the reasonable rentals. Sept. 24, 1969: writ of execution was
expiration of the period of FIVE (5) YEARS from the issued but defendant refused to comply. March 11, 1970:
date of entry of judgment. motion for the demolition of the defendant’s house was
(2) By ACTION after that period but before the lapse of filed, and the corresponding order was issued by the court,
the statute of limitation (10 YEARS). but defendant still refused to comply with the other. An
alias writ was issued, but the defendant again resisted it.
STATUTE OF LIMITATIONS ON A JUDGMENT: TEN March 25, 1975: another order demolition was issued.
(10) years. This time defendants promised in writing voluntarily
removed his house after 30 days. However, April 11,
 After the period of 5 years, and the judgment of the 1975, instead of complying, he filed a motion to recall
court is not enforced by mere motion, then the demolition on the ground that the judgment was
judgment becomes a DORMANT JUDGMENT. unenforceable, due to lapse of the 5-year period since the
 It is one that has not been enforced by day of finality of the judgment. TC denied the motion.
motion within 5 years after its entry.
 Therefore, it is reduced to a mere right of o SC: the writ of execution may be enforced by mere
action in favor of the judgment obligee. motion even after the lapse of the 5 years where the
defeated party himself was the one who caused the
NATURE AN ACTION FOR REVIVAL/ENFORCEMENT delay in the execution of the judgment.
OF A DORMANT JUDGMENT: is an ORDINARY CIVIL o The delay here was caused by the defendant.
ACTION. o What is being considered here that would render
the judgment dormant is INACTION on the part of
 PURPOSES: two-fold: the judgment-obligee.
(1) To revive the dormant judgment; and  But here, he took all the steps to have the
(2) To execute the judgment reviving it. judgment enforced.
 The rights of the judgment obligee depends now on  The delay was caused by the judgment
the second judgment. obligor.
 Being an ordinary civil action, therefore, it is subject
to all defenses: objections, and counterclaims, NOTE: Where all the delay in the execution of a final
which the judgment obligor may have, EXCEPT judgment in an ejectment suit lasting for almost eight (8)
that no inquiry can be made as to the merits of the years is due to defendant's own acts, the plaintiff's motion
first judgment. for alias writ of execution and for demolition filed after the
 Nature of the first judgment: res judicata. five-year limitation within which a decision may be revived
 It is subject to all the defenses. by mere motion, for reasons of equity, is treated as
 EXCEPT those defenses and objections the constituting in effect an action to revive the said judgment
inquiry of which goes to the merits of the first under Section 6, Rule 39 of the Rules of Court and a
judgment → that cannot be raised. substantial compliance therewith.
 The defense of lack of jurisdiction, collusion,
fraud, prescription may be set up by the
judgment obligor.
 EXCEPTION ON THE RULE ON DORMANT
NAPOCOR V. COURT OF APPEALS (1992): FIRST
JUDGMENT: judgment for SUPPORT → does not
CASE: a civil case rendered by the court of Manila
become dormant nor does it prescribe, except as to
ordering Sebastian and Associates to pay PCI Bank a
the installments not collected during the period certain sum of money. That decision became final and
fixed by the statute of limitation. executory on Mar. 2, 1972. SECOND CASE: Sebastian
 Enforceable by mere motion at any time.
sued NAPOCOR and Sebastian was able to obtain a
 VENUE OF AN ACTION TO ENFORCE A
judgment against for a certain amount. This judgment
DORMANT JUDGMENT: subject to the same rules became final on June 20, 1976. July 20, 1976: PCI Bank
as in civil actions: obtained a writ of execution in the first case and pursuant
a. REAL ACTION: where the property is
located.
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thereto, a notice of garnishment (form of execution where

116
you go against the debtor of the judgment obligor) was o The LRC on May 14, 1958, on motion of the
issued to the Treasurer of NAPOCOR levying upon goods applicant, ordered the revival of the Nov. 28, 1931
and monies in the possession of NAPOCOR owing the decision in a land registration case (decree of
Sebastian. March 11, 1976: TC ordered NAPOCOR to pay registration became final and executory). On May
PCI Bank. NAPOCOR made partial compliance by paying 14, 1958, the court ordered the revival of the
a certain sum. Subsequent attempts to compel payments decision, only by mere motion. The order is now
were turned down. November 8, 1988: PCI Bank field being assailed NOT by independent action on the
motion to require NAPOCOR to satisfy the judgment. This ground that the assailed decision, which was issued
was opposed on the ground that the writ of execution has over ten years earlier, cannot be enforced except by
expired. The period to revive the judgment had already action.
prescribed. o SC: Sec. 6 of Rule 39 refers to CIVIL ACTIONS
only, and is not applicable to special proceedings,
o NOTE: judgment became final on March 2, 1972, such as a land registration case.
and PCI only obtained a writ of execution on July  REASON: the purpose of which (special
20, 1976. proceedings) is to establish status, condition
o SC: so the prescriptive period for enforcement of a or fact, or right, and the ownership of the
final judgment by ordinary action is TEN YEARS person over the land after ownership has
computed from the time the judgment became final been proved and confirmed by judicial
and the lifetime of the writ of execution THEN was declaration, no further proceedings is needed
60 days after receipt by the levying officer. to enforce the same, except if the adverse
 NOW, no more life time of 60 days. party is in possession of the land and the
o The judgment obligor (PCI Bank) exerted all its winning party decides to oust him therefrom.
efforts to have the judgment satisfied, but the delay  Once the decree of registration is final, you
in fulfilling the notice of garnishment can be can ask its enforcement ANYTIME, even by
attributable only to the delaying acts of NAPOCOR. mere motion, even after the lapse of 10
 So do not count that. years.
o TEST: who caused the delay. o What constitutes enforcement in this case? It is the
issuance of the original certificate of title.
NOTE: However, in the case at bar, it was the petitioner  It is just evidence of title.
who caused the delay in the payment of the remaining  Can the registered owner not necessarily be
balance of the aforesaid Notice of Garnishment. the owner? YES.
Therefore, the delay of more than 10 years from the time
the judgment of November 26, 1970 became final and NOTE: The provision in the Rules of Court to the effect
executory should not be counted in computing the 5-year that the judgment may be enforced within five years by
period in executing a judgment by motion, since the delay motion, and after five years but within 10 years by an
was not respondent's doing but petitioner's. It is well- action (Sec. 6, Rule 39) refers to civil actions and is not
settled that: "In computing the time limited for suing out an applicable to special proceedings, such as land
execution, although there is authority to the contrary, the registration cases. This is so because a party in a civil
general rule is that there should not be included the time action must immediately enforce a judgment that is
when execution is stayed, either by agreement of the secured as against the adverse party, and his failure to act
parties for a definite time, by injunction, by the taking of an to enforce the same within a reasonable time as provided
appeal or writ of error so as to operate as a supersedeas, in the Rules makes the decision unenforceable against the
by the death of a party, or otherwise. Any interruption or losing party. In special proceedings the purpose is to
delay occasioned by the debtor will extend the time within establish a status, condition or fact; in land registration
which the writ may be issued without scire facias." proceedings, the ownership by a person of a parcel of land
is sought to be established. After the ownership has been
proved and confirmed by judicial declaration, no further
Can the revived judgment be revived again within ten proceeding to enforce said ownership is necessary, except
years from the revived judgment? YES. when the adverse or losing party had been in possession
of the land and the winning party desires to oust him
 The revived judgment may also be enforced by therefrom.
motion within five (5) years from the date of its entry
and thereafter by action before it is barred by the There is no provision in the Land Registration Act similar
statute of limitations. to Section 6, Rule 39 of the Rules of Court regarding the
execution of a judgment in a civil action, except the
proceedings to place the winner in possession by virtue of
STA. ANA V. MENLA (1961): action for revival of a writ of possession. The decision in land registration
judgment does not apply to land registration cases and case, unless the adverse or losing party is in possession,
other special proceedings the purpose of which is to becomes final without any further action, upon the
establish a status, fact or a right. expiration of the period for perfecting an appeal.
116
EXAMPLE: judgment obligor has a deposit in a bank. When you have
a deposit in a bank, it really is a loan in mutuum para iyung banko, CANONIZADO V. BENITEZ (1984): a judgment for
ipautang niya rin.
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CIVIL PROCEDURE
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support can still be enforced by mere notion for a writ of (2) state the name of the court, the case number and
execution notwithstanding the lapse of FIVE YEARS title, the dispositive part of the subject judgment or
provided for in SEC. 6. order; and
(3) require the sheriff or other proper officer to whom it
o REASON: Because said provision does NOT apply is directed to enforce the writ according to its terms.
to judgments for support.
Against the property of To satisfy the judgment,
NOTE: In the case at bar, although petitioner obtained the the judgment obligor with interest, out of the real
favorable judgment on January 21, 1969, she can still or personal property of
enforce the same by a motion for a writ of execution, NOTE: can be money such judgment obligor.
notwithstanding the lapse of the five-year period provided judgment.
for in Rule 39, Section 6 of the Rules of Court because a Against real or personal To satisfy the judgment,
judgment for support does not become dormant and the property in the hands of with interest, out of such
five-year period for executing it by motion does not apply personal representatives, property.
thereto. (Gumba vs. Juvenile and Domestic Relations heirs, devisees, legatees,
Court, 108 SCRA 93; citing Velayo vs. Velayo, L-23538, tenants, or trustees of the
July 21, 1967, 20 SCRA 734, 65 O.G. 2096). Furthermore, judgment obligor
since the obligation is a continuing one, the court never
loses jurisdiction to enforce the same. NOTE: judgment on real or
personal property.
For the sale of real or Apply the proceeds in
SEC. 7: IN CASE OF DEATH OF A PARTY: personal property to sell conformity with the
such property describing judgment, the material
(1) Death of the JUDGMENT-OBLIGEE: the it parts of which shall be
application may be applied for by his executor, recited in the writ of
administrator or successor-in-interest. NOTE: execution here is to execution.
(2) Death of the JUDGMENT-OBLIGOR: the judgment order the selling of real or
for recovery of real and personal property. personal property.
 Against the executor or administrator, For the delivery of the To deliver the possession
successor-in-interest of the judgment obligor. possession of real or of the same, describing it,
(3) Death of the JUDGMENT-OBLIGOR: after personal property to the party entitled thereto,
execution is actually levied upon any of his and to satisfy any costs,
property, the same may be sold for the satisfaction NOTE: an action to deliver damages, rents, or profits
of the judgment obligation, and the officer making title or possession. covered by the judgment
the sale shall account to the corresponding out of the personal property
executor or administrator for any surplus in his Example: unlawful detainer of the person against whom
hands. cases, or reconveyance, it was rendered, and if
 Money judgment is rendered here. plus damages, profits etc. sufficient personal property
 Read with SEC. 20 of RULE 3: ask for cannot be found, then out
enforcement in a manner provided for in this of the real property; and
Rules for prosecuting clams against the
estate, and NOT execution. In all cases, the writ of execution shall specifically state
 HOWEVER, why does (c) allow execution
the amount of the interest, costs, damages, rents, or
here to continue? Why not for prosecuting
profits due as of the date of the issuance of the writ, aside
claims against the estate of the deceased from the principal obligation under the judgment.
person?
 HERE, execution is also actually SECS. 9, 10, 11: ENUMERATION OF KINDS OF
levied upon any of his properties. JUDGMENTS:
 LEVY: creates a lien (SEC. 12, RULE
39).
SEC. 9: (1) IMMEDIATE PAYMENT ON
 However, if there is NO levy, prior to the
Judgment DEMAND: By demanding from the
death of the judgment obligor, then the court
FOR MONEY judgment obligor the immediate
that rendered the judgment may NOT
payment of the full amount stated in
enforce its judgment because it can only be
the writ of execution and all lawful
satisfied by prosecuting a claim against the 117
fees. (by the sheriff)
estate of a deceased person in a manner
provided for in this Rules. FORM OF PAYMENT: in cash, certified
bank check payable to the judgment
SEC. 8: FORM AND CONTENTS OF THE WRIT OF
obligee, or any other form of payment
EXECUTION:
acceptable to the latter.
(1) issue in the name of the Republic of the Philippines
from the court which granted the motion;
117
Under the OLD rules, wala iyan. Levy agad.
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(3) DELIVERY OR RESTITUTION OF

121
Sheriff shall receive the lawful fees and REAL PROPERTY ;
118
deposit them immediately. (4) REMOVAL OF IMPROVEMENTS
ON PROPERTY SUBJECT OF
122
(2) SATISFACTION BY LEVY: the EXECUTION;
sheriff will only proceed to levy SEC. 11: SPECIAL JUDGMENT: judgment that is
properties upon failure of the SPECIAL not covered by or mentioned in the two
judgment obligor to pay all or part JUDGMENTS proceedings sections.
of the obligation after a demand
has been made in letter (a). - It is not a judgment for money or for
specific acts.
If the judgment obligor does not exercise
the option, the officer shall: PROCEDURE:
a. levy on the personal properties, if

any, and SECs. 9 and 10 SEC. 11
b. then on the real properties if the
personal properties are insufficient. Directed to the Directed to the
sheriff for the party against
Real property, stocks, shares, debts, whom the
enforcement of
credits, and other personal property, or judgment was
the writ.
any interest in either real or personal rendered.
property, may be levied upon in like
manner and with like effect as under a
writ of attachment.
(3) GARNISHMENT: in the possession

and control of third parties.
HOW LEVY MADE: by serving upon the

third person of the notice of garnishment.
- Then await second notice to

deliver the amount (within TEN
DAYS).
The garnishee shall make a written report

to the court within five (5) days from
service of the notice of garnishment.
Can the bank here reveal the amounts of

the deposits? YES.
SEC. 10: (1) CONVEYANCE, DELIVERY OF
Judgment DEEDS, OR OTHER SPECIFIC
119
FOR ACTS : the court may direct the act 121
To deliver possession. EXAMPLE: accion interdictal. Here, the sheriff
SPECIFIC to be done at the cost of the must first demand for them to vacate within three (3) working days.
ACT disobedient party by some other Thereafter, he should oust them with the assistance of the police.
person appointed by the court and - Here, it is the act of delivering or restitution of real property.
the act when so done shall have like - Balik yung possession.
122
effect as if done by the party. Must be upon special order of the court, issued upon motion of the
(2) SALE OF REAL AND PERSONAL judgment obligee upon due notice and hearing and upon failure to
120 remove of the other party.
PROPERTY ;
- Here, you are removing improvements.
- There must be a special order of the court for that.
118
This provision is for the sheriff, kasi in the past, maraming - Removal or Break Open Order, when REQUIRED: that the
magnanakaw na sheriffs. execution relates to improvements constructed or planted by
119
If the judgment-obligor is required to reconvey a property through a the judgment obligor
deed of reconveyance, and he refuses, then the court may just order PROCEDURAL REQUIREMENTS:
another party to execute the conveyance and that act of the third party (1) There must be a motion to remove, destroy or demolish the
would be as if an act of the judgment-obligor. improvements field by the judgment-obligee (there must be a
hearing);
RECONVEY: the court may just issue an order (i.e. order the RD to (2) If after hearing, the court finds the motion meritorious, then it
cancel the title under the name of the judgment obligor and issue a issues an order (a) containing the reason for such order, then
new one in the name of the judgment obligor). (b) give the judgment obligor a period of reasonable time
120
As in an act for partition: the court may order that the property be within which to demolish or remove it.
sold and the proceeds will be distributed to the heirs. So the sheriff will (3) Only after the expiration of that reasonable period may the
sell. actual demolition, or removal be accomplished.
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CIVIL PROCEDURE
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If judgment Can be punished  If both parties are innocent: the one who will
obligor refuses to by contempt if suffer the loss is the one who gave occasion
comply, he disobeyed. for the loss.
cannot be  But that was not applied here.
punished by  The result of that is kawawa ang judgment-
contempt, as the obligee.
writ was directed o It was a difficult decision.
to the sheriff. o The Constitution also provides that no amount of
public funds shall be dispersed unless there is an
If the sheriff didn’t appropriation for it.
want to execute,  The court cannot even be asked to pay for it.
then he shall be
declared in NOTE: The attention of this Court has been called to the
123
contempt. bad practice of a number of executing officers, of requiring
checks in satisfaction of judgment debts to be made out in
their own names. If a sheriff directs a judgment debtor to
In no case shall the executing sheriff demand that any
issue the checks in the sheriff's name, claiming he must
payment by check be made payable to him. get his commission or fees, the debtor must report the
SEC. 9: sheriff immediately to the court which ordered the
execution or to the Supreme Court for appropriate
disciplinary action. Fees, commissions, and salaries are
paid through regular channels. This improper procedure
PAL V. COURT OF APPEALS (1990): a judgment was
also allows such officers, who have sixty (60) days within
rendered in favor of Amelia Tan against PAL for a sum of which to make a return, to treat the moneys as their
P25,000 plus P5,000 attorney’s fees. To satisfy the personal funds and to deposit the same in their private
judgment, PAL paid the amount in check, payable to the accounts to earn sixty (60) days interest, before said funds
sheriff, Emilio Reyes. However, the sheriff deposited the
are turned over to the court or judgment creditor (See
same to his account and absconded with the money. On Balgos v. Velasco, 108 SCRA 525 [1981]). Quite as easily,
motion, the court issued an alias writ of execution against such officers could put up the defense that said checks
PAL again. PAL contended that it already paid. had been issued to them in their private or personal
capacity. Without a receipt evidencing payment of the
o ISSUE: May another writ of execution issue? YES. judgment debt, the misappropriation of finds by such
o SC: the judgment was NOT satisfied and the officers becomes clean and complete. The practice is
issuance of an alias writ is proper. ingenious but evil as it unjustly enriches court personnel at
o But here the Court was divided: it was a split the expense of litigants and the proper administration of
decision. justice. The temptation could be far greater, as proved to
o According to the majority, the judgment was not be in this case of the absconding sheriff. The correct and
executed; kawawa naman „yung judgment-obligee. prudent thing for the petitioner was to have issued the
o The minority, on the other hand, said, bakit niyo checks in the intended payee's name.
naman sisihin ang PAL? Pinangalan nila sa sheriff
„yung cheke because he is an agent of the court. The pernicious effects of issuing checks in the name of a
 If you follow the rule on agency. person other than the intended payee, without the latter's
agreement or consent, are as many as the ways that an
123
EXAMPLES: artful mind could concoct to get around the safeguards
provided by the law on negotiable instruments. An angry
[1] Writ of certiorari: plaintiff files an action against the defendant. litigant who loses a case, as a rule, would not want the
Defendant filed a MTD on the ground that the court does not have winning party to get what he won in the judgment. He
jurisdiction over the subject matter. The TC denied the motion because would think of ways to delay the winning party's getting
it is of the opinion that it has jurisdiction. Defendant filed a petition for what has been adjudged in his favor. We cannot condone
certiorari to annul the order of the court denying the motion to dismiss, that practice especially in cases where the courts and their
then prohibition asking the appellate court to order the lower court not officers are involved. We rule against the petitioner.
to proceed with the case at it does not have jurisdiction, and
mandamus to order the court to dismiss the case, as it does not have
jurisdiction. CA granted the extraordinary writs. Then it is remanded to SEC. 10:
the TC for enforcement.
- That cannot be made by the sheriff as it does not have

authority over that. CASANOVA V. LACSAMANA (1979): this is an ejectment
- It is only the judge of the lower court who can stop the case. After the judgment became final and executory, the
proceedings and dismiss the case. plaintiff moved for the issuance of an order of demolition.
- If the judge refuses to comply with the writ issued by the The judge issued an order considered the motion
superior court, contempt ha. submitted without further argument. The defendant asked
for postponement of the hearing of the motion for
[2] May a spouse file for a petition of mandamus to compel the other demolition, but the judge denied it, saying that the order
spouse to comply with his conjugal obligations? Not proper, perhaps  was issued already considering the same submitted.
If allowed, but the husband refuses to comply, the sheriff cannot Thereafter, the court issued the demolition order.
compel him to perform.
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CIVIL PROCEDURE
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o ISSUE: is that correct?

o ISSUE: WON such was proper. NO. o SC: it is not disputed that no one was in the
o SC: he questioned order is VOID, having been apartment at the time the execution was carried in
issued without due hearing and without further effect, and the doors and windows, and other gates,
granting the petitioner a reasonable time within are padlocked.
which to remove his house from the premises, o In such instance, there was no need for the
because actual demolition may only be undertaken respondents to secure break open order, inasmuch
after the judgment obligor failed to demolish / as the character of the writ in their hands authorized
remove his improvements within a reasonable time. them to break open the apart if they cannot
o Here, the court did not give him a reasonable time: otherwise execute this command.
the court just issued an order. o In other words, it is in (d), delivery and restitution.
o PROCEDURAL REQUIREMENTS: motion and o So here, the writ was delivered.
hearing, and then the order itself must contain a o Under the NEW RULES: demand then give three (3)
period given to the judgment obligor within which to days, but before, nothing like that.
demolish or remove his improvements. o Moreover, there is merit in the position taken by the
 It is only upon failure of the obligor to comply respondent, manifested in a memorandum of
within that reasonable time, then, that is the authorities submitted to supplement his comment,
only time that the order of demolition may be that there is only one instance in the Rules of Court
implemented. which requires a special "break-open" order – that
referred to in Section 14 (now SEC. 3(d)), Rule 39.
NOTE: An order of demolition issued without hearing and o The situation contemplated under the foregoing
without granting the defendant a reasonable time within section is very much different from the case at bar.
which to remove the improvements he constructed on the  REASON: there is no building or structure
property subject of execution is null and void. Under constructed by the tenant demolished or
Section 14, Rule 39 of the Revised Rules of Court, the required to be demolished.
officer called upon to enforce a final judgment involving o Who owns the apartment? The judgment obligee,
delivery or restitution of property may do so by placing the NOT the judgment obligor.
plaintiff in possession of such property but the official shall o The charge therefore cannot prosper, in the
not destroy, demolish or remove the improvements made absence of any rule which imposes upon the officer
by the defendant or his agent on the property except by the duty to obtain a break open order.
special order of the court which may only issue upon o The break open / demolition order is only
petition of the plaintiff, after due hearing, and upon the required when it relates to improvements
failure of the defendant to remove the improvements constructed or planted by the judgment obligor
within a reasonable time fixed by the court. This or his agents.
requirement is not an empty gesture. This safeguard is  Mga iskwater.
necessary to give the defendant's an opportunity to protect
his interest. Defendant's house could not be removed
pending plaintiff's recourse to the court for a special order SEC. 11:
for the demolition and removal of improvements
constructed by him, which order is to be issued upon
petition of plaintiff, after due hearing and after the CALUAG V. PECSON: special judgment is a judgment
defendant has failed to remove the same within a which requires a performance of an act other than by
reasonable time fixed by the court. payment or money, or sale of personal or real
property. It refers to a specific act which a party / person
must personally do, by reason or because his personal
qualifications and circumstances have been taken into
ARCADIO V. YLAGAN (1986): this is an administrative consideration.
case against Atty. Ylagan, with the sheriff and two other
public officials, for having used ―force and violence to o In other words, he is the only person who can do it.
break open complainant’s domicile without special
authority from the court‖ under this Section. It appears the
judgment has been rendered against complainant here, SEC. 14: what is the effective date of a writ of execution?
Arcadio, by the MTC of QC. Complainant appealed to the CONTINUOUS.
RTC, but respondent Judge granted execution pending
appeal of the decision. Complainant filed a petition for  ―Such writ shall continue in effect during the period
certiorari with the CA, but the petition was eventually within which the judgment may be enforced by
dismissed. So, a writ of execution now was issued by the motion.‖
RTC, and pursuant thereto, Atty. Ylagan, the sheriff, and  During the FIVE (5)-YEAR period.
the two barangay officials proceeded to the premises and  Under the Old Rules, the effectivity period of a writ
when they found that no one is inside the apartment, what of execution is 60 days from receipt of the officer,
they did is broke open the door and entered the place. after which period, the writ becomes ineffective /
Before leaving, they locked the door and the gate with new functus officio.
padlocks. So an administrative charge is filed against  So that you had to apply for the issuance of
them, as there was no special order. an alias writ.
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SEC. 12: (just read)  If you are a farmer, pwede, dapat matira sa
iyo yun.
SEC. 13: what properties are exempt from execution? (d) His necessary clothing and articles for ordinary
personal use, excluding jewelry;
(a) The judgment obligor's family home as provided by  It will not be nice when someone is deprived
law, or the homestead in which he resides, and of his clothing’s.
land necessarily used in connection therewith;  Otherwise, you will be guilty of
 When does a home become a family home? indecent exposure 
Does it require an act in order to become (e) Household furniture and utensils necessary for
one? housekeeping, and used for that purpose by the
 OLD LAW: can be done judicially or judgment obligor and his family, such as the
extra-judicially. judgment obligor may select, of a value not
 PRESENT LAW: the constitution of exceeding one hundred thousand pesos;
the family home is AUTOMATICALLY  VALUE: not exceeding P100,000.00 (not any
CREATED when there is a HEAD OF more realistic).
THE FAMILY. (f) Provisions for individual or family use sufficient for
 HEAD OF THE FAMILY: when four months;
you are supporting someone  Example: bigas, corn.
who by law, you are required to (g) The professional libraries and equipment of judges,
support. lawyers, physicians, pharmacists, dentists,
 Example: children, parents, engineers, surveyors, clergymen, teachers, and
brothers and sisters. other professionals, not exceeding three hundred
 Maski single ka: if you are thousand pesos in value;
supporting your brother and (h) One fishing boat and accessories not exceeding the
sister, you are the head of the total value of one hundred thousand pesos owned
family. by a fisherman and by the lawful use of which he
 VALUE: P200,000.00 and P300,000.00 in earns his livelihood;
urban areas.  It must be used for the livelihood of the
 WHEN VALUE IS RECKONED: at the time obligor, and not for pleasure fishing.
of ITS CONSTITUTION, NOT at the time of (i) So much of the salaries, wages, or earnings of the
execution. judgment obligor for his personal services within the
 That is why if your family home is executed, four months preceding the levy as are necessary
oppose it, or if you are the judge, conduct a for the support of his family;
hearing to determine value at the time of the
constitution.
 Also, under the Family Code, assuming that GAA V. COURT OF APPEALS (1985): Now, even
the value of the property exceeds the limits ―wages‖ of laborers, are included.
at the time of its constitution, then the
proceeds of the auction sale must first be NOTE: Article 1708 used the word "wages" and not
returned to the judgment obligor. "salary" in relation to "laborer" when it declared what are to
 Only the EXCESS will be the subject be exempted from attachment and execution. The term
of the payment to the judgment- "wages" as distinguished from "salary", applies to the
obligee. compensation for manual labor, skilled or unskilled, paid at
 HOMESTEAD: doon ka talaga nakatira. stated times, and measured by the day, week, month, or
 EXCEPTIONS (under the FC): season, while "salary" denotes a higher degree of
1) for non-payment of taxes, employment, or a superior grade of services, and implies a
2) in satisfaction of debts secured by the position of office: by contrast, the term "wages" indicates
mortgage constituted on the family considerable pay for a lower and less responsible
home, character of employment, while "salary" is suggestive of a
3) debts due to laborers, mechanics, larger and more important service (35 Am. Jur. 496).
124
architects, builders, material men
and others who have rendered
service or furnished materials for the (j) Lettered gravestones;
construction of the family home, (k) Monies, benefits, privileges, or annuities accruing
(b) Ordinary tools and implements personally used or in any manner growing out of any life insurance;
by him in his trade, employment, or livelihood;  Kaya kumuha na kayo ng life insurance.
 What are special tools? What is even an (l) The right to receive legal support, or money or
ordinary tool? (sipao reference ) property obtained as such support, or any pension
(c) Three horses, or three cows, or three carabaos, or or gratuity from the Government;
other beasts of burden, such as the judgment  Basta pension or gratuity from the
obligor may select necessarily used by him in his government.
ordinary occupation;  Kapag private?
(m) Properties specially exempted by law.
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Material men’s lien.
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NOTE: ―… and no other,‖ → nature of these exemptions

from execution: the right to exemption from execution is GOMEZ V. GEALONE (1991): the invocation of the
PURELY STATUTORY. exemption in this case was raised only six months after
the bill of sale was issued.
 In other words, courts have no power to extend,
modify, or restrict these exemptions since they are  The properties here relate to an agricultural land,
SUBSTANTIVE, and NOT procedural, in character. with a residential house. These properties were sold
 They constitute a right, given to the judgment- at public auction.
obligor, and a right which must be resisted upon.  The exemption was only invoked six months after
 Otherwise, it would be lost. the final bill of sale was issued → after levy of these
 Because it is merely statutory, the BURDEN of properties and sold in a public auction.
showing the right to exemption is upon the  ISSUE: WON the exemption may still be invoked.
JUDGMENT-OBLIGOR.  SC: Although the Rules of Court does not prescribe
 He must show that he is entitled to it. the period within which to claim the exemption, the
 Otherwise, the right does not become rule is, nevertheless, well-settled that the right of
effective. exemption is a personal privilege granted to the
 PURELY STATUTORY RIGHTS. judgment debtor and as such, it must be claimed
not by the sheriff, but by the debtor himself at the
―But no article or species of property mentioned in this time of the levy or within a reasonable period
section shall be exempt from execution issued upon a thereafter: (Moran, M.V., Comments on the Rules
judgment recovered for its price or upon a judgment of of Court, vol. II, 1979 ed., 294, citing Young vs.
foreclosure of a mortgage thereon‖ → same as in the Civil Olivares, 41 Phil. 391, 395 Cruz Herrera vs.
Code. McMicking, 14 Phil. 641; 25 C.J. 133).
 To recover its price. NOTE: "In the absence of express provision it has
 Example: if you bought SCRAs from Rex and you variously held that claim [for exemption] must be made at
were unable to pay Rex for their purchase price, the time of the levy if the debtor is present, that it must be
Rex can claim the SCRAs. made within a reasonable time, or promptly, or before the
creditor has taken any step involving further costs, or
before advertisement of sale, or at any time before sale, or
within a reasonable time before the sale, or before the
PENTAGON SECURITY V. JIMENEZ (1990): it being a sale has commenced, but as to the last there is contrary
juridical person—it being a business enterprise—it does authority."
not use the firearms personally, but its employees.
Reasonable time, for purposes of the law on exemption,
 They are PERSONAL. does not mean a time after the expiration of the one-year
period provided for in Section 30 of Rule 39 of the Rules of
NOTE: The term "tools and implements" refers to Court for judgment debtors to redeem the property sold on
instruments of husbandry or manual labor needed by an execution, otherwise it would render nugatory final bills of
artisan craftsman or laborer to obtain his living. Here sale on execution and defeat the very purpose of
petitioner is a business enterprise. It does not use the execution – to put an end to litigation. We said before, and
firearms personally, but they are used by its employees. We repeat it now, that litigation must end and terminate
Not being a natural person, petitioner cannot claim that the sometime and somewhere, and it is essential to an
firearms are necessary for its livelihood. Private effective administration of justice that, once a judgment
respondent invites the Court to take judicial notice of the has become final, the winning party be not, through a
fact that there are security guards rendering service mere subterfuge, deprived of the fruits of the verdict. We
without firearms. now rule that claims for exemption from execution of
properties under Section 12 of Rule 39 of the Rules of
There is no question, in our mind, that a security agency Court must be presented before its sale on execution
without firearms to equip its guards is useless. by the sheriff.
However, it would appear that the exemption

contemplated by the provision involved is personal, SEC. 14: There is NO expiry date for the lifetime of a writ
available only to a natural person, such as a dentist's of execution.
dental chair and electric fan (Belen v. de Leon, G.R. No. L-
16412, 30 Nov. 1962). As pointed out by the Solicitor  All the law requires is that if after 30 DAYS, if
General, if properties used in business are exempt from execution is not fully satisfied, the sheriff must
execution, there can hardly be an instance when a make a report and state why.
judgment claim can be enforced against the business
entity. SEC. 15: SALE OF PROPERTY ON EXECUTION:
 This Section states the NOTICES TO BE GIVEN

WHEN EXEMPTIONS SHOULD BE INVOKED: must be WHEN A PROPERTY IS SOLD.
presented before its sale on execution.  EFFECT OF ABSENCE OF SUCH NOTICE: the
sale is null and void and passes no title.
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 PREFERABLE PLACES: city hall, post office, and (1) HOW: by paying the amount required by the
public market where the sale will take place. execution and the costs that have been incurred
therein.
PERISHABLE By posting written notice of the time and (2) WHEN: At any time before the sale of property on
PROPERTIES place of the sale in three (3) public execution.
places for such time as may be
reasonable, considering the character SEC. 19: HOW PROPERTY MAY BE SOLD ON
and condition of the property. EXECUTION: TIME: not be earlier than nine o'clock in the
morning and not later than two o'clock in the afternoon.
NOTE: no five days. Depending on the
character and condition of the property.  Must start at the exact time fixed on the notice.
OTHER By posting a similar notice in the three  RULE: When sufficient property was sold to satisfy
PERSONAL (3) public places for not less than five the execution: no more shall be sold.
PROPERTIES (5) days.  SALE OF REAL PROPERTIES CONSISTING OF
REAL By posting for twenty (20) days in the SEVERAL LOTS: must be sold separately.
PROPERTY three (3) public places a similar notice  When a portion of the property is claimed by a third
particularly describing the property and person, that third person may require (that part) to
be sold separately.
stating where the property is to be sold,
and if the assessed value of the  SALE OF PERSONAL PROPERTY CAPABLE OF
property exceeds fifty thousand MANUAL DELIVERY: must be sold within view of
(P50,000.00) pesos, by publishing a copy those attending the same and in such parcels as
of the notice once a week for two (2) are likely to bring the highest price.
 May the judgment obligor directly order the sale?
consecutive weeks in one newspaper
YES.
selected by raffle, whether in English,
Filipino, or any major regional language  The judgment obligor, if present at the sale,
published, edited and circulated or, in the may direct the order in which property, real
or personal shall be sold, when such
absence thereof, having general
property consists of several known lots or
circulation in the province or city.
parcels which can be sold to advantage
NOTE: better to have it published in a separately.
local newspaper with general circulation,
SEC. 21: May the judgment-obligee participate in the
kasi mahal sa broadsheets.
execution sale? If so, what is the effect if he becomes the
highest bidder? YES, he can participate.
NOTE: written notice of the sale shall be given to the
judgment obligor, at least three (3) days before the sale,  When the purchaser is the judgment obligee, and
except as provided in paragraph (a) [perishable] hereof.
no third-party claim has been filed, he need not pay
the amount of the bid if it does not exceed the
 HOW NOTIFY: service of pleadings and other amount of his judgment.
notices.  If it does, he shall pay only the excess.
 MUST SPECIFY: place, date and exact time of the  GENERAL RULE: if the judgment obligee is the
sale which should not be earlier than nine o'clock in one who will participate in the bid, he does not
the morning and not later than two o'clock in the have to pay if he only pays up to the amount of his
afternoon. judgment.
 PLACE OF SALE: may be agreed upon by the  EXCEPTIONS: when the judgment obligee as the
parties. purchaser has to pay:
(1) If there is a third party claim;
(2) If he bids in excess of his judgment, in
PROPERTY OR PROPERTY OR which case, he pays the excess.
PERSONAL PROPERTY PERSONAL PROPERTY
NOT CAPABLE OF CAPABLE OF MANUAL SEC. 22: ADJOURNMENT OF SALE: by written
MANUAL DELIVERY DELIVERY consent of the parties.
In the office of the clerk of In the place where the  WITHOUT SUCH AGREEMENT: may be adjourned
court of the Regional Trial property is located. from day to day.
Court or the Municipal Trial  May the sale be adjourned? YES.
Court which issued the  The sheriff may adjourn the sale from day to
writ of or which was day.
designated by the  REASON: if it becomes necessary to do so
appellate court. for lack of time to complete the sale.
 In other words, gabi na.
SEC. 16: THIRD PARTY CLAIMS: see below.  Kulang na araw; bukas na ulit.
 HOWEVER, if it were not for reasons of lack
SEC. 18: May the judgment obligor prevent the sale of of time, may the sale be adjourned? YES,
execution? YES. but only by written consent of the parties
concerned.
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 If no written consent: you have to post have been held considering that the said schedule
again and give notices on the new complied with all the requirements of law regarding a
date fixed. public sale, including notice and publication. The officer
may adjourn the sale from day to day if it is necessary to
do so for lack of time to complete the sale on the date
ABROGAR V. INTERMEDIATE APPELLATE COURT fixed in the notice. But he may not adjourn to another date
(1988): for failure of the defendant to satisfy the judgment unless with the written consent of the parties. This was
of the court in the amount of P2,553, two parcels of land precisely the point of the appellate court when it stressed
valued at P75,000 were levied upon and advertised for the fact that there was no written agreement between the
sale. The auction sale was scheduled on March 27, 1971, debtor and the creditor to postpone the sale, and in fact
but it did not proceed as the court, on motion of the there was no sale held on the scheduled date to warrant
defendant, issued an order that publication be made by the application of Section 24, Rule 39 of the Revised
the movant. So there was a controversy on who should Rules of Court.
pay the publication fees. HOWEVER, on the scheduled
day (March 27), considering that movant did not pay the
publication fees, the sheriff conducted the sale FOUR SEC. 16: THIRD PARTY CLAIMS: refer to that claim of a
MONTHS later. There was no showing that the defendant stranger to the proceedings, claiming his right (ownership,
agreed to the new schedule of the auction sale, and for instance) to the property which the sheriff has levied.
neither was there a new notice or publication of the
auction sale.  PROCEDURE:
 The third party claimant must make an
o TC ruling: the sheriff’s final sale is null and void for AFFIDAVIT, showing his title and right to the
lack of notice and publication, and awarded P2,553 possession of the property levied on;
and attorney’s fees to the defendant.  Serve it upon the sheriff making the levy,
o ISSUE: WON the TC is correct in annulling the sale, and the copy thereof upon the judgment
as it was conducted four months later after March obligee.
27, which was the scheduled date of sale as  The sheriff is not anymore bound to
contained in the notice of sale. keep the property.
o SC: YES, the new schedule was NULL AND VOID  UNLESS, the judgment
because there was NO VALID POSTPONEMENT obligee posts an indemnity
OF SALE. bond in the amount NOT
 There was no written agreement of the greater than the property levied
parties authorizing the sheriff to adjourn the upon.
sale.  EFFECT:
o Again, how to you adjourn a sale? The sheriff may
do so ONLY for lack of time to complete the sale,
kasi gabi na, bukas na lang. SHERIFF MAY NOW IF SHERIFF PROCEEDS
o BUT to postpone it to another day, for reasons other PROCEED WITH THE WITHOUT THE BOND
than above, it is required that the parties must give AUCTION SALE
their written consent.
o Absent their written consent, then the postponement
The bond will now answer The sheriff will be
is not valid, UNLESS it undergoes the procedure for personally liable for any
for any damages that the
new notices and publications of the new auction third party claimant may damage that the third party
sale. now suffer. claimant may suffer by
reason of the levy.
NOTE: As correctly pointed out by the respondent court
(and the trial court), "the proper notice and publication in a
newspaper was made for the sale at public auction  The third party claimant may file an action for
damages: within ONE HUNDRED TWENTY
scheduled for March 27, 1971. On motion, however, of
(120) DAYS from the posting of the bond.
private respondents, the trial court in an Order dated
March 26, 1971, directed the sale set for March 27, 1971 o OTHER REMEDY: file an
independent action for recovery of
postponed provided the movant would pay the publication
fees, otherwise the public auction would continue at a date said property.
to be designated by the Sheriff. The movant did not pay  WHO WOULD BE THE
the publication fees hence there was no postponement of DEFENDANTS: the sheriff and
the public auction sale since the condition precedent or the judgment obligee.
suspensive condition (that of paying the publication fees) o OR an action of damages by the
was not complied with. There was therefore no valid judgment obligee against the third
postponement of the public auction sale. And there was no party claimant for frivolous and
written consent of debtor and creditor and neither was spurious third party claims.
there any agreement in writing by the parties authorizing  But may be done in the same
the sheriff or the officer making the sale to adjourn the action / same court which
same "to any date agreed upon in writing by the parties." issued the writ, OR through a
separate action.
The public auction sale set for March 27, 1971, should  REMEDY OF THIRD PARTY
CLAIMANT:
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a. Action for damages, within 120 of the Manila court against properties not belonging
days against the bond, OR to the judgment debtor.
b. Separate reinvindicatory action o The injunction would not constitute interference with
in a separate case. the processes of a court of coordinate or co-equal
 REMEDY OF THE JUDGMENT- jurisdiction.
OBLIGEE: File damages against the o REASON: as a third party claimant, Pascual has the
third party claimant because the third right under the Rules to vindicate his claims to the
party claim is frivolous or spurious in properties levied upon by means of a proper /
the same proceedings OR in a separate action under SEC. 16.
separate action,
 If writ was issued in favor of the Philippines: NOTE: The Supreme Court held that the injunction in this
no bond shall be required. case would not constitute an interference with the process
 WHO MAY FILE: any person other than the of a court of coordinate and co-equal jurisdiction, because
judgment debtor or his agent may file. Rules 39, Sec. 17 of the Rules of Court recognizes the
 WHEN: anytime, so long as the property is with the right of a third party claimant to vindicate his claim to the
sheriff or before sale in public auction. properties levied upon by filing a separate and
 IF THIRD PARTY CLAIM DENIED: independent action to establish ownership to the
 File separate reinvindicatory action against properties levied upon and to secure in said action an
the judgment obligee or the purchaser of the injunction to restrain the sale of the attached property.
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property after the public auction ; or
 Action of damages against the indemnity When the sheriff acting beyond the bounds of his
bond posted by the obligee in favor of the authority, seizes a strangers property, the writ of
sheriff, within 120 days from the posting of injunction, which is issued to stop the auction sale of that
the bond. property, is not an interference with the writ of execution
 Remedy of certiorari or prohibition is NOT issued by another court because the writ of execution was
allowed. improperly implemented by the sheriff. Under the writ, he
 Neither is may an appeal be made against could attach the property of the judgment debtor. He is not
such denial of the court of the third party authorized to levy upon the property of the third-party
claim. claimant.
ISSUE: In case of a third party claim, is that not A judge acted within his jurisdiction and did not commit
considered as undue interference with the processes of any grave abuse of discretion in enjoining the auction sale
another co-equal court? where a sheriff has no authority to attach the property of
any person under an execution except that of the
 Can it ask a writ for preliminary injunction to prohibit judgement debtor. If a sheriff does so, the writ of execution
the sheriff from pursuing the sale? YES. affords him to justification, for the action is not in
 Is that PI valid, considering that the sheriff was obedience to the mandate of the writ. So long as the
acting pursuant a valid order from a co-equal court officer confines his act to the authority of the writ, he is not
of jurisdiction? liable but all of his acts which are not justified by the writ
are without authority of law. An injunction is a proper
remedy to prevent a sheriff from selling the property of one
ARABAY, INC V. SALVADOR (1978): a judgment was person for the purpose of paying the debts of another.
rendered against the defendant by the CFI of Manila,
ordering the defendant to pay Arabay certain sums of
money. The judgment became final and executory and
pursuant thereto, a writ of execution was issued and ESCOVILLA V. COURT OF APPEALS (1989): RTC of
accordingly, certain properties of the defendant were Davao rendered a judgment in favor of Cuison
levied upon. However, before the scheduled auction sale, Engineering and Machinery Co., Inc. against del Rosario
a certain Pascual filed a third party claim, alleging that he and Sons Logging Enterprises, Inc., ordering Logging
is the owner of said personal property because they were Enterprises to pay damages to the former. So a writ of
sold to him by the deputy sheriff of Caloocan City in an execution was issued and the sheriff levied upon a
earlier case where the defendant was also the defendant. welding machine. Then, a third party claim was filed by
Arabay posted an indemnity bond and the sale was Rama, office manager of Sibagat Timber Corporation.
rescheduled. The sale however, did not take place Because the levy of the welding machines, Sibagat
because Pascual sued the sheriff and Arabay before the instituted a separate special civil action for prohibition with
Caloocan Court, praying that the sale be enjoined and that preliminary injunction and damages before the RTC of
the defendants pay damages. The Caloocan court then Butuan. Subsequently, a motor launch, named Pixie Boy
enjoined the sheriff from proceeding of the sale. No. 5, was also levied upon and del Rosario filed a third
party claim. After an indemnity bond was filed by Cuison
o ISSUE: WON the Caloocan court may stop/enjoin Engineering for the sheriff, the second civil case in Butuan
the processes of the Manila court. was amended to include additional petitioner del Rosario
o SC: YES, the Caloocan CFI can stop the processes and the sheriff as defendants. The sale was scheduled
and was in fact conducted on motion of Cuison. After the
injunction case, the Butuan RTC rendered a decision in
125
NOTE: if he resorts to this, he LOSES HIS RIGHT TO DAMAGES if he favor of the plaintiff.
does not follow the procedure for a third party claim.
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petitioner's BAYERPHIL division manager and counsels

o Judgment here was rendered by the RTC of Davao. guilty of contempt on the ground that Judge Agana's
o Then third party claim was filed in the City of orders constitute undue and illegal interference with the
Butuan. exercise by Judge Ericta of his co-ordinate and co-equal
o SC: The indemnity bond is LIABLE. authority as Judge of the CFI on matters properly before
o The purchaser of the thing acquires it subject to the him. G.R. No. L-38881 is a petition to annul and set aside
outcome of the claim of the third arty claimant. the orders of Judge Vicente Ericta issued in Civil Case Q-
o RE: contention that the Butuan RTC cannot interfere 14029 designed to authorize the sale on execution of the
with the orders issued by the Davao RTC → the goods claimed by the third party claimants notwithstanding
same applies only in cases where no third party the restraining order issued by Judge Agana on the
claim is involved. ground that Judge Ericta exceeded his jurisdiction in
o So it is NOT undue interference because the assuming that his order of May 9, 1974 denying San
authority of the sheriff of the RTC of Davao is only Francisco's and Isidoro's motion to quash the levy on the
to levy properties belonging to the judgment-obligor. properties in question, which was not appealed by the
 If the sheriff of Davao levies property movants, constituted a valid final adjudication of the
belonging to a third person, effectively he ownership of the properties involved.
EXCEEDS his authority when he
implemented the order of the court.  A right of a third party claimant over the property
levied upon by the sheriff may not be taken up with
NOTE: In the case of Traders Royal Bank v. Intermediate the case where such claim is presented, but in a
Appellate Court, (133 SCRA 141 [1984]) where the Court separate independent action instituted by the
held: "Generally, the rule that no court has the power to claimant.
interfere by injunction with the judgments or decrees of a  Can that be considered as an intervention? NO, as
concurrent or coordinate jurisdiction having equal power to intervention may not be allowed AFTER
126
grant the injunctive relief sought by injunction, is applied in judgment.
cases where no third-party claimant is involved, in order to  Here, there is already a final and executory
prevent one court from nullifying the judgment or process judgment.
of another court of the same rank or category, a power  Intervention is NOT allowed as this is more
which devolves upon the proper appellate court (Arabay, likely to inject confusion with the issues of the
Inc. v. Salvadro, 82 SCRA 138). The purpose of the rule is parties with which that third party claimant
to avoid conflict of power between different courts of has nothing to do, and thereby retard, instead
coordinate jurisdiction and to bring about a harmonious of facilitate, the prompt dispatch of the
and smooth functioning of their proceedings.‖ controversy.
 Besides, intervention may not be permitted
AFTER trial has been concluded and final
judgment has been rendered.
BAYER V. AGANA (1975): BAYER GERMANY and
BAYER PHILIPPINES obtained in Civil Case No. Q-14029 NOTE: The moment a third-party claim is filed, the sheriff
a money judgment against Standard Industrial Co. After is not bound to keep the property levied upon, unless the
the same had become final, a writ of execution was issued creditor insists that it should be continued, which may be
and levy on the properties of the judgment debtor was done if such creditor files a bond sufficient to indemnify the
instituted. Ownership over the properties was claimed by sheriff for whatever damages he may be held liable for
third persons and on an indemnity bond filed by BAYER, should the third-party succeed in vindicating his title in a
the Sheriff proceeded to conduct the auction sale but he proper action brought separately for the purpose. The
was refused entrance at the premises. Thereafter, a sheriff is not required to examine the title deeds to pass
motion before Judge Ericta's court was filed asking upon the validity of the title since this is a question to be
authority to break open the gates to effect entry. The same determined by the proper court.
was granted and the third party claimants filed action for
damages against BAYER and the Sheriff. Judge Agana, to Under Section 17 of Rule 39 a third person who claims
whom the case was assigned, issued an order to maintain property levied upon on execution may vindicate such
the status quo but despite this, Judge Ericta granted claim by action. A judgment rendered in his favor,
BAYER'S motion to reiterate its order to break open the declaring him to be the owner of the property, would not
gates and to take hold of the goods for sale. Thereafter constitute interference with the powers or processes of the
came Judge Agana's order of contempt for violation of the court which rendered the judgment to enforce which the
status quo. Subsequently, these two separate petitions execution was levied. The property, being that of a
were filed, one essentially a counterclaim to the other. stranger, is not subject to levy, hence an interlocutory
G.R. No. 38701 is a petition for certiorari and prohibition to order such as injunction, upon a claim and prima facie
annul and set aside the orders of respondent Judge showing of ownership by the claimant, cannot be
Enrique Agana in Civil Case Q-18881 of the CFI of considered as an interference with the co-ordinate and co-
Quezon City enjoining herein petitioners BAYER equal authority of the court which rendered the judgment
GERMANY and BAYER PHILIPPINES, the City Sheriff subject of execution.
and his deputy in Quezon City from breaking open the
gates of the premises located at No. 17-18 Judge Juan
Luna St., San Francisco del Monte, Quezon City and
taking out the properties therein and that order finding 126
Intervention is allowed only BEFORE judgment.
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SEC. 23: When does a purchaser acquire ownership/title  REASON: the right follows the person, and not the
over the property? Upon payment of the purchase price property.
AND delivery of the property with the purchaser IF  TO BE EFFECTIVE: redemption must be exercised
CAPABLE OF MANUAL DELIVERY. by the persons, and in the time and manner,
prescribed by the rules, which are EXCLUSIVE.
 Without delivery: res perit domino.  If not exercised in the manner provided for,
 If personal property, title passes to the purchaser wala yan.
upon the delivery of the thing.  Rules must be strictly complied.
 Example: bumili ka ng kotse. Nabayaran mo na,  Redemption applies only when the property levied
and the buyer gave you the keys. You said, ―bukas and sold is a REAL PROPERTY.
ko na lang kunin „yan [susi].‖ Nasunog. Pwede pa  If it is personal property, upon its delivery,
bawiin yung pera? YES, as there was still NO tapos ang boksing.
delivery YET.  A purchaser in a public auction does not
 But if you bought a car and the seller said, necessarily acquire title by virtue of the
―Heto na yung susi,‖ and the buyer got the execution sale, as he only acquires identical
keys. The next day, the car was burned, interest that the judgment-obligor had in the
pwede ba mabawi yung pera niya? NO, as property as of the time of levy, attachment or
there was already delivery. execution.
 See law on sales.  As when a chattel mortgage is
executed over a house (though the
SEC. 24: NOT CAPABLE OF MANUAL DELIVERY: land on which it was built was
delivery here constitutes the issuance of the certificate of excluded), and proceeded with the
sale. notices as it is a chattel. Did the
purchaser acquire the title? NO, still a
 Tradition Longa Manu: constructive delivery. real property.
 CERTIFICATE OF SALE: conveys to the purchaser  The one that determines the nature of
all the rights which the judgment obligor had in such the property is the law.
property as of the date of the levy on execution or  Notwithstanding that the designation
preliminary attachment. of the parties as a chattel, the
procedure laid down for execution of
SEC. 25: WHEN OWNERSHIP IS ACQUIRED BY THE real property must be strictly
PURCHASER OVER REAL PROPERTY: upon the complied.
expiration of the period of redemption, and no redemption  PERSONS ENTITLED TO REDEEM REAL
has been exercised. PROPERTY (2):
(1) The judgment obligor, or his successors in
 The officer must give to the purchaser a certificate interest;
of sale, containing the following:  Examples of successor-in-interest:
(a) A particular description of the real property (a) One to whom the judgment-
sold; obligor has transferred his right
(b) The price paid for each distinct lot or parcel; 127
of redemption.
(c) The whole price paid by him; (b) To whom he conveyed his
(d) A statement that the right of redemption interest in the property for the
expires one (1) year from the date of the purpose of redemption.
registration of the certificate of sale. (c) Succession by operation of
 CERTIFICATE OF SALE: must be registered in the law: one who succeeds the
RD where the property is situated. interest of the debtor → heir.
 REASON: so that the period for redemption  May a surety
128
against whom the
will start to run. judgment was rendered join/exercise
 The one year period starts from the redemption as a successor-in-
registration of the sheriff’s certificate of sale. interest? NO, by paying the judgment
debt, he is subrogated to the rights of
SEC. 26: CLAIMED BY THIRD PERSON: the Certificate the judgment-obligee, and he cannot
of Sale shall make express mention of the existence of be considered as a successor-in-
such third party claim. interest of the judgment obligor.
 In short, he was not a
SEC. 27: RIGHT OF REDEMPTION: NATURE (as per the successor, but the judgment-
Supreme Court): not predicated on a proprietary right obligee himself.
which after the sale of the property leaves the judgment- (2) Creditor having a lien by virtue of an
obligor and vests in the purchaser. Rather, the right is attachment, judgment or mortgage on the
predicated on bare statutory privilege which may be property sold.
exercised only by the persons expressly named in the law.  SUBSEQUENT TO THE LIEN under
which the property is sold.
 In other words, the law does not vest actual
ownership at the time of the sale, as redemption is
a CONDITION PRECEDENT to the exercise 127
Right to redemption is a property right, and can thus be sold.
thereof. 128
Who was obliged to pay/has paid part of the judgment.
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129
 Such person is called a  ATTACHMENT: levy before finality
REDEMPTIONER: it refers to a of judgment.
JUNIOR LIEN ORDER / JUNIOR  REASON (Supreme Court): it is to
ENCUMBRANCER → he is a creditor enable these second lien holders to
having a lien to the property. protect the interest of the property of
 May surety exercise as a redemption the judgment-obligor.
after paying part of the obligation? -  Being subsequent or junior lien
NO, he cannot, as the lien which he holders, if the judgment-obligor
acquires and to which he is does not redeem, then the
subrogated by virtue of his payment, purchaser gets the property
is the same judgment that the obligee free from all lien or
held and by virtue of which the encumbrance.
property was sold.  What if there is a conflict between the two
 To be a redemptioner, his lien, (judgment obligor and a redemptioner)? In such
whether by attachment, judgment case, the judgment-obligor shall be preferred as the
or mortgage, must be other than right of redemption inures to him primarily, being
and subsequent to the judgment the owner of the property.
under which the property was sold,  The rights of the redemptioner will not be
not the same. prejudiced kasi pwede niya iyan birahin
 EXAMPLES: ordinary creditor having niyan.
a final judgment subsequent to that  The redemptioner can even ask for
under which the property was sold. execution.
 May redeem as a redemptioner
even if not levied by him. RIGHT OF REDEMPTION: can be sold voluntarily.
 As such judgment creditor or
obligee has preferential right  Can the right of redemption be levied upon by the
under the Civil Code, which is judgment-obligee in the same case and sold for the
equivalent to a LIEN: Art. 2244 satisfaction of the balance of the judgment there?
(14). NO, the right of redemption pertaining to the
 Or a complainant of a criminal case judgment obligor cannot be levied upon by the
who attaches the property of the judgment obligee.
accused to satisfy the civil liability of  REASON (Supreme Court): that would
the latter, provided that it was tantamount to defeating the purpose of the
SUBSEQUENT to the judgment under law in granting the right of redemption to the
which the property was sold judgment obligor.
(SECOND LIEN HOLDER).  Kalokohan na lang.
 Illustration: you have a property  Kung ganun, i-levy mo na rin „yung right
worth P10M, and then you saka ung yung property.
went to a bank to obtain a loan  However, the right of redemption being a property
in the amount of P2M. Then right, may be sold, and levied upon or sold to the
you went again to another bank satisfaction of the judgment.
and again obtained another  BUT that judgment should be rendered
loan for P3M this time. The subsequent or in another case.
second creditor bank was fine  The right is a property right which can be
with that, as the property’s sold voluntarily.
value was big. The first bank is  Consequently, that right of redemption may
superior over the second. Upon be levied upon and sold for the satisfaction
foreclosure, is the second bank of a judgment rendered in another case.
a redemptioner? YES, because  BUT the right of redemption pertaining to the
it is SUBSEQUENT by judgment obligor CANNOT be levied upon
judgment, attach-ment, or by the judgment obligee IN THE SAME case.
mortgage to the lien under
which the property was sold. SEC. 28: PERIODS OF REDEMPTION:
 Also, if there is a judgment
against a defendant, attaching
a property, even if the loan was Judgment obligor Redemptioner Redemptioner
less than the value of the (first or exercising redeeming from
attached property, then a subsequent SUBSEQUENT another
person who acquires redemption) and redemption redemptioner
subsequent judgment against
the defendant is a
REDEMPTIONER (by 129
Technically, levy is AFTER judgment.
judgment).
LEVY: a lien in favor of the judgment obligee, segregating such property
from the rest of the property of the judgment obligor for the purpose
of SATISFYING the judgment.
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Redemptioner o REASON: the status of a redemptioner is a fact

exercising FIRST which does not appear with the records of the
redemption proceedings.
o And in order to prevent the redemption by an
ONE YEAR from SIXTY (60) Even beyond unauthorized person, proof is required.
the registration of DAYS from ONE (1) YEAR
the certificate of previous period, SEC. 31: the redemption period of ONE YEAR, the
sale within which redemption PROVIDED he is judgment obligor RETAINS POSSESSION of the property.
to redeem. within which to within the 60-day
redeem. period counted SEC. 32: RENTS, EARNINGS, INCOME during the period
from the last of redemption: JUDGMENT OBLIGOR is entitled to the
previous same.
redemption.
o The purchaser is not entitled to them → only
EFFECT OF REDEMPTION BY THE JUDGMENT AFTER the expiration of the period of redemption.
OBLIGOR: effect of the sale is terminated and given
certificate of redemption. OCTOBER 27, 2016
SEC. 33: REDEMPTION:

AMOUNTS PAYABLE ON REDEMPTION:
a. FIRST REDEMPTION:
a. Purchase price; ABROGAR V. INTERMEDIATE APPELLATE COURT:
b. 1% interest per month thereon; Postponement of an auction sale: cannot be done unless
c. Assessment and taxes paid by the purchase a written agreement of the parties authorizing the sheriff to
after the purchase; adjourn the sale.
d. 1% per month interest on the total amount of
assessment or taxes; o EXCEPT when it is an adjournment for day to day,
e. If the purchaser be also a creditor having a on the ground that there is lack of time to finish the
PRIOR lien to that of the redemptioner, other auction sale.
than the judgment under which the purchase
was made, then the amount of such lien, with
interest.
b. SUBSEQUENT REDEMPTION: bayaran mo yung CENAS V. SANTOS (1991): Pulido spouses mortgaged
dalawang utang mo. their land to Pasay City Savings and Loan Association.
o The sum paid on the last redemption; Subsequently, the same land was levied upon pursuant to
o 2% interest thereon; a writ of execution issued in a certain civil case by the
o Assessment and taxes paid by the last RTC of QC in Punzalan v. Pulido. Judgment became final
redemptioner after last redemption; and the said land was levied on execution by the QC
o Interest on the total assessment and taxes; court. At the auction sale, Cenas was the highest bidder,
o Amount of prior lien held by the prior but there was an existing mortgage. Later on, the
redemptioner. Association assigned all its rights as mortgagee to Cenas.
It appears later on that a certain Dr. Santos, to whom the
REQUISITE TO THE EXERCISE OF RIGHT OF Pulido’s right of redemption was assigned, then Santos
REDEMPTION BY THE JUDGMENT OBLIGOR: None. redeemed the property from Cenas. Cenas, later, as
creditor having a prior lien, did not demand payment of his
o The judgment obligor is ENTITLED to redeem the other lien (as mortgagee, as he acquired the rights of the
property sold without further requisite than that of Association). Then, Santos filed to the sheriff an
paying the redemption price. extrajudicial foreclosure of the same property, which was
o He is not required to present proof of its being a redeemed by Cenas, being the assignee of the
judgment obligor, as his right of redemption, Association. Santos filed an adverse claim, saying that he
inherent on him, appears in the proceedings and had already redeemed the property. Santos also filed a
the documents held by the purchaser. petition for prohibition with preliminary injunction to enjoin
the sheriff from proceeding with the extrajudicial
SEC. 30: Upon the other hand, there is a REQUISITE for foreclosure sale.
the exercise of redemption of a REDEMPTIONER: he
must prove his status as such. (1) ISSUE: Did the redemption by Santos extinguish
the pre-existing mortgage obligation of the
o HOW: by producing to the officer, or person from judgment-obligor to the Association? NO.
whom he seeks to redeem, and serve with his (2) Santos, as successor-in-interest of Pulido, is
notice to the officer a copy of the judgment or deemed to have been subrogated of the rights and
final order under which he claims the right to the obligations of the obligor, who has a subsisting
redeem, certified by the clerk of the court wherein obligation to the mortgagee-bank.
the judgment or final order is entered. (3) Therefore, the extrajudicial foreclosure pursued by
 If attachment, then the order of attachment. Cenas as assignee of the mortgage can proceed,
 If mortgage, the mortgage deed. as it is a PRIOR LIEN.
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(4) He is therefore, called a PURCHASER WHO IS A Also, the sale was made en masse, and not per parcel
CREDITOR HAVING A PRIOR LIEN with such (the commercial lots valued at P500K were only sold for
purchase was made. P57K); and that price was grossly inadequate. After filing
of such complaint, Franco filed a motion for the issuance
NOTE: In the instant case, it will be recalled that on May 3, of writ of possession.
1976, the Pulidos mortgaged the subject property to
Pasay City Savings and Loan Association, Inc. who, in a. When is a party entitled to WRIT OF
turn, on January 8, 1977, assigned the same to petitioner POSSESSION? After expiration of 1 year from
Cenas. Meanwhile, on July 19, 1976, pursuant to the writ registration of the sheriff’s sale.
of execution issued in Civil Case No. Q-2029 (Petitioner 1. Issuance is ministerial.
Cenas is not a party in this case No. Q-2029), the subject b. He now seeks for the issuance of writ of
property was sold to petitioner Cenas, being the highest possession, which was opposed by Cometa on the
bidder in the execution sale. On July 19, 1977; private ground that there is a pending action for annulment
respondent Dra. Rosario M. Santos redeemed the subject of the levy and sale of the properties in question.
property. Therefore, there is no question that petitioner The court granted the writ of possession,
Cenas as assignee of the mortgage constituted over the nonetheless, but later on this order was
subject property, is also a creditor having a prior reconsidered and reversed by the same court.
(mortgage) lien to that of Dra. Rosario M. Santos. c. Because the trial court here reconsidered its
Accordingly, the acceptance of the redemption amount by previous order, Franco now questioned it in a
petitioner Cenas, without demanding payment of her prior certiorari proceeding in the CA, and the appellate
lien — the mortgage obligation of the Pulidos — cannot court granted the writ of possession.
wipe out and extinguish said mortgage obligation. The d. Thus, Herco filed a petition in the SC, on the issue
mortgage directly and immediately subjects the property of WON Cometa can be ordered to deliver
upon which it is imposed, whoever the possessor may be, possession of the property sold at public auction
to the fulfillment of the obligation for whose security it was despite the pendency of the said action for
constituted (Art. 2126, Civil Code). Otherwise stated, a annulment.
mortgage creates a real right which is enforceable against e. SC: possession of property sold on execution sale
the whole world. Hence, even if the mortgaged property is shall be conferred under the conditions set forth in
sold, (Art. 2128) or its possession transferred to another Sec. 33, Rule 39.
(Art. 2129), the property remains subject to the fulfillment 2. The issuance of writ of possession should be
of the obligation for whose security it was constituted DENIED.
(Padilla, Civil Code annotated, Vol. VII, p. 207, 1975 ed.). f. But a writ of possession is a mere consequence of a
writ of execution, as well as the ensuing public
Moreover, it must be stressed that private respondents auction sale.
redeemed the property in question as "successor in g. The issuance of the writ of possession is therefore
interest" of the judgment debtor, and as such are deemed dependent on a valid execution of the procedural
subrogated to the rights and obligations of the judgment steps preceding it, and any flaw affecting any of its
debtor and are bound by exactly the same condition stages could affect the validity of the issuance.
relative to the redemption of the subject property that h. Since the validity of the levy and sale is directly put
bound the latter as debtor and mortgagor (Sy vs. Court of it issue in another case, that issue necessarily
Appeals, 172 SCRA 125 [1989]; citing the case of requires pre-emptive resolution.
Gorospe vs. Santos, G.R. No. L-30079, January 30, 1976, 3. For if respondent had not acquired any right
69 SCRA 191). Private respondents, by stepping in the therein by virtue of the levy, then he is not
judgment debtor's shoes, had the obligation to pay the entitled to its possession.
mortgage debt, otherwise, the debt would and could be i. The failure of Cometa to exercise redemption is of
enforced against the property mortgaged (Tambunting vs. no moment, as redemption is inconsistent of his
Rehabilitation Finance Corporation, 176 SCRA 493 claim of invalidity of the sale.
[1989]). j. Writ of possession may be denied as the very
validity of the levy and sale has been put on issue.
k. Other than that, if the validity of the sale / levy is
not put on issue, is there any ground that the court
COMETA V. INTERMEDIATE APPELLATE COURT may refuse to issue the writ of possession? YES,
(1987): there was a suit for damages in the CFI of Rizal, see below.
ordering the defendant Cometa to pay plaintiff Franco a
sum of money. After the writ of execution was issued, the NOTE: the writ of possession may issue in favor of a
sheriff sold in the auction sale three commercial lots purchaser in an execution sale when the deed of
belonging to Cometa. The court later on issued an order conveyance has been executed and delivered to him after
cancelling the certificate of title of Cometa, and ordering the period of redemption has expired and no redemption
the issuance of a new certificate under the name of the has been made by the judgment debtor.
plaintiff Franco. Subsequently, Herco Realty, claiming to
have acquired the properties in question from Cometa A writ of possession is complementary to a writ of
PRIOR to the execution sale, filed an action to annul the execution (see Vda. de Bogacki v. Inserto, 111 SCRA 356,
levy and sale on the ground that the sheriff disregarded 363), and in an execution sale, it is a consequence of a
proper practice and immediately proceeded to its real writ of execution, a public auction sale, and the fulfillment
property without exhausting first his personal property. of several other conditions for conveyance set by law. The
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issuance of a writ of possession is dependent on the valid only as against the judgment debtor, his
execution of the procedural stages preceding it. Any flaw successors-in-interest, but NOT against a person
afflicting any of its stages, therefore, could affect the whose right of possession is ADVERSE to the latter.
validity of its issuance.
NOTE: In the extrajudicial foreclosure of real estate
In the case at bar, the validity of the levy and sale of the mortgages, possession of the property may be awarded to
properties is directly put in issue in another case by the the purchaser at the foreclosure sale during the pendency
petitioners. This Court finds it an issue which requires pre- of the period of redemption under the terms provided in
emptive resolution. For if the respondent acquired no Sec. 6 of Act 3135, as amended (An Act to Regulate the
interest in the property by virtue of the levy and sale, then, Sale of Property Under Special Powers Inserted In or
he is not entitled to its possession. Annexed to Real Estate Mortgages), or after the lapse of
the redemption period, without need of a separate and
independent action [IFC Service Leasing and Acceptance
SEC. 33, LAST PAR.: UNLESS a third party is actually Corp. v. Nera, G.R. No. L-21720, January 30, 1967, 19
holding the property ADVERSELY to the judgment obligor. SCRA 181]. This is founded on his right of ownership over
the property which he purchased at the auction sale and
o Meaning, a third person does not derive his his consequent right to be placed in possession thereof.
possession from the judgment obligor.
o In fact, the third party’s claim is adverse to that of This rule is, however, not without exception. Under Sec.
the judgment obligor. 35, Rule 39 of the Revised Rules of Court, which was
o In the absence of the attack on the validity of made applicable to the extrajudicial foreclosure of real
the levy and sale, the writ of possession is a estate mortgages by Sec. 6 Act No. 3135, the possession
ministerial matter on the part of the court to of the mortgaged property may be awarded to a purchaser
issue, EXCEPT when the third person who has in extrajudicial foreclosures "unless a third party is actually
possession / claim of ownership over the holding the property adversely to the judgment debtor."
property based his right adverse to (he does not [Clapano v. Gapultos, G.R. Nos. 51574-77, September 30,
derive it) from the judgment obligor. 1984, 132 SCRA 429, 434; Philippine National Bank v.
Adil, G.R. No. 52823, November 2, 1982, 118 SCRA 110;
IFC Service Leasing and Acceptance Corp. v. Nera,
ROXAS V. BUAN (1988): Valentin executed a REM to supra.] As explained by the Court in IFC Service Leasing
secure a loan in favor of Juan. For his failure to pay, the and Acceptance Corp. v. Nera, supra:
130
mortgage was foreclosed extra judicially. At the auction
sale, the property was bought by Buan as the highest . . . The applicable provision of Act No. 3135 is
bidder. When the property was not redeemed during the Section 6 which provides that, in cases in which an
period of redemption, Buan was issued a final bill of sale, extrajudicial sale is made, "redemption shall be
and a writ of possession. The sheriff tried to serve the governed by the provisions of sections four hundred
same, but found a certain Atty. Roxas in actual possession and sixty-four to four hundred and sixty-six, inclusive,
of the property. He claimed that he bought it from Valentin, of the Code of Civil Procedure in so far as these are
and he refused to vacate it, but the court ordered him to not inconsistent with the provisions of this Act."
vacate. Atty. Roxas was claiming that he bought the same Sections 464-466 of the Code of Civil Procedure were
from Valentin and a new action must be filed, and the act superseded by Sections 25-27 and Section 31 of Rule
of ousting him is a deprivation of his property without due 39 of the Rules of Court which in turn were replaced
process of law. by Sections 29-31 and Section 35 of Rule 39 of the
Revised Rules of Court. Section 35 of the Revised
o ISSUE: Is there a need for another case to oust Rules of Court expressly states that "If no redemption
him? NO. be made within twelve (12) months after the sale, the
o Anyone who derives title from the judgment-obligor purchaser, or his assignee, is entitled to a conveyance
can be ousted and is bound by the judgment. and possession of the property . . ." The possession of
o SC: (BASIS: Sec. 33, Rule 39) as transferee of the property shall be given to the purchaser or last
Valentin, the judgment obligor, the judgment obligor redemptioner by the officer unless a party is actually
Roxas steps into his shoes. holding the property adversely to the judgment debtor.
o Considering that property has already been sold at [Id. at 184-185; Emphasis in the original.]
a public auction pursuant to an extra-judicial
foreclosure, the only interest that may be
transferred is the right to redeem it within the period
prescribed by law. MALONZO V. MARIANO (1989): for failure to pay loan of
4. Roxas is therefore, the successor-in-interest of Universal Ventures to Banco Filipino, the bank foreclosed
Valentin to whom the latter has conveyed his extra-judicially two parcels of land with the improvements
interest to the property for the purpose of (commercial buildings thereon). At the auction, sale,
redemption. Banco Filipino was the highest bidder and the properties
o Consequently, Roxas’ occupancy thereof cannot be was awarded to them. No redemption was made, and a
considered as adverse to Valentin. final certificate of sale was issued to the bank. A writ of
o The purchaser’s right of possession is recognized possession was likewise issued. Now, the occupants of
the property, claiming to be lessees of Universal Ventures
130
filed an action against the bank, alleging that they were
See Act No. 3135.
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not parties on the ejectment case. (3) The fact that the property was exempt from
131
execution
o ISSUE: can the writ of possession be stopped (4) A third person has vindicated his claim to the
against the lessees? NO as their claim of property: there is another person who has a
possession is not adverse. better right.
o In fact, they derive their right of possession by the
virtue of the lease from the judgment obligor. HOW MAY THE PURCHASE PRICE BE RECOVERED?
TWO REMEDIES:
NOTE: The lessees of the mortgagor cannot be
considered third parties "actually holding the property (1) The purchaser may file a motion in the same action,
adversely" to said party from whom they derive their rights or in a separate action to recover from the
to the possession to the property; their rights to the judgment-obligee for the price paid, with interest, or
132
possession to the property; their rights cease with those of (2) Have the original judgment revived in his name,
the mortgagor, and a writ of possession is enforceable
against them. REMEDIES AVAILABLE TO THE JUDGMENT-OBLIGEE
IN AID OF EXECUTION: (just read the Rules here,
according to Sir)
(1) SEC. 36: he may cause the EXAMINATION of the

MARIANO V. COURT OF APPEALS (1989): A judgment
was rendered against the wife only, who was engaged in judgment obligor as to his property and income;
business. Apparently, with the consent of the husband.  File a motion to have the obligor examined in
court.
After an execution pending appeal was issued, defendant
(2) SEC. 37: EXAMINATION of the obligor of the
(husband) filed a separate action to vindicate his claim by
judgment obligor.
proper action after he had filed a third party claim.
 Those that you can garnish.
o SC: the husband is NOT a stranger to the case.  Example: the manager of a bank, or the
judgment obligor’s lessee.
(3) SEC. 40: if there are properties under the first two,
NOTE: Section 17, Rule 39 of the Rules of Court,
authorizes a "third person," i.e., "any other person than the either in his own hands or that of another person,
judgment debtor or his agent," to vindicate "his claim to then the court may ORDER the property to be
applied for the satisfaction of the judgment.
the property by any proper action." The "proper action"
 If the earnings of the judgment obligor are
referred to in the section "is and should be an entirely
separate and distinct action from that in which execution more than sufficient for his family’s needs:
has issued, if instituted by a stranger to the latter suit;" and court may order payment in installments.
(4) SEC. 41: APPOINT a receiver or forbid a transfer or
in "such separate action, the court may issue a writ of
disposition of or interference with such property.
preliminary injunction against the sheriff enjoining him
 Kasi baka ibenta niya.
from proceeding with the execution sale."
(5) SEC. 42: after examination, if the obligor has an
ascertainable interest (mortgagor/mortgagee) in a
Upon the other hand, if the claim of impropriety on the part
real property and his interest can be ascertained
of the sheriff in the execution proceedings is made by a
party to the action, not a stranger thereto, any relief without controversy, the court may order the SALE
therefrom may be applied for with, and obtained from, only of such interest.
 The court then cannot force the obligor to
the executing court; and this is true even if a new party
deliver the property if the property is with
has been impleaded in the suit.
controversy: if obligor claims ownership
(6) SEC. 43: if a person alleged to have the property of
The husband of the judgment debtor cannot be deemed a
the judgment-obligor, OR an obligor of the
"stranger" to the case prosecuted and adjudged against
judgment obligor, claims an adverse interest in the
his wife.
property or denies the debt, the court may
AUTHORIZE the obligee to institute an action,
within 120 days from notice of the order, and may
REMEMBER: the meaning of the word ―ADVERSE.‖
punish for contempt for the disobedience of such
order.
SEC. 34: INSTANCES WHERE THE BUYER AT A
PUBLIC AUCTION MAY RECOVER WHAT HE HAS
If there is no controversy, the court will just order the
PAID:
judgment obligor to deliver the same.
a) The purchaser of his successor-in-interest fails to  If he denies, the court has no authority to order that
recover possession of the property; person if he denies the debt or he has an adverse
b) The purchaser, after having acquired possession, is interest to that of the judgment-obligor, then the
evicted, due to: court may authorize the judgment-obligee to sue
(1) Irregularities concerning the sale: importance for the recovery of such property or debt.
of publication and notice requirements.
(2) Reversal or setting aside of the judgment: as 131
when it is pending appeal. PASO NA NGAYON: You must claim exemption PRIOR to auction sale
now.
132
He became the judgment obligee.
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 In the meantime (when an action has yet to be (3) Conclusive between the parties and their
filed), he can order/forbid the obligor of the successors in interest by title subsequent to
judgment-obligor from disposing off of the property the commencement of the action or the
for a period of 120 DAYS from the notice of the proceedings, litigating the same case, under
order. the same title and under the same capacity.
(CONCLUSIVENESS OF JUDGMENT) (See
SEC. 44: SATISFACTION OF JUDGMENT: may be detailed discussion below)
compelled by the judgment-obligee by means of
execution, or by the judgment obligor by means of CONCLUSIVENESS OF JUDGMENT: Others: deemed to
voluntary payment. have adjudged in the formal judgment or final order which
appears upon its face to have been so adjudged or could
 EFFECT OF COMPELLING SATISFACTION OF actually or necessarily included therein, or necessary
JUDGMENT: the party who compels satisfaction of thereto.
judgment admits the correctness of the judgment
and is therefore, estopped from questioning/taking  (2) Principle of splitting causes of action, or
an appeal the judgment. defenses not raised are deemed waived (a
133
 ENTRY OF SATISFACTION OF JUDGMENT , matter/objection that could have been raised).
WHEN MADE:  Compulsory counterclaim and crossclaims
(a) When the return of the execution satisfied, barred forever, as that matter could have
OR been raised.
(b) By filing of an admission of satisfaction of  WHAT IS CONCLUSIVE IN THE FINAL
judgment (executed as in conveyance of JUDGMENT: not just to the matter directly
property by the judgment-obligee or his adjudged, but also to other matters not
attorney), OR raised, but could have been raised. .
(c) Endorsement of such admission by the  The case cannot be opened anymore as it is
obligee or his attorney by the fact of the now conclusive, and you cannot raise
record of the judgment, OR another defense.
(d) When the judgment is satisfied other than
upon execution, the court may order entry of AGAINST WHOM THE JUDGMENT IS CONCLUSIVE:
satisfaction of judgment without the not only to the parties in the case, but also their
judgment-obligee or his attorney successors-in-interest by title subsequent to the
accomplishing any of the foregoing commencement of the action or special proceedings.
requisites (Read SEC. 45).
 Let us ay satisfaction of judgment is  If there has been a transfer of interest in the subject
not through execution, but dacion en matter of the action pendent lite, even if there is no
pago (a property was ceded as actual amendment to the pleading, will the
payment). transferee of the interest be bound by the
judgment? YES, as he is a successor-in-interest by
SEC. 47: EFFECT OF FINAL AND EXECUTORY title subsequent to the commencement of the
134
JUDGMENT: provided that the court has jurisdiction to action.
promulgate the judgment, the effect of such judgment are  If title has been transferred PRIOR to the
as follows: commencement of the action, the transferee is not
bound by the judgment.
(a) IN REM / QUASI IN REM: Judgment / final order
136
against a specific things / probate of a will / RES JUDICATA : (Supreme Court) it rests on the
administration of an estate of a deceased person / principle that parties are ought not to be permitted to
to the personal, political or based on legal condition litigate the same issue more than once.
135
or status of a person / relationship to another:
CONCLUSIVE UPON THE TITLE TO THE THING /  Just like forum shopping, litis pendentia.
WILL / ADMINISTRATION / CONDITION / STATUS  That once a right or fact has been judicially tried
/ RELATIONSHIP. and determined by a court of competent jurisdiction,
 HOWEVER, the probate of a will or granting or an opportunity for such trial has been given, the
of letter of administration shall only be judgment of the court would be conclusive to the
PRIMA FACIE evidence of the death of the parties and his privies.
testator or the testatrix.  Otherwise, litigations will become interminable.
(b) IN PERSONAM: (in other cases) judgment / final  Rights of the parties would be involved in endless
order is with respect to: confusion; courts would be stripped of their most
(1) The matter directly adjudged, efficient power—the most important function of
(2) Or any matters which can be raised in government—that of ascertaining rights would go
relations thereto. (BAR BY FORMER unfulfilled.
JUDGMENT [1] and [2]).  In other words, once a case has been decided, it
should finally end / rest there.
133
In other words, tapos na; nabayaran na.  It is against public policy to revive the same.
134
Premise the concept of res judicata to the jurisdiction of the court to
136
promulgate the judgment. Also known as ESTOPPEL BY FORMER JUDGMENT: estopped from
135
Example: Naturalization, marriage. raising matters that could have been raised in the first action.
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LAW OF THE CASE: when a case has been decided on "This principle of res judicata is embodied in Rule 39,
the basis of a particular doctrine laid down by the court, Sec. 49(b) and (c) of the Rules of Court, as follows:
any posterior change in that jurisprudence can only be
PROSPECTIVE, and cannot be applied retroactively, as '(b) In other cases the judgment or order is, with
there has already been the law of the case. respect to the matter directly adjudged or as to any
other matter that could have been raised in relation
 If a case has been decided on the basis of the thereto, conclusive between the parties and their
abandoned doctrine, that is now the law of the successors in interest by title subsequent to the
case. commencement of the action or special proceeding,
litigating for the same title and in the same capacity.
LEE BUN TING V. ALIGAEN (1977): the parties in this '(c) In any other litigation between the same parties or
case are already heirs. Judge Dinglasan here has a parcel their successors-in-interest, that only is deemed to
of land. He sold the same to the father of Lee Bun Ting have been adjudged in a former judgment which
(Lee Leung). Later on, realizing that she committed a appears upon its face to have been so adjudged, or
mistake in selling the property, Lee Leung being a was actually and necessarily included therein or
foreigner, she filed an action for reconveyance. However, necessary thereto.'
the SC denied this action, saying that she is in pari delicto
(the Court left the parties as they are). The remedy is only "Sec. 49(b) enunciates that concept of res judicata
available only to enforce the Constitutional provision re: known as 'bar by prior judgment' while Sec. 49(c)
ownership of land. However, the doctrine of in pari delicto refers to 'Conclusiveness of judgment.' There is 'bar
was abandoned later on by the Supreme Court in the case by prior judgment' when, between the first case where
of Philippine Banking v. Lui She, due to the very strong the judgment was rendered and the second case
public policy involved. Because of that, the heirs now filed which is sought to be barred, there is identity of
a new case for reconveyance—the same that the father parties, subject matter and cause of action. The
filed before. Now, there was a motion to dismiss on the judgment in the first case constitutes an absolute bar
ground of res judicata. However, the judge Aligaen to the subsequent action. It is final as to the claim or
refused, as the doctrine has already changed. The case demand in controversy, including the parties and
went up to the Supreme Court. those in privity with them, not only as to every matter
which was offered and received to sustain or defeat
o SC: one specie of res judicata is what is known as the claim or demand, but as to any other admissible
the LAW OF THE CASE: ―Law of That Case.‖ matter which might have been offered for that purpose
o Public policy demands that once a case is finally and of all matters that could have been adjudged in
decided, let is rest forever. that case. But where between the first and second
 Hindi mo na pwede buhayin ulit. cases, there is identity of parties but no identity or
cause of action, the first judgment is conclusive in the
NOTE: The decision of this Court in G. R. No. L-5996, second case, only as to those matters actually and
"Rafael Dinglasan, et al. vs. Lee Bun Ting, et al." directly controverted and determined and not as to
constitutes a bar to Civil Case No. V-3064 before the matters merely involved therein." (pp. 76-78).
respondent court. Said Civil case, therefore, should have
been dismissed because it is a mere relitigation of the
same issues previously adjudged with finality, way back in REQUISITES OF RES JUDICATA:
1956, between the same parties or their privies and
concerning the same subject matter. We have consistently (1) The judgment or order invoked as res judicata must
held that the doctrine of res judicata applies where, be a FINAL ORDER;
between a pending action and one which has been finally  Kind of final order or judgment: the judgment
and definitely settled, there is identity of parties, subject that may be invoked as res judicata s that
matter and cause of action. which is FINAL and EXECUTORY.
 Not merely final and appealable.
The concept of res judicata as a "bar by prior judgment"  REASON: if it is final and executory, the
was explained in Comilang vs. Court of Appeals, et al., court will no longer have the power to alter
promulgated on July 15, 1975, 6 thus: the judgment, while if it is final and
appealable, it is still subject to modification
"'The fundamental principle upon which the doctrine of by the appellate court.
res judicata rests is that parties ought not to be (2) The court rendering the same must have
permitted to litigate the same issue more than once; jurisdiction over the subject matter, over the
137
that, when a right or fact has been juridically tried and parties/person ;
determined by a court of competent jurisdiction, or an
opportunity for such trial has been given, the judgment
of the court, so long as is remains unreversed, should
he conclusive upon the parties and those in privity with
them in law or estate. . . . . 137
Res judicata applies provided that the court has jurisdiction over the
subject matter and the parties of the case.
xxx xxx xxx
HOW: proper service of summons or voluntary surrender.
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(3) There must be between the two cases identical commencement of the first action? If an
parties, identity of subject matter, and identity of action is filed against a vendor after he has
cause/s of action; and parted with his title in favor of a third person,
(4) The judgment or order must be upon the merits of the third person is not bound by the
the case. judgment which may be rendered against the
vendor and his successors-in-interest.
May a FOREIGN JUDGMENT be invoked as res judicata?  In such case, the principle of res
NO, as a foreign judgment has NO EXISTENCE in law. judicata does not apply because the
vendee acquired title BEFORE, and
May a judgment obtained through FRAUD constitute a bar not after, the commencement of the
to an action to annul it? NO, such judgment cannot be action.
invoked as res judicata.  IDENTITY OF SUBJECT MATTER: if the second
case is the same thing as the first, or is included in
 REASON: public policy which favors stability of the first case.
judicial decision are mute in the presence of fraud,  So a judgment for an action for recovery of a
which the law abhors. large tract of land shall be a bar for the
subsequent action for the recovery of its
JUDGMENT UPON THE MERITS: for purposes of res smaller parcels included in the large tract of
judicata. land.
 For the judgment of the recovery of a
 A judgment of the merits is one finally settling the property would be a bar for the subsequent
issues raised in the pleadings. action for the recovery of its value.
 In other words, it is only when the court disposes of  Judgment for an action for accounting for
the case based on the issues raised in the certain funds will be a bar for a subsequent
proceedings. action for partition of the same funds.
 EXCEPTION: refers to those orders of DISMISSAL  When another case is filed, you either say it
which by provision of the Rules have an effect of is SPLITTING.
adjudication upon the merits.  But you can also say litis pendentia.
 Example: on Pre-Trial → failure to appear at  Actually, res judicata and litis pendentia are of the
the Pre-Trial on the part of the plaintiff will same nature.
cause the dismissal of the action, and the
dismissal will have the effect of adjudication
of the merits of the case (See Sec. 5, Rule
18).
 Dismissal is WITH prejudice, unless RES JUDICATA LITIS PENDENTIA
otherwise ordered by the court.
 This is NOT raised in the pleadings, The two cases are still One is already final and
like the cause of action insofar as the pending. executory.
plaintiff and the defenses insofar as
the defendant. ELEMENTS OF LITIS PENDENTIA:
 This is by a specific rule.
 This is even if not in the merits. (1) Same parties, or the parties in the two cases at
 Nonetheless, the effect is res judicata least represents the same interest/s;
→ You cannot re-file it. (2) Same rights involved: the identity in the parties and
 ALSO, failure to prosecute (Sec. 3, Rule 17). the rights or reliefs prayed for are derived from the
 The dismissal is WITH prejudice, same rights;
unless otherwise ordered by the court. (3) That a judgment in one case, whoever is the
 Unlike Sec. 1, where the dismissal is successful party, will always be res judicata to the
WITHOUT prejudice, unless other;
otherwise stated. (4) Identity of causes of action.
 Also, see TWO DISMISSAL RULE.  IDENTITY OF CAUSE OF ACTION: when
two actions are based on the same act or
IDENTITY OF PARTIES, SUBJECT MATTER AND omission.
CAUSES OF ACTION:  There can only be one action for a single
cause of action.
 IDENTITY OF PARTIES: when the parties in the  How singleness of a cause of action is
second action are the same as the parties in the determined: if it is based on the same delict
first, or the parties in the second are successors-in- or wrong / act or omission.
interest of the parties in the first action (e.g. heirs,
purchasers who acquired title after the
commencement of the first action). INDUSTRIAL FINANCE CORP. V. APOSTOL,
 By title SUBSEQUENT to the BACHRACH V. ENCARANGAL: an action for collection
commencement. would have the effect of nullifying or abandonment of the
 Does res judicata apply to a purchaser who mortgage.
acquired title of the property BEFORE the
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o When you collect on the note, the real estate legal consequence. The
mortgage established thereon, or any mortgage, judgment is now
whether chattel or real, re also deemed WAIVED. conclusive, as the defense
o REASON: if allowed to subsists, then effectively, has never existed at all.
you are allowing a second action for the foreclosure
of the mortgage, which would constitute splitting. - Even if you raised it
 It would be allowing two actions for the same and you didn’t have
cause of action / act or omission. proof back then, and
you raise it now when
you have proof, NO.
TWO CONCEPTS ON THE DOCTRINE OF RES
JUDICATA: the doctrine of res judicata embraces to
different concepts: In ejectment (where the only issue is possession de facto),
if the issue of ownership is raised, and the issue of
possession cannot be determined or resolved without
BAR BY FORMER CONCLUSIVENESS OF resolving the issue of ownership, then the MTC may rule
JUDGMENT JUDGMENT on the issue of ownership.
Assuming that the court has jurisdiction  BUT its findings of the issue of ownership IS NOT
Said judgment which is in That only deemed to have CONCLUSIVE.
respect to the matter been adjudged in the former  May be a subject of a separate independent
nd
action (2 par., Sec. 18, Rule 70).
directly adjudged or to any judgment which appears
other matter that can be upon its face so adjudged,
For purposes of applying res judicata, what portion of the
raised thereto, conclusive or which was actually
between the parties and necessarily included therein decision controls? DISPOSITIVE PART OF THE
their successors-in-interest or necessary thereto. DECISION.
by title subsequent to the
 Does the doctrine of res judicata also apply to
action, litigating for the
same thing, under the orders? YES, to final orders.
same title, and in the same
SEC. 48: FOREIGN JUDGMENT: EFFECT:
capacity.
All three identities must be Identity of parties AND
present: parties, subject subject matter only: no
AGAINST A SPECIFIC AGAINST A PERSON
matter, cause of action. identity of cause of action
THING
with the two cases.
- All other requisites Conclusive upon the title to Presumptive evidence of a

must be present. the thing. right as between the parties
and their successors in
EFFECT: the first judgment The first judgment is
interest by a subsequent
constitutes an ABSOLUTE conclusive only on the
BAR to all matter directly matters actually litigated title.
adjudged, as well as and adjudged in the first
matters that might have action. POSSIBLE DEFENSES AGAINST AN ACTION FOR
been raised in relation ENFORCEMENT OF JUDGMENT: Judgment may be
thereto. repelled by:
EXAMPLE: A judgment EXAMPLE: A promissory
rendered upon a note payable in installments (1) Want of jurisdiction;
promissory note is → provided that the PN (2) Want of notice to the party;
(3) Collusion;
conclusive as to the validity does not contain an
(4) Fraud; or
of the instrument, and the escalation clause, every
amount due upon it. installment due may be the (5) Clear mistake of law or fact.
Although it be subject of a separate action.
CLEAR MISTAKE OF FACT OR LAW: What court has
subsequently alleged that
jurisdiction? RTC, an action of incapable of pecuniary
perfect defense actually - So here, when you sue
existed of which no proof for the next estimation.
was offered, such as installment, you no
 REASON: Read Mijares.
forgery / want of longer need to prove
 NOTE: there is no jurisprudence on point.
consideration or payment, the due execution of
so if such defenses were the PN, as the same
not presented in the action has been conclusive in PROCESS: when a judgment of a foreign tribunal is
and established by the first case. rendered, can that be enforced in our country? YES,
provided that an action for the enforcement of a foreign
competent evidence, the - What is being litigated
judgment is filed with the court.
subsequent allegation of here is just the amount
their existence is now of no due.
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 REASON: we cannot take judicial notice of the

judgment of the foreign court. ACTION REQUIRED: enforcement of a foreign judgment.
MIJARES V. RAÑADA (2005): human rights victims were HANG LUNG BANK V. SAULOG (1991): Hang Lung
awarded USD1.9B. They cannot enforce it outside the Bank of Hong Kong secured a judgment against a
Philippines. Thus, they filed an action with the Makati corporation and the latter’s sureties. Finding no properties
RTC, and were asked to file docket/filing fees in proportion in Hong Kong to enforce the judgment, the Bank found out
to the award. that the surety had properties in the Philippines. Hang
Kung filed a case in the RTC of Makati for the
o SC: when an action for enforcement of a foreign enforcement of the judgment rendered by the HK court.
judgment is filed in our court, our courts cannot
delve upon the merits of the case. o ISSUE: WON the Bank can have access to our
 If it is a claim or an award for damages, courts, as it is a bank which has no license to do
regardless of the amount, it cannot be filed in business in the Philippines.
the MTC. o TC: No, dismissed.
 What is being proved in this case is the o SC: TC erred → ISOLATED TRANSACTION
judgment issued by a foreign tribunal and its RULE: it is not the lack of license.
existence.  Rather, it is the doing business in the
 After that, tapos ka na. Philippines without a license that bars a
 The defendant can raise the issue of want of foreign entity from having access to our
jurisdiction, lack of notice, fraud, collusion. courts.
o TINGA, J: do not base it anymore on the amount o So if a corporation is not doing business in the
sought to be enforced, as the issue is not WON Philippines, then, there is no need to secure a
they are entitled to the same (already been license.
litigated). o They may sue under the isolated transaction rule.
 The issue is WON the foreign judgment can
be enforced in the Philippines. NOTE: The complaint therefore appears to be one of the
 HOW PROVED: to prove that there is such a enforcement of the Hong Kong judgment because it prays
decision (existence). for the grant of the affirmative relief given by said foreign
 Therefore, the issue there is incapable of judgment. Although petitioner asserts that it is merely
pecuniary estimation. seeking the recognition of its claims based on the contract
 The only issue herein is a legal one: WON sued upon and not the enforcement of the Hong Kong
there has been a foreign judgment rendered: judgment, 18 it should be noted that in the prayer of the
conclusive / presumptive right. complaint, petitioner simply copied the Hong Kong
 If it is proven, then it can be enforced here. judgment with respect to private respondent's liability.
o It is a judgment in personam: presumptive basis of
a right. However, a foreign judgment may not be enforced if it is
o COMITY: reciprocity. not recognized in the jurisdiction where affirmative relief is
 Allowed only in countries we have diplomatic being sought. Hence, in the interest of justice, the
relations with. complaint should be considered as a petition for the
o If it is a claim/award of damages, what you are still recognition of the Hong Kong judgment under Section 50
proving here is that there is a judgment issued by a (b), Rule 39 of the Rules of Court in order that the
foreign tribunal. defendant, private respondent herein, may present
o After that, then you’re done. evidence of lack of jurisdiction, notice, collusion, fraud or
o The adverse party may raise the following issues. clear mistake of fact and law, if applicable.
NOTE: It bears noting that Section 48, Rule 39

acknowledges that the Final Judgment is not conclusive REMEDIES BEFORE A JUDGMENT BECOMES FINAL
yet, but presumptive evidence of a right of the petitioners AND EXECUTORY
against the Marcos Estate. Moreover, the Marcos Estate is
not precluded to present evidence, if any, of want of 1. Motion for Reconsideration;
jurisdiction, want of notice to the party, collusion, fraud, or 2. Motion for New Trial;
clear mistake of law or fact. This ruling, decisive as it is on 3. Appeal
the question of filing fees and no other, does not render
verdict on the enforceability of the Final Judgment before
the courts under the jurisdiction of the Philippines, or for REMEDIES AFTER A JUDGMENT BECOMES
that matter any other issue which may legitimately be EXECUTORY:
presented before the trial court. Such issues are to be
litigated before the trial court, but within the confines of the 1. Petition for Relief from Judgment;
matters for proof as laid down in Section 48, Rule 39. On 2. Action to Annul a Judgment;
the other hand, the speedy resolution of this claim by the 3. Certiorari;
trial court is encouraged, and contumacious delay of the 4. Collateral Attack of A Judgment;
decision on the merits will not be brooked by this Court.
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Motion for Motion for New Appeals final order is

Reconsideration Trial contrary to
law;
(Rule 37) (Rule 37) Resolution of the Resolution of
motion: within 30 the motion:
One that is The aggrieved An appeal may days from the within 30 days
directed against a party may move be take from a time it is from the time it is
final judgement or the trial court to judgment or submitted for submitted for
a final order set aside final order that resolution resolution
judgment or final completely
order and grant disposes the If the motion is If the motion is
a new trial case (Sec 1, denied: denied:
Rule 41)
The movant has The movant has
When to file: When to file: When to file: fresh period or 15 fresh period or
days from receipt 15 days from
A motion for A motion for By notice of or notice of receipt or notice
reconsideration is reconsideration appeal: within denying or of denying or
filed within the is filed within the 15 days after dismissing the MR dismissing the
period for taking period for taking notice to within which to file MR within which
an appeal an appeal appellant of the notice of appeal – to file notice of
judgment or final the appeal appeal – the
By notice of By notice of order appealed
appeal: within 15 appeal: within 15 referred herein is appeal referred
from; appeal from the herein is appeal
days after notice days after notice 141
to appellant of the to appellant of By record on judgment itself ; from the
judgment or final the judgment or
140
appeal : within judgment
(FRESH PERIOD 143
itself ;(FRESH
order appealed final order 30 days from RULE or
from; appealed from; notice of PERIOD RULE
NEYPES or NEYPES
judgment or final 142
RULING )
By record on By record on order; RULING)
138 139
appeal : within appeal : within
30 days from 30 days from
notice of judgment notice of
or final order; judgment or final HOW: file notice
order; of appeal or Effect of Effect of
record of appeal granting a granting a
to the court Motion for Motion for New
which rendered Reconsideration: Trial:
the judgment
and serve a copy The court may The original
thereof to the amend the judgment or final
adverse party; judgment or final order shall be
order. The vacated, and the
GROUNDS: GROUNDS: amended action shall stand
judgment is in the for trial de novo.
(a) that the (a) FAMEN – by nature of a new
damages reason of
judgment which
awarded are which the
superseded the
excessive; aggrieved
(b) that the party has original judgment.
evidence is probably
insufficient been
to justify the impaired in 141
decision or his rights; Because an order denying a motion for reconsideration is NOT
final order; (b) Newly- APPEALABLE. It cannot be a subject of Certioarari under A.M No. 07-7-
(c) that the discovered 12-SC. The amendment seeks to prevent the filing of a petition for
Certiorari under Rule 65 based on an order denying a motion for new
decision or evidence
trial or a motion for reconsideration.
142
Applies to: Rule 41, Rule 40, Rule 42 , Rule 43 and Rule 45; Criminal
138
A record on appeal shall be required only (1) in special proceedings cases;
143
and (2) other cases of multiple or separate appeals; Because an order denying a motion for new trial is NOT
139
A record on appeal shall be required only (1) in special proceedings APPEALABLE. It cannot be a subject of Certioarari under A.M No. 07-7-
and (2) other cases of multiple or separate appeals; 12-SC. The amendment seeks to prevent the filing of a petition for
140
A record on appeal shall be required only (1) in special proceedings Certiorari under Rule 65 based on an order denying a motion for new
and (2) other cases of multiple or separate appeals; trial or a motion for reconsideration.
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 The, the court will determine

RULE 41: APPEAL FROM THE REGIONAL TRIAL executor/administrator: letters
testamentary / letters of
COURTS
administration, which is against
appealable.
 Then there will be an inventory
SEC. 1: WHAT IS THE SUBJECT OF AN APPEAL? An / making of a bond.
appeal may be taken from:  Then to render an accounting
within 1 year from the time of
(1) A JUDGMENT, or issuance, which is also subject
(2) FINAL ORDER: one that completely disposes off to appeal.
the case. (b) Determines who are the lawful heirs
 If an order does not totally disposes off the of a deceased person, or the
case, then that is NOT a final order. distributive share of the estate to
 EXAMPLE: if defendant files a MTD which such person is entitled;
on the ground of lack of jurisdiction, (c) Allows or disallows any claim against
and the court grants it and dismisses the estate of a deceased person:
the case, is that a final order? YES, claim by the creditors;
as there is nothing left to do. (d) Settles the account of an EATG;
 If it denies the same, is that a final (e) Final determinations of the rights of
order? NO, as something still has to the party appealing, EXCEPT
be done (file an Answer, Pre-Trial, appointment of a special
Trial). administrator;
 OPPOSITE: interlocutory order. (f) Final order or judgment rendered in
(3) A particular matter, when declared by this Rules to the case, and affects the substantial
be APPEALABLE: even if does not finally disposes rights of the person appealing.
off the case, but the Rules so declares.
 Usually happens in multi-tiered proceedings. NO APPEAL MAY BE TAKEN FROM:
 EXAMPLE: in action for EXPROPRIATION:
two issues: (a) RULE 38: an order denying a petition for relief or
a. Right of the plaintiff to expropriate and any similar motion seeking relief from judgment;
the issue of WON the plaintiff is  In the old Rules, it was appealable
authorized to expropriate and the (SERVICEWIDE SPECIALIST V. SHERIFF).
same is for a public purpose.  Under the present Rules, it CANNOT
 It shall issue an order: ORDER anymore be appealed.
OF EXPROPRIATION.  Even if it is a FINAL ORDER.
 That is already appealable (b) An interlocutory order;
without awaiting for the (c) An order disallowing or dismissing an appeal (by
resolution of the second issue the trial court): even if it is a final order.
(MIRANDA V. COURT OF (d) An order denying a motion to set aside a judgment
144
APPEALS, 1976 ). by consent, confession or compromise on the
 So technically, the does not ground of fraud, mistake or duress, or any other
disposes off the case, but ground vitiated consent.
jurisprudence so provide.  A judgment by consent, by confession or by
b. Amount / just compensation. a compromise judgment is IMMEDIATELY
 Also, PARTITION: existence of co-ownership EXECUTORY.
and then accounting / issue of the fruits or  Even if the court renders judgment on the
the rents. compromise, it is not appealable.
 RULE 109:  You cannot use appeal as a mode of relief.
(a) Allows/disallows a will: file a petition  There is another relief for that.
for probate of the will. (e) An order of execution;
 After resolution of that, that (f) A judgment or final order for or against one or more
issue is already appealable. of several parties, or in separate claims,
counterclaims, cross-claims and third party
complaints, while the main case is pending, unless
144
the court allows an appeal therefrom; (SEPARATE
Rule 59, Section 4 recognizes that in actions involving the rendition 145
and SEVERAL JUDGMENTS , Read SECS. 4
of an accounting, an appeal may be taken from the judgment ordering and 5, RULE 36) and
the accounting and directs that during the pendency of the appeal, or  It is NOT appealable if the court renders a
even before the appeal is taken, the rendition of the accounting shall
separate or several judgments. but this rule
not be stayed, unless otherwise ordered by the trial court. Thus, if the
does not tell us the proper procedure:
judgment directing an accounting is upheld on appeal, there would be
no time lost and the accounting as rendered could be passed upon by
―unless the court allows an appeal
the trial court at the stage of execution of judgment; and if the therefrom.‖
judgment were reversed on appeal, reimbursement of the actual
expenses incurred by the successful appellant in rendering the
145
accounting could be awarded. The court may render judgment to one or more of them.
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In MIRANDA V. COURT OF (2) Appeal by record on appeal: proper only in

148
APPEALS, 1976, in multi-tiered TWO INSTANCES:
proceedings, appeal agad, and you a. Special proceedings;
must not wait for the others. b. In cases of multiple or separate
 Does that last phrase mean that you appeals (several and separate
must first ask for permission to judgments), where the Rules so
appeal, or to appeal and see whether require and admit multiple appeals. .
the court will allow it? ii. PETITION FOR REVIEW [b]: to the Court of
(g) An order dismissing an action without prejudice. Appeals.
 Even if it is a final order. iii. PETITION BY CETIORARI [c]: where only
 If defendant files a MTD on the ground of questions of law are raised to the Supreme Court.
lack of jurisdiction, and the court grants the
motion and orders the dismissal of the case, SEC. 5. RULE 36, LAST SENTENCE: separate judgment
and the plaintiff disagrees, is that a final is rendered: the court may stay its enforcement until the
order? YES, as it completely disposes of the rendition of subsequent judgment.
case.
 As it is a WITHOUT PREJUDICE,  What can be stayed: the enforcement only, BUT
there is NO REMEDY OF APPEAL. NOT THE PERIOD WITHIN WHICH TO APPEAL.
 EXCEPT (f), (h) and (i) as they are  Judgment can be enforced as a matter of right if it
146 is final and executory.
WITH PREJUDICE , so remedy of
appeal is AVAILABLE.
 NOT APPEALABLE, as it is a i. ORDINARY APPEAL: how to we perfect an appeal?
dismissal without prejudice.
 So take note, even if it is a final  Appeal as a matter of right, unlike petition for
order (it completely disposes off review and petition for certiorari.
the case), see still if the dismissal  When is an ordinary appeal allowed?
is with or without prejudice. (1) An appeal from the MTC to the RTC;
 If it is with prejudice, (2) An appeal from the RTC in cases within its
APPEALABLE. original jurisdiction;
 If such, then the appeal to the Court
 If it is without prejudice, it is
of Appeals is by ordinary appeal.
NOT appealable.
 However (see right below)
 SEC. 5, RULE 117: if a MTQ is
147
sustained (without prejudice ),
ii. PETITION FOR REVIEW: Where the decision of the
EXCEPT when the motion is based
RTC is in the exercise of its appellate jurisdiction—
on (g) Extinguishment of criminal
meaning it is a case which originated from the MTC—
liability and (i) Double jeopardy of
then the appeal is not anymore by ordinary appeal.
Sec. 3 (SEC. 6), then, it is NOT
appealable.
 How perfected? In accordance with RULE 42.
 REMEDY is an appropriate civil action:
petition for certiorari, mandamus or
iii. CERTIORARI: NATURE: where only questions of
prohibition → ORIGINAL ACTION, and NOT
law are raised, NOT questions of fact, OR mixed
an appeal.
questions of fact or law.
 ORIGINAL: refers to the power of the court
to hear a particular case in the first instance.
 ONLY: only one, and NOT mixed.
 APPEAL: where a case has already been
 Example of a question of FACT: when the judgment
decided by a lower court, and it is retried or
of the court is contrary to the evidence or contrary
reheard before a superior court, and it is just
to law.
a continuation of the exercise of jurisdiction.
 Where only questions of law are raised: SUPREME
 NATURE OF RIGHT TO APPEAL: COURT, and perfection is in accordance with
statutory, and not a constitutional, RULE 45.
right.  Can you appeal a decision of the RTC, hearing a
 Due process only requires that cases in its original jurisdiction, to the SC directly,
you have been heard/tried bypassing the CA? YES, if it only involve questions
once. of law.
 From the CA to the SC: can you raise a question of
SEC. 2: MODES OF APPEAL: fact? NO, as you can only raise a question of law.
 Though there are EXCEPTIONS.
i. ORDINARY APPEAL (Sec. 2[a]):  What if from the MTC, can you file to the SC
(1) Appeal by notice of appeal: in all other directly via RULE 45? YES, if only questions of law
cases. are raised / involved.
 As that appeal to the SC is discretionary;
baka mapalpak ka.
146
Shall bar the filing of the same action.
147 148
Court may order the case to be refiled. In all other cases, appeal is by mere notice of appeal.
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 But if it is through ORDINARY APPEAL, that

is an appeal which is a matter of right.  Also applicable from MTC to RTC.
 The appellate court has no discretion  OLD RULE: remaining balance.
on WON to accept the appeal.  FRESH PERIOD RULE: 15- or 30-day period
 If it is a PETITION FOR REVIEW or BY starts anew from notice of the judgment or final
CERTIORARI, that is discretionary. order appealed from, or notice of the denial of the
MR/MNT.
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RULE 40: APPEAL FROM MUNICIPAL TRIAL
CONTENTS OF A NOTICE OF APPEAL:
COURTS TO THE REGIONAL TRIAL COURTS
(1) The parties to the appeal,
(2) Judgment or final order or part thereof appealed
SEC. 1: HOW TO PERFECT AN APPEAL: MTC to the from;
RTC exercising jurisdiction over the area to which the (3) To what court you are appealing to;
MTC pertains. (4) The material dates showing the timeliness of the
151
appeal (MATERIAL DATA RULE);
 So if the plaintiff lost, it shall be ―plaintiff-appellant  To show that the appeal was seasonably
vs. defendant-appellee.‖ filed within the period.
 The title remains the same, and the designation is  ―Since this is filed within xxx days from
the only one which changes. receipt, thus, the appeal is timely filed.‖
 PERFECTION OF AN APPEAL: when and how to (5) Serve notice to the adverse party within the same
appeal. period.
 Right to appeal is not a constitutional right,  If not served, kulang ka → the appeal has
and since it is only a privilege to be heard not been perfected.
the second time around, the appellant must
follow the procedure strictly laid down by the SEC. 4: governed by the provisions of SEC. 9, RULE 41:
law.
 If there is failure to comply, then the right to  Is the mere perfection of an appeal result of having
appeal is lost, an effect of depriving the court of its jurisdiction
over the case? NO.
SEC. 2: WHEN TO APPEAL:
SEC. 5: like filing fees.
a. Within FIFTEEN (15) DAYS after notice of
judgment or final order;  TO WHOM: to the COC which rendered the
b. Within THIRTY (30) DAYS, where record on appeal judgment or final order appealed from.
is required from notice of judgment or final order by  Proof of payment → to be transmitted to the
filing a notice of appeal and a record on appeal. appellate court with the record of the case.
SEC. 5: payment of court docket and other lawful fees. SEC. 6: WHEN SHOULD THE RECORDS OF THE CASE
BE ELEVATED TO THE RTC? Within FIFTEEN (15)
(1) APPEAL BY MERE NOTICE: file notice of appeal DAYS from the perfection of the appeal.
and pay appellate docket fees within 15 days from
notice (receipt) of the judgment appealed.  Once the appeal has been perfected.
(2) RECORD ON APPEAL:  Certify as complete by the COC of the lower court.
(1) Notice of appeal;  Parties must likewise be furnished.
(2) Record on appeal;
(3) Pay the appropriate dockets fees (within the SEC. 7: PROCEDURE IN THE RTC:
same period);
 The Clerk of Court that rendered the
judgment, NOT to the appellate court.
(4) Within THIRTY (30) DAYS from notice of the
judgment appealed.
more. To standardize the appeal periods provided in the Rules and to
SEC. 3, RULE 41: If a timely MR/MNT is filed, when afford litigants fair opportunity to appeal their cases, the Court deems
should you perfect an appeal when it is denied? NEYPES it practical to allow a fresh period of 15 days within which to file the
150
V. COURT OF APPEALS (2005) . notice of appeal in the Regional Trial Court, counted from receipt of
the order dismissing a motion for a new trial or motion for
reconsideration. Henceforth, this "fresh period rule" shall also apply to
149
EXCEPT RULE 47, as it is an action for the annulment of judgment → Rule 40 governing appeals from the Municipal Trial Courts to the
that is NOT an appeal. Regional Trial Courts; Rule 42 on petitions for review from the Regional
150
The Supreme Court may promulgate procedural rules in all courts. It Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-
has the sole prerogative to amend, repeal or even establish new rules judicial agencies to the Court of Appeals and Rule 45 governing appeals
for a more simplified and inexpensive process, and the speedy by certiorari to the Supreme Court. The new rule aims to regiment or
disposition of cases. In the rules governing appeals to it and to the make the appeal period uniform, to be counted from receipt of the
Court of Appeals, particularly Rules 42, 43 and 45, the Court allows order denying the motion for new trial, motion for reconsideration
extensions of time, based on justifiable and compelling reasons, for (whether full or partial) or any final order or resolution.
151
parties to file their appeals. These extensions may consist of 15 days or Rule 41: Include to what court you are appealing.
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(1) Upon receipt of the complete record / record on SEC. 9: applicability of RULE 41.
appeal, the COC of the RTC shall notify the parties
of such fact.  Insofar as not inconsistent and serve to supplement
(2) Within FIFTEEN (15) DAYS from such notice, the provisions of RULE 40.
appellant must submit its memorandum.  WHEN NOT APPLICABLE: if inconsistent with
 Failure to file shall be a ground for dismissal RULE 41.
of the appeal.
 On the part of the appellant, it is mandatory NOVEMBER 3, 2016
for him to file a memorandum (like
appellant’s brief). RULE 41: APPEAL FROM THE REGIONAL TRIAL
(3) Within FIFTEEN (15) DAYS from the receipt of the
COURTS
appellant’s memorandum, the appellee may file his
memorandum.
(4) Upon the filing of the appellee’s memorandum or REGIONAL TRIAL COURT:
expiration of the period to do so: case is submitted
for decision. SEC. 3: PERIOD OF ORDINARY APPEAL:
BASIS OF THE DECISION OF THE RTC: entire records  See previous notes on period and how appeal is
of the proceedings in the court of origin elevated to it AND made.
the memoranda of the parties.  EXCEPT appeals for habeas corpus: within FORTY
EIHT (48) HOURS from notice of the judgment or
 No hearing: one is heard the second time through final order appealed from.
their memoranda.
PERIOD, WHEN INTERRUPTED: filing for a MTR or MR.
APPELLANT’S MEMORANDUM: file his memorandum
within 15 day AND furnish the same to the appellee.  EFFECT: It shall interrupt the period within which to
perfect the appeal.
 If not complied with, the appeal may be dismissed.  No motion for extension of time shall be allowed to
file MNT and MR.
SEC. 8: INSTANCES WHERE THE PROCEDURE FOR  If a MNT / MR is denied, within what period
APPEAL DIFFERS FROM APPEALS FROM THE RTC of time shall the aggrieved party perfect his
TO THE CA: only applicable for appeals from MTC to the appeal? FRESH PERIOD RULE.
RTC.  That does not just apply to the
decisions of the RTC being appealed
 The case was dismissed without trial on the merits to the CA.
→ RTC may affirm or reverse it.  ALSO applicable to decisions of the
 As when an MTD is filed on the ground of MTC appealed to the RTC. (PCI
res judicata. LEASING FINANCE V. MILAN,
 There was no trial on merits in that case. 2010)
152
 IF AFFIRMED, AND THE GROUND IS LACK OF

JURISDICTION OVER THE SUBJECT MATTER → 152
RTC, if it has jurisdiction, shall try/hear the case on In accordance with Section 3, Rule 41 63 of the Rules of Court, an
the merits, as if the case ORIGINALLY filed with it. ordinary appeal of a judgment by the RTC shall be taken within fifteen
(15) days from notice of the judgment or final order appealed from.
 IF REVERSED: remanded for further
Said period shall be interrupted by a timely motion for new trial or
proceedings.
reconsideration. In Neypes v. Court of Appeals, 64 the Court had the
 IF CASE WAS TRIED ON THE MERITS BY THE occasion to clarify the rule regarding the period within which an appeal
LC WITHOUT JURISDICTION OVER THE may be taken should a motion for new trial or reconsideration be filed.
SUBJECT MATTER → the RTC on appeal shall not Thus:
dismiss the case again.
 If it has jurisdiction, shall decide on the case. To standardize the appeal periods provided in the Rules and to
 Without prejudice to the admission of afford litigants fair opportunity to appeal their cases, the Court
amended pleadings and additional evidence deems it practical to allow a fresh period of 15 days within which
in the interest of justice. to file the notice of appeal in the Regional Trial Court, counted
 If the defendant files a MTD in the MTC on the from receipt of the order dismissing a motion for a new trial or
ground that the latter has no jurisdiction, and the motion for reconsideration.
MTC dismissed it, agreeing with the appellant:
 GENERAL RULE: that order of dismissal is Henceforth, this "fresh period rule" shall also apply to Rule 40
not appealable under RULE 41, as that kind governing appeals from the Municipal Trial Courts to the Regional
of dismissal is a dismissal WITHOUT Trial Courts; Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals; Rule 43 on appeals from
prejudice.
quasi-judicial agencies to the Court of Appeals and Rule 45
 EXCEPTION: MTC → if the MTC dismisses
governing appeals by certiorari to the Supreme Court. The new
the case on a MTD on the ground of lack of rule aims to regiment or make the appeal period uniform, to be
jurisdiction, it is APPEALABLE. counted from receipt of the order denying the motion for new
 ONLY if the MTC has no jurisdiction over the trial, motion for reconsideration (whether full or partial) or any
subject matter → if all others, see if with prejudice. final order or resolution.
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 Similarly, you cannot file a motion for (1) This fresh period rule shall also apply
extension of time within which to perfect an to Rule 40 governing appeals from the
appeal. MTC to the RTC.
 REASON: (2) Petitions for review from the RTC to
 Under the OLD RULES, you can file a the CA,
motion for extension of time within which to (3) Appeals from quasi-judicial agencies
perfect an appeal. from the CA;
 HABALUYAS ENTERPRISES, INC. (4) Petitions of appeal by certiorari to the
V. JAPZON, 1985: the TC has no SC.
authority to extend the period to
perfect an appeal, or for that matter a SEC. 4: full payment of the docket and other lawful fees to
MNT and MR, as the same should be the COC (from which the decision is appealed from).
filed within the period to perfect an
153
appeal (SEC. 1, RULE 37 ). SEC. 5: NOTICE OF APPEAL:
 The effect of filing a MNT under this
Rule is it will toll the running of the  CONTENTS:
period within which to appeal. a. Parties;
b. Judgment or final order appealed from, or
BAYACA v. IAC (1986), FERIA, J.: because of the portion thereof;
Habaluyas ruling, you cannot anymore file a motion of c. The material dates showing the timeliness of
extension of time within which to perfect an appeal. the appeal: to show that it was seasonably
filed.
o HOWEVER, if the appeal is by record on appeal,
you can file a motion for extension of time within FORM; RECORD ON APPEAL:
which to file the record on appeal.
(1) Full names of all the parties to the proceedings
o The filing of notice of appeal cannot be beyond
stated in the caption of the record;
thirty (30) days, neither the payment of docket (2) The judgment or final order from which the appeal
fees. is taken;
o But the appellant may ask for an extension of time (3) In chronological order, copies of ONLY such
to file record on appeal. pleadings, petitions, motions and all interlocutory
orders as are related to the appealed judgment for
NOTE: On May 30, 1986, this Court, speaking through Mr. the proper understanding of the issue involved.
Justice Jose T. Feria, restated and clarified the rule on this  Must be relevant to the understanding of the
point as follows: ―1. Beginning one month after the appeal.
promulgation of this Resolution, the rule shall be strictly  If not relevant, do not include the same.
enforced that no motion for extension of tie to file a motion  Example: Motion for Postponement →
for new trial or reconsideration may be filed with the IF it is not relevant.
Metropolitan or Municipal Trial Courts, the Regional Trial  CHRONOLOGICAL: which came first based
Court, and the Intermediate Appellate Court. Such motion on the dates.
may be filed only in cases pending with the Supreme (4) The appeal was perfected on time: repeat the
Court as the court of last resort, which may in its sound material dates (MATERIAL DATA RULE).
discretion either grant or deny the extension requested.‖ In (5) ISSUE OF FACT: by reference all the evidence,
testimonial and documentary, taken upon the
other words, or up to June 30, 1986, within which the rule
issues involved.
barring extensions of time to file Motions for new trial or  By exhibit number or letter when it was
reconsideration is, as yet, not strictly enforceable. admitted or identified during the hearing, or
by the names of the witnesses.
 WHOLE TESTIMONY OF THE
 If a MNT/MR was denied, within what time does he WITNESSES: statement to that effect is
have to perfect an appeal? FRESH PERIOD sufficient without mentioning the names or
(NEYPES V. COURT OF APPEAL). the numbers or letters of exhibits.
 Applicable to decisions of the MTC (PCI  If only specific ones: specify them, on the
LEASING FINANCE V. MILAN). markings, and the witnesses.
(6) If exceeding 20 PAGES: must include a subject
index.
xxx xxx xxx
SEC. 7: APPROVAL OF RECORD ON APPEAL:
To recapitulate, a party litigant may either file his notice of appeal
within 15 days from receipt of the Regional Trial Court's decision
 Three things: file notice and record on appeal, pay
or file it within 15 days from receipt of the order (the "final
order") denying his motion for new trial or motion for
the docket fees within the period of thirty (30) days.
reconsideration. Obviously, the new 15-day period may be availed  Upon service to the adverse party of the record on
of only if either motion is filed; otherwise, the decision becomes appeal, he can object to the sufficiency of the
final and executory after the lapse of the original appeal period record on appeal.
provided in Rule 41, Section 3. (Emphases ours.)  If the adverse party and the court, motu
153
“Within the period of taking an appeal…” proprio, is of the opinion that there were
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omissions in the pleadings, an objection may now to the CA

be filed. (RULE 43).
 If not objected by the appellee within five (5) days  Before, there was
from receipt of the copy of the record of appeal: TC no appeal, but
may only through a
(1) Approve it as presented, or petition by
(2) Direct its amendment by the inclusion of certiorari to the
omissions deemed essential. SC, which is an
 AMENDMENT: within TEN (10) DAYS [if no time is original action.
fixed by the order] from receipt thereof, shall redraft  House electoral tribunal,
the record, for approval, upon notice to the senate electoral tribunal,
appellee, in like manner as the original draft. presidential electoral
tribunal.
SEC. 8: where both parties are appellants, they may file a
JOINT RECORD ON APPEAL. SEC. 9: WHEN APPEAL IS PERFECTED:
GENERAL RULE: when an appeal is made from the MTC (1) NOTICE OF APPEAL: deemed perfected as to him
to the RTC, or the RTC to the CA, the entire records of the (ONLY) upon the filing of the notice of appeal in
case are elevated to the appellate court. due time.
(2) RECORD ON APPEAL: as to him (ONLY) upon
 Why is there still record on appeal? In special approval of the record on appeal field in due time.
proceedings, and in cases which the law requires
multiple appeals, the appeal is BY RECORD ON WHEN THE COURT LOSES ITS JURISDICTION BY
APPEAL. NOTICE OF APPEAL: two events:
 REASON: For multi-tiered proceedings.
 If the record will be elevated when one issue (1) Upon perfection of the appeal in due time;
is resolved, the lower court will be (2) Expiration of the time to appeal of the other parties.
immobilized on resolving the other issues.
 EXAMPLE: expropriation cases: WHEN THE COURT LOSES ITS JURISDICTION OVER
 WON plaintiff has the right to THE SUBJECT MATTER THEREOF BY RECORD ON
expropriate: order of expropriation is APPEAL:
issued as a form of judgment.
 Appealable by record on (1) Upon the approval of the records of appeal filed in
appeal. due time; and
 If the entire record is elevated, (2) Expiration to appeal by the other parties.
then the lower court can no
longer determine the just In either case, after the court has lost its jurisdiction over
compensation. the case (it cannot anymore substantially alter the
 For purposes of the resolution judgment), the jurisdiction is now shifted to the appellate
of the issue appealed, the court.
basis will be the record.
 WHY THIRTY (30) DAYS? You need more time  The Lower Court still retains RESIDUAL
within which to prepare and file a record on appeal. JURISDICTION: prior to the transmittal of the
 You can file a motion for extension of time record or record on appeal, the court may issue:
within which to submit for approval the (1) Protection, preservation of the rights of the
record on appeal, but not the notice of parties, provided it does not involve any
appeal and payment of the appellate docket matter raised on the appeal;
fee.  Example: appointment of a receiver.
 State the material dates (MATERIAL DATA (2) Approve compromise;
RULE). (3) Permit appeals of indigent litigants;
 REASON: an appeal is not a (4) Order execution pending appeal (SEC. 2,
constitutional right, and not part of RULE 39);
due process. (5) Allow withdrawal of appeal.
 It is merely a privilege.  Once elevated: NO RESIDUAL JURISDICITON
 There are certain instances ALREADY.
where the law does NOT
allow an appeal: SEC. 10: DUTIES OF THE CLERK OF COURT: PERIOD:
 From decisions of THIRTY (30) DAYS from the perfection of all the appeals.
Constitutional bodies,
unless otherwise  If MTC to the RTC: FIFTEEN (15) DAYS from the
provided by law. notice of the RTC that the records are now in it
 EXCEPT: (SEC. 6, RULE 40).
Decision of the  Then appellant will file his memorandum
within 15 days (SEC. 7) thereafter.
CSC, appealable
 LETTER OF TRANSMITTAL: to be written by the
COC of the lower court.
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 To be furnished to the parties.  APPEALS BY RECORD ON APPEAL: Within ten

(10) days from receipt of said notice, the appellant,
SEC. 11: TRANSCIPT: five copies of the testimonial shall file with the COC seven (7) clearly legible
evidence referred to in the record on appeal. copies of the approved record on appeal, together
with the proof of service of two (2) copies thereof
SEC. 12: TRANSMITTAL: original records or the upon the appellee.
approved record on appeal within THIRTY (30) DAYS  So if there is already notice from the CA that the
from the perfection of the appeal, and proof of payment, records are complete, the appellant must submit
etc. the copies of the record on appeal.
 GROUND FOR DISMISSAL OF APPEAL: Any
SEC. 13: prior to the transmittal, the TC may motu proprio unauthorized alteration, omission or addition.
or on motion, dismiss the appeal for:
SEC. 5: COMPLETION OF RECORD: it is the duty of the
(1) Having been taken out of time or court to complete the same within the shortest possible
(2) Non-payment of the docket and other lawful fees time.
within the reglementary period.
SEC. 6: DISPENSING WITH COMPLETE RECORD: due
The TC CANNOT dismiss the appeal on the ground that it to insuperable or extremely difficult causes, may declare
was FRIVOLOUS. that the records so far available are already sufficient to
decide the issues.
 The TC can only dismiss the appeal based on the
two grounds above.  Issue an order explaining the reasons for such
 Of course, the lower court will always believe that declaration.
its decision is correct, and that any appeal  As when the records are lost, or eaten 
therefrom is a frivolous one.
SEC. 7: APPELLANT‘S BRIEF: within FORTY-FIVE (45)
DAYS from receipt of the notice of the clerk that the
records are complete.
RULE 44: ORDINARY APPEALED CASES
MTC to RTC RTC to CA
ORDINARY APPEAL (RULE 41): by mere notice or by
record on appeal. Memorandum Appellant’s Brief
 Cases appealed to the CA from the MTC (after FIFTEEN (15) DAYS from FORTY-FIVE (45) DAYS
going through the RTC). receipt of notice. from receipt of notice.
SEC. 1: TITLE OF CASES: title will remain as it was in the

court of origin. SEC. 8: APPELLEE‘S BRIEF: within FORTY-FIVE (45)
DAYS from receipt of the appellant’s brief.
 APPELLANT: party appealing the case.
 APPELLEE: adverse party. SEC. 9: APPELLANT‘S REPLY BRIEF: within TWENTY
(20) DAYS from receipt of the appellee's brief may file a
SEC. 2: COUNSEL AND GUARDIANS: if umiba yung reply brief answering points in the appellee's brief not
abogado mo, go through the usual withdrawal of covered in his main brief.
appearance.
 Discretionary.
 Withdrawal of the counsel need NOT be with the  MTC to RTC: no such thing as Reply
approval of the court if it is with the consent of the Memorandum.
client.
 If no consent of the client, the approval of the court SEC. 10: di kasama iyan dito.
must be sought.
SEC. 11: SEVERAL APPELLANTS OR APPELLEES:
SEC. 3: ORDER OF TRANSMITTAL: if not transmitted MANY COUNSEL → one copy may be served to any one
within THIRTY (30) DAYS, either party may file a motion of his counsel.
with notice.
 If the counsel is representing many
 If you do not do so, especially for the appellant, appellants/appellees, then you will only be served
then he might be guilty for failure to prosecute one copy.
appeal.  Ordinarily, one copy per party; but if you are
 EFFECT OF FAILURE TO PROSECUTE: render representing many, then they all get just one
the judgment of the TC final and executory. copy.
SEC. 4: DOCKETING OF THE CASE: COC of the CA SEC. 12: EXTENSION OF TIME FOR FILING BRIEFS,
shall docket the case and notify the parties. EXCEPTION: must be for good and sufficient cause, and
only if the motion for extension is filed before the
 ―C.A.—G.R. No.‖ expiration of the time sought to be extended.
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 They must be raised seasonably: MTD or

 NOTE: ginagawa daw ito ni Prof. palagi. Answer.
 Customary, in the CA, that is around ninety (90)  EXCEPTIONS:
days. (1) Lack of jurisdiction over the subject
 Reasons: heavy workload, sickness. matter;
(2) An issue not properly raised during
SEC. 13: CONTENTS OF THE APPELLANT‘S BRIEF: trial when there is plain error;
Read. (3) When there are jurisprudential
developments affecting the issues; or
(a) Subject index of the matter in the brief and a table (4) When the issues raised present a
of cases alphabetically arranged, textbooks and matter of public policy.
statutes cited with references;  File a MTD on the ground of improper venue and it
(b) Assignment of errors separately, distinctly and was denied. Can you raise it again? YES, as it is
concisely stated without repetition and numbered raised in the court below.
consecutively;  If it is an interlocutory order, you cannot appeal
(c) "Statement of the Case,‖ a clear and concise that, but you can raise that as a defense later on.
statement of the nature of the action, a summary of  Underlying reason: due process → the other party
the proceedings, the appealed rulings and orders of must be given the opportunity to object or place a
the court, the nature of the judgment and any other defense.
matters necessary to an understanding of the
nature of the controversy with page references to RULE 42: PETITION FOR REVIEW
the record;
(d) "Statement of Facts," a clear and concise statement
in a narrative form of the facts admitted by both
parties and of those in controversy, together with RULE 42: If the RTC has rendered judgment in the
the substance of the proof relating thereto in exercise of its APPELLATE JURISDICTION.
sufficient detail to make it clearly intelligible, with
page references to the record; SEC. 1: HOW APPEAL TAKEN: verified petition for
(e) Statement of the issues of fact or law; review with the CA and payment of the corresponding
(f) "Argument," the appellant's arguments; docket and other lawful fees [to the CA], costs, furnish the
(g) "Relief," a specification of the order or judgment RTC and the adverse party with the copy of the petition.
which the appellant seeks; and
(h) If not brought up by record on appeal: appendix, a  PETITION FOR REVIEW and PAYMENT OF FEES
copy of the judgment or final order appealed from. within the period of 15 days from receipt of the copy
of the judgment or final order, or from notice of the
SEC. 14: CONTENTS OF THE APPELLEE‘S BRIEF: denial of the MNT or MR (FRESH PERIOD RULE).
 WHEN PERFECTED: Petition for review, payment
(a) Subject index of the matter in the brief and a table and deposit of cost BEFORE expiration of the
of cases textbooks and statutes cited; period to file.
(b) "Statement of Facts," the appellee shall state that  UNLESS granted ANOTHER FIFTEEN (15)
he accepts the statement of facts in the appellant's DAYS within which to file the petition for
brief, or "Counter-Statement of Facts," he shall review.
point out such insufficiencies or inaccuracies as he  No further extension shall be granted except
believes exist; and for the most compelling reason and in no
(c) "Argument," the appellee shall set forth his case to exceed FIFTEEN (15) DAYS.
arguments in the case on each assignment of error  In which case, THIRTY (30) DAYS in all.
with page references to the record.  Filing with the CA AND serving copies to the RTC
and to the adverse party.
SEC. 15: QUESTIONS THAT MAY BE RAISED ON  WHEN: FIFTEEN (15) DAYS from notice.
APPEAL: the appeal can raise only questions of law or  WHERE FILED: Court of Appeals.
fact that:
(1) Has been raised in the court below; and

(2) Which is within the issues framed by the parties. RULE 42 RULE 40 and 41
Example: There was non-compliance of condition PAYMENT OF Paid to the court of origin
precedent (non-referral to the Lupon for conciliation), and APPELLATE DOCKET (the court which rendered
a MTD was filed, but was denied, can you still raise that AND LAWFUL FEES: paid the judgment being
on appeal? YES, as that has been raised in the court to the Court of Appeals. appealed).
below AND which is within the issues framed by the
parties. FILING OF A MOTION NOT allowed: an appellant
FOR EXTENSION OF cannot file such motion.
 But if you never raised it in a MTD, can you raise TIME WITHIN WHICH TO
that? NO, waived. PERFECT AN APPEAL:
 Defenses and objections not raised in a MTD petitioner is allowed to do
are deemed waived.
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so → FIFTEEN (15) DAYS. dismissed outright, the appeal under RULE 42 is NOT a
matter of right.
 CA has the discretion to dismiss the case outright.

- Only upon motion  REASON: kasi pangalawang appeal ka na.
and payment.  If the case will reach to the SC, that is a total
of four courts which heard the case.
TIME FOR FILING: FIFTEEN (15) DAYS from notice of SEC. 5: CONTENTS OF COMMENT: when the
decision, OR from denial of petitioner’s MNT or MR. petitioner’s record are not sufficient, respondent shall file
the certified true copies of the omitted portions.
 Can the appellant-petitioner file a motion for
extension of time within which to file the petition for  Same as with the statement of facts.
review? YES, upon motion and payment of the  That is why we have trials: there is always
fees, before the expiration of the reglementary two sides of a story.
period.
 For FIFTEEN (15) DAYS within which to file the SEC. 6: DUE COURSE: since this is discretionary, the
petition for review. court may or may not give due course to the petition.
 REASON: all your arguments are already
there in the petition for review.  If CA finds prima facie that the lower court
 Unlike in an ordinary appeal, the record committed an error of fact or law, which shall
would have to be transmitted first, then you warrant the reversal of the decision: give due
have forty-five (45) days. course.
 After considering the petition and the
SEC. 2: FORM AND CONTENTS: See Memory Aid. comment filed.
 Otherwise, the petition will be denied due course.
 PETITIONER: the appellant.
 RESPONDENT: the adverse party. SEC. 7: ELEVATION OF RECORD: this is discretionary.
 ―This is a Petition for Review under Rule 42, ROC
of the judgment of the RTC, Br. xx in Civil Case No.  When CA deems it necessary.
xx, which originated from the MTC, Br. xx‖  PERIOD: within FIFTEEN (15) DAYS from notice.
 So you know where it came from.  If not necessary, the hearing for the petition will
 Statement of the material dates, of the case, of the continue.
facts, and errors of the TC, arguments.
 Like a brief. SEC. 8: PERFECTION OF APPEAL AND EFFECT:
 Depende on how you will arrange it. WHEN TC LOSES JURISDICITON OVER THE CASE:
 Duplicate-original true copies of the judgment and
final orders by both of the LC, certified correct by
the COC of the RTC. AS TO THE PETITIONER AS TO OTHER PARTIES
 Nandoon na din yung record of the case. (WHEN APPEAL IS (WHEN LC LOSES
 By the COC of the RTC as all the records DEEMED PERFECTED) JURISDICTION)
have been elevated to the RTC → the record
stays there. (1) Timely filing of the (1) Upon perfection of the
 CERTIFICATION OF NON-FORUM SHOPPING
petition, and appeals filed in due
(2) Payment of the docket time, and
SEC. 3: EFFECT OF FAILURE TO COMPLY WITH THE
REQUIREMENTS: sufficient ground for the dismissal and other lawful fees (2) The expiration of the
thereof: time to appeal of the
other parties.
(1) To pay the docket and other lawful fees,
(2) The deposit for costs,
(3) Proof of service of the petition, and  RESIDUAL JURISDICTION OF THE RTC: WHEN:
(4) The contents of and the documents which should (1) Issue orders for the protection and
accompany the petition: if not certified true copies, preservation of the rights of the parties which
especially of the judgment. do not involve any matter litigated by the
 REASON: the Rule provides for such. appeal,
(2) Approve compromises,
SEC. 4: ACTION ON THE PETITION: CA may: (3) Permit appeals of indigent litigants,
(4) Order execution pending appeal in
(1) Require the respondent to file a COMMENT within accordance with section 2 of Rule 39, and
TEN (10) DAYS from receipt; (5) Allow withdrawal of the appeal.
(2) Dismiss the petition outright: it will not grant a  CUT-OFF OF RESIDUAL JURISDICTION: before
review. CA gives due course to the petition.
 If already given due course: NO more
NOTE: so unlike an appeal in the first instance (from MTC residual jurisdiction.
to the RTC) which is a matter of right and cannot be
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 OTHER THAN SUMMARY PROCEDURE: appeal authorized by any quasi-judicial agency in the exercise of
shall stay the judgment or the final order. its quasi-judicial functions.
 EFFECT OF AN APPEAL (RULE 40): stays
execution.  Administrative bodies are part of the executive
 Same effect as in RULE 41, as the judgment branch.
thereon is not yet final and executory.  They only execute the law.
 As under SEC. 1, RULE 39: execution as a  They do not sit in judgment; they do not have
matter of right if only after the judgment has judicial powers.
become final and executory.  However, Congress, in its infinite wisdom and
 EXCEPTIONS: SEC. 4, RULE 39: when knowledge, confers upon these administrative
execution may issue pending appeal: bodies what is known as QUASI-JUDICIAL
a. Judgments in actions for injunction, FUNCTIONS.
b. Receivership,  This is where the law allows them to be
c. Accounting and judges.
d. Support, and  When does an administrative agency exercise
e. Where the law or the Rules allow QUASI-JUDICIAL FUNCTIONS? Only when they
execution notwithstanding appeal. are called upon to resolve a controversy.
 If there is no controversy, then that is not
CASES COVERED UNDER THE SUMMARY RULES: quasi-judicial → that is only purely executive.
within the original jurisdiction of the MTC.  ADMINISTRATIVE/EXECUTIVE
FUNCTION: subject to judicial appeal? NO,
 GENERAL RULE: Once the MTC renders a EXCEPT when there is grave abuse of
decision, and an appeal is made to the RTC under discretion (The second aspect of judicial
RULE 40, the judgment appealed from is STAYED. power).
 EXCEPTION: In summary rules, the decision of the  But when an administrative agency resolves
RTC becomes executory as a matter of right, a controversy, then it sits as a JUDGE.
without prejudice to further appeal under RULE 40.  Therefore, its decision is subject to
 So an appeal under RULE 42, in cases covered by appeal by the courts.
Summary Rules, shall NOT anymore stay the  That is not grave abuse.
execution of judgments by the RTC.  In other words, GAD is under RULE 65 →
 SEC. 4, RULE 39: (e) Where the law or Rules that is an ORIGINAL ACTION.
provide otherwise.  It raises issues of jurisdiction:
 Under Summary Rules, once the RTC renders meaning, no jurisdiction, or acted in
judgment in the exercise of its appellate jurisdiction, excess of jurisdiction, or with grave
that judgment of the RTC is IMMEDIATELY abuse of discretion.
EXECUTORY if it is covered by Summary  You are raising jurisdictional
Procedures, without prejudice to further appeal issues.
under RULE 42.  But in an APPEAL, you raise
ERRORS OF JUDGMENT, not errors
SEC. 9: SUBMISSION FOR DECISION: if given due of jurisdiction.
course by the CA, it may:  Although sometimes in
appeals, such errors can be
(1) Set the case for oral argument or raised.
(2) Require the parties to submit memoranda within a  But when you invoke the court’s
period of FIFTEEN (15) DAYS from notice. exercise of the GA clause under the
Constitution, you must always raise
WHEN DEEMED SUBMITTED FOR DECISION: upon the an error of jurisdiction, in which case
filing of the last pleading or memorandum required by the remedy is RULE 65 → NOT an
these Rules or by the court itself. appeal.
 So therefore, among these agencies are the Civil
 Usually, the CA will ask the parties to file a Service Commission, Central Board of Assessment
MEMORANDUM/MEMORANDA, para matagal Appeals, Securities and Exchange Commission,
tagal ang pag-count ng submission for decision. Office of the President, Land Registration Authority,
Social Security Commission, Civil Aeronautics
RULE 43: APPEALS FROM THE COURT OF TAX Board, Bureau of Patents, Trademarks and
APPEALS AND QUASI-JUDICIAL AGENCIES TO THE Technology Transfer, National Electrification
COURT OF APPEALS Administration, Energy Regulatory Board, National
Telecommunications Commission, Department of
Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System, Employees
RULE 43: Practically the same as RULE 42.
Compensation Commission, Agricultural Invention
Board, Insurance Commission, Philippine Atomic
SEC. 1: This Rule shall apply to appeals from judgments
Energy Commission, Board of Investments,
or final orders of the Court of Tax Appeals and from
Construction Industry Arbitration Commission, and
awards, judgments, final orders or resolutions of or
voluntary arbitrators authorized by law.
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 REASON FOR OP: as in such instance, the petitioner specifies that the appellate jurisdiction of this
President does not sit as the chief executive, Court contemplated therein is to be exercised over "final
but as a judge. judgments and orders of lower courts," that is, the courts
 When the office acts as a judge, it is composing the integrated judicial system. It does not
not anymore in the exercise of his include the quasi-judicial bodies or agencies, hence
executive or administrative function.
whenever the legislature intends that the decisions or
 RE: LRA → when denied by the RD, and
from the LRA to the CA (RULE 43). resolutions of the quasi-judicial agency shall be reviewable
 RE: SSS → as when someone died, and he by the Supreme Court or the Court of Appeals, as specific
has two families and there is a controversy provision to that effect is included in the law creating that
as to the beneficiaries. quasi-judicial agency and, for that matter, any special
 RE: CAB → denied increase of fares. statutory court. No such provision on appellate procedure
 When an administrative agency is in the exercise of is required for the regular courts of the integrated judicial
its QUASI-JUDICIAL function, you go to court on system because they are what are referred to and already
appeal, NOT to the RTC. provided for in Section 5, Article VIII of the Constitution.
 REASON: the RTC and the quasi-judicial
bodies are equal in rank. THE REVISED RULES OF CIVIL PROCEDURE
 So you go to the CA. PRECLUDE APPEALS FROM QUASI-JUDICIAL
 However, unlike the decisions of the RTC where AGENCIES TO THE SUPREME COURT VIA RULE 45. —
you go on appeal under RULE 41, and despite Apropos to the foregoing, and as correctly observed by
being in the same rank, an appeal from a quasi- private respondent, the Revised Rules of Civil Procedure
judicial body is under RULE 43. preclude appeals from quasi-judicial agencies to the
 Which is practically the same procedure as
Supreme Court via a petition for review on certiorari under
RULE 42.
Rule 45. This differs from the former Rule 45 of the 1964
 Why is that? Because these quasi-judicial
agencies were given quasi-judicial powers Rules of Court which made mention only of the Court of
because of their EXPERTISE. Appeals, and had to be adopted in statutes creating and
 EXAMPLE: NLRC → even though no appeal providing for appeals from certain administrative or quasi-
judicial agencies, whenever the purpose was to restrict the
ST. MARTIN FUNERAL HOMES V. NLRC (1998): there scope of the appeal to questions of law. Under the present
is no appeal recognized. Rule 45, appeals may be brought through a petition for
review on certiorari but only from judgments and final
o The remedy is an original special civil action under orders of the courts enumerated in Section 1 thereof.
Rule 65: raise errors for jurisdiction, and not errors Appeals from judgments and final orders of quasi-judicial
of judgments. agencies are now required to be brought to the Court of
Appeals on a verified petition for review, under the
NOTE: While we do not wish to intrude into the
requirements and conditions in Rule 43 which was
Congressional sphere on the matter of the wisdom of the
precisely formulated and adopted to provide for a uniform
law, on this score we add the further observations that
rule of appellate procedure for quasi-judicial agencies.
there is a growing number of labor cases being elevated to
this Court which, not being a trier of fact, has at times
been constrained to remand the case to the NLRC for SEC. 2: CASES NOT COVERED: to judgment or final
resolution of unclear or ambiguous factual findings; that orders issued under the Labor Code of the Philippines.
the Court of Appeals is procedurally equipped for that
purpose, aside from the increased number of its  As there is a specific provision there.
component divisions; and that there is undeniably an
imperative need for expeditious action on labor cases as a SEC. 3: WHERE TO APPEAL: CA → whether the appeal
major aspect of constitutional protection to labor. involves questions of fact, of law, or mixed questions of
fact and law.
Therefore, all references in the amended Section 9 of B.P
No. 129 to supposed appeals from the NLRC to the SEC. 4: PERIOD TO APPEAL: within FIFTEEN (15)
Supreme Court are interpreted and refer to petitions for DAYS:
certiorari under Rule 65. Consequently, all such petitions
should henceforth be initially filed in the Court of Appeals (1) From notice of the award, judgment, final order or
resolution, or
in strict observance of the doctrine on the hierarchy of
(2) From the date of its last publication, if publication is
courts as the appropriate forum for the relief desired.
required by law for its effectivity, or
(3) Of the denial of petitioner's motion for new trial or
is allowed under the Labor Code.
reconsideration duly filed in accordance with the
NOTE: the list is NOT exclusive → kasama lahat even if
governing law of the court or agency a quo.
they are not enumerated here.
RULE: only one MOTION FOR RECONSIDERATION
 EXAMPLE: Office of the Ombudsman.
shall be allowed.
FABIAN V. DESIERTO: The very provision cited by
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 Motion AND full payment of the docket fees,  But usually, you go to the Office of the
BEFORE expiration of the period → additional President → EXHAUSTION OF
154
FIFTEEN (15) DAYS only. ADMINISTRATIVE REMEDIES.
 HOWEVER, if in the most compelling reason →
another FIFTEEN (15) DAYS. SEC. 9: CONTENTS OF COMMENT: counter it.
 Do not apply the Habaluyas Doctrine here.
 MEANING: can you file a Motion for SEC. 10: DUE COURSE: CA finds prima facie error of fact
Extension of Time within which to file the or law that would warrant reversal or modification.
appeal? YES, within FIFTEEN (15) DAYS,
and another FIFTEEN (15) DAYS for  DISCRETIONARY: ―it may give due course…‖
compelling reasons.  Findings of fact of the court or agency concerned,
when supported by substantial evidence: BINDING
SEC. 5: HOW APPEAL TAKEN → the same as in RULE on the CA.
42.  SUBSTANTIAL EVIDENCE: required in an
administrative case.
 Serve it also to the court or agency which rendered
judgment, aside from the adverse party. SEC. 11: TRANSMITTAL OF RECORD: CA may require
the transmittal of the original or a legible certified true copy
EXEMPTION AS PAUPER LITIGANT (SEC. 21, RULE 3): of the entire record of the proceeding under review.
no money or property sufficient and available for food,
shelter and basic necessities for himself and his family. SEC. 12: EFFECT OF APPEAL → here lies the difference
between this Rule and RULE 42.
 An appeal in forma pauperis → if CA denies the
Motion, petitioner shall pay the docket fees within  EFFECT: Shall NOT stay the award, judgment, final
FIFTEEN (15) DAYS from notice. order or resolution.
 EXCEPTION: UNLESS the CA shall direct
SEC. 6: CONTENTS OF THE PETITION: practically the otherwise upon such terms as it may deem just.
same as RULE 42.  In petition for review under RULE 42 (a case which
originated from the MTC and the decision subject to
SEC. 7: EFFECT OF FAILURE TO COMPLY WITH THE review is the judgment of the RTC acting as an
REQUIREMENTS: ground for the dismissal thereof. appellate court), STAYS he judgment, UNLESS
there is a law stating otherwise.
SEC. 8: ACTION ON THE PETITION: CA may:
RULE 42 RULE 43
(1) Require the respondent to file a COMMENT on the
petition not a motion to dismiss, within TEN (10) GENERAL RULE: STAYS GENERAL RULE: does
DAYS from notice, or the judgment. NOT stay the judgment.
(2) DISMISS the petition if it finds the same to be
patently without merit, prosecuted manifestly for EXCEPTION: Summary EXCEPTION: Unless the
delay, or that the questions raised therein are too Rules, etc. CA directs otherwise.
unsubstantial to require consideration.
Execution of the judgment Execution of the judgment
REMEMBER: when an agency is in the exercise of its CANNOT be had (governed may be asked from the
quasi-judicial powers, then it has the same rank as an
by the GENERAL RULE agency.
RTC.
under SEC. 1, RULE 39).
 HOWEVER, the appeal from the RTC is a matter of
right → an appeal from the decision of an agency
exercising quasi-judicial powers is  The CA may issue a Preliminary Injunction to stay
DISCRETIONARY. the execution of the judgment appealed.
 REMEMBER: exceptions under SEC. 4, RULE 39
 The court may deny due course.
 REASON: the agency a quo has the → same effect as here.
expertise.  They are immediately executory, like a
 EXAMPLE: Bureau of Mines → on who shall judgment of a quasi-judicial agency, and
be entitled to the mining concession, and the shall not be stayed by an appeal therefrom,
decision of the Bureau is appealed to the unless otherwise ordered.
Sec. of DENR, then to the Office of the  But the GENERAL RULE still remains → that you
Pres., and from there, to the CA. can ask for execution in the agency or in the court a
 Same as in the HLURB → as when one is a quo.
buyer of a subdivision of a condominium for  You can only ask for the execution of
the recovery of the payment of the purchase judgment after it has become final and
price of the condominium, then to the Office executory.
of the President OR to the CA directly
through RULE 42.
154
Exhaust all remedies within the agency or department concerned.
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OMBUDSMAN: the Supreme Court changed their minds a  However, hindi na pwede yung ―unless the
number of times regarding this issue. Court of Appeals directs otherwise.‖ Why is
that?
 BENCHMARK (publication): ―Ombudsman  Kaya nga ung appeal nasa CA na, it can
decisions in administrative disciplinary cases choose to stay its execution.
immediately executory,‖
 Upholding the rule making powers of the RULE 45: APPEAL BY CERTIORARI TO THE
Office of the Ombudsman under the
SUPREME COURT
Constitution, and RA 6770 (the Ombudsman
At of 1999), the SC recently held that the
execution of the decision of the Office of the
Ombudsman suspending a former City This is the THIRD mode of appeal: APPEAL BY
Treasurer of Albay is immediately executory, CERTIORARI / CERTIORARI as a mode of appeal.
and may not be stayed for the filing of an
appeal or the issuance of an injunctive writ.  The other kind of certiorari is CERTIORARI as a
 CORONA, J: the Court noted that under Sec. special civil action (RULE 65).
7, Rule 3, of the Rules of the Procedure of  That is NOT an appeal → it is an original
the Office of the Ombudsman, the special civil action.
Ombudsman’s decision imposing the penalty
of suspension for ONE YEAR of the former RULE 45 RULE 65
City Treasurer Samaniego is immediately
executory pending appeal. It stressed that Certiorari as a mode of Certiorari as a special civil
the promulgation of such rule is authorized appeal. action.
by ART. XI, SEC, 13, NO. 8 of the
Constitution, and SECS. 18 and 27 of RA Errors of judgments: Questions of jurisdiction: where
6770. The Court thus modified its further error in the exercise of a court or tribunal acts without
decision insofar as it declared that the the jurisdiction of the jurisdiction; or that it has
imposition of the penalty is stayed by the court. jurisdiction, but it has exceeded
filing and the pendency of the CA appeal. its exercise; or acted in GAD,
The Court explained that even in the CA, the amounting to depriving the
decisions of the Ombudsman cannot even
party of his right under the law.
issue an injunction to stop the immediate
execution pending appeal, as the Rules of
Procedure of the Office of the Ombudsman,
SEC. 1: FILING OF PETITION WITH SUPREME COURT:
supersedes the discretion given to the CA
a judgment or final order or resolution of:
under SEC. 12, RULE 43, ROC to order the
staying of the decision of the Ombudsman of
(1) The Court of Appeals,
an disciplinary case appealed to it. The
(2) The Sandiganbayan,
provisions in the Rules of Procedure in the
(3) The Regional Trial Court or
Office of the Ombudsman, that the decisions
(4) Other courts whenever authorized by law.
are immediately executory is a special rule
 EXAMPLE: MTC, quasi-judicial bodies.
that prevails over the provisions of the ROC.
When two rules apply to a particular case,
NATURE OF THIS APPEAL: purely questions of law.
that which is specially designed for the said
case must prevail over the other.
 Directed to the SC when the appeal raises only
 If there is a conflict between the special law
questions of law.
and the general law → the specific law shall
155  Under BP 129, SEC. 9: CA has jurisdiction over the
prevail.
three categories of cases:
 Professor agrees to the aforementioned as all
(1) Issuance of the extraordinary writs:
appeals under RULE 43 are immediately executory. 156
original.
 Concurrent with the CA and the RTC.
(2) Actions for the annulment of judgment of the
155 RTC (RULE 47): (exclusive) original.
Professor’s comment: actually, that is wrong. The application of the
doctrine CANNOT be had. That can only be applied if the two rules
(3) All final judgments, decisions, resolutions,
emanate from the same body that promulgated them (same rule- orders or awards of the RTC: (exclusive)
157
making body). If the same rule-making body makes two laws, then that appellate (RULE 41 if the RTC is in the
doctrine is applicable. However, here, the Rules of Procedure of the exercise of its original jurisdiction, RULE 42
Ombudsman should only apply to the Ombudsman; and those Rules if the RTC is in the exercise of its appellate
can never apply to courts. Similarly, the ROC cannot apply to the Rules jurisdiction), or quasi-judicial agencies,
of the Ombudsman. The Rules of Ombudsman is promulgated by the instrumentalities, boards, or commissions,
Ombudsman, and the ROC is promulgated by the Court. Thus, the including the SEC, SSC, etc.
doctrine cannot apply, they emanating from two rule-making bodies.
156
NOTE: Also for COMELEC, there are special rules promulgated by the SC It is an exercise of a court or tribunal over a case in the first instance.
157
in election cases. But they refer only to the procedure in court. If the Authority of a superior court to rehear a case, which has already
same is appealed to the COMELEC, the Rules of COMELEC shall apply. been tried and decided by a lower court.
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 EXCEPT those falling within the  So, if the judgment of the RTC is
appellate jurisdiction in accordance issued in the exercise of its appellate
with the Constitution, under the Labor jurisdiction, then, indeed, it is fact OR
Code, and Sec. 17 of the Judiciary law.
Act of 1948 (pure questions of law).
Suppose the judgment of the MTC was appealed to the
WHEN APPEAL TO THE SC IS MADE FROM THE RTC: RTC, and you are raising pure questions of law, does the
when you are raising PURE QUESTIONS OF LAW. RTC have competence to hear the same? YES, whether
question of fact, of law, or mixed.
APPELLATE JURISDICTION OF THE SUPREME
COURT UNDER THE CONSTITUTION (SEC. 5A): the SC  You can go to the RTC.
shall have the power to review, revise or reverse, or affirm  STATUTORY BASIS: SEC. 22, first sentence →
on appeal either by appeal or by certiorari: ―the RTC shall exercise appellate jurisdiction over
all cases decided by the MTC xxx.‖
(1) Where the constitutionality of law, statute,  NO distinction.
ordinance, executive order is in issue;
(2) Where it involves the validity of any tax, impose or However, if it is a decision of the MTC and you are raising
duties; a pure question of law, can you also go directly to the SC
(3) Where the penalty imposed is reclusion perpetua or under RULE 45? YES.
higher: question of FACT (exception);
(4) Where the issue involves jurisdiction of the lower  But you do not always do that, as the appeal to the
court; SC is PURELY DISCRETIONARY.
(5) Pure questions of law (actually, Nos. 1, 2 and 4 are  If you are not given due course, patay ka na.
all questions of law).  It is better to go to the RTC, then to the CA, then to
the SC → you have many chances.
Does that mean that the CA has no jurisdiction over these
issues? NOT necessarily. In an appeal under RULE 43 from a quasi-judicial agency
to the CA, can you raise a PURE QUESTION OF LAW?
 When is the CA EXCLUDED from determining YES.
these issues, as enumerated in the Constitution?
Where only questions of law are raised  STATUTORY BASIS: SEC. 10, RULE 43 → ―the
(Constitution and Judiciary Act of 1948). Court of Appeals finds prima facie that the court or
 However, if the constitutionality of a law is agency concerned has committed errors of fact or
raised, the CA can also hear it on appeal law xxx.‖
and determine its constitutionality if what is  Same wording.
raised in appeal is a MIXED questions of fact  SEC. 9, first par, BP 129: ―xxx except those
and law, or a pure question of fact. falling within the appellate jurisdiction of the
 Not anymore pure. SC in accordance with the Constitution, and
 So, the CA has exclusive appellate of sub-par. 1 of the third par. And sub. Par. 4
jurisdiction, provided it is in the exercise of of the fourth par. Of Sec. 17 of the Judiciary
its original jurisdiction, where the issue At of 1948 xxx‖
raised is a question of fact, or mixed  It defines there that the RTC (CFI, then) was
questions of fact and law. in the exercise of its ORIGINAL jurisdiction.
 But if what is raised on appeal is PURE QUESTION  Therefore, go to the GENERAL RULE (SEC. 9):
OF LAW, then, go to the SC. exclusive original jurisdiction over final judgments,
decisions or awards of the RTC and quasi-judicial
NOTE: that applies only when the decision of the RTC is agencies.
in the exercise of its original jurisdiction.  That is why the only instance when there is
no appeal to the CA from the decision of the
 However, where the decision being appealed was RTC when only pure questions of law are
rendered by the RTC in the exercise of its appellate raised → when the RTC is in the exercise of
jurisdiction, can you raise pure questions of law to its ORIGINAL jurisdiction.
the CA? YES, ―the Court of Appeals finds prima
facie that the lower court has committed an error of QUESTION OF LAW:
fact or law (SEC. 6, RULE 42).‖
 However, jurisdiction must be conferred by QUESTION OF FACT QUESTION OF LAW
law, and not by the rules.
 STATUTORY BASIS: BP 129, SEC. 22 When the doubt or Exists when the doubt or
(appeal to the RTC of the decisions of the difference arises as to the difference arises as to what
MTC): the decision of the RTC in such cases TRUTH or FALSEHOOD of the law is on a certain state
shall be appealable by petition for review to of facts.
the alleged facts, or when
the CA which may give it due course only
the query necessarily
when the petition shows prima facie that the
lower court has committed an error of fact or invites calibration of the
law xxx. whole evidence considering
mainly the credibility of
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witnesses, relevance and complaint for improper venue?

specific surrounding  QUESTION OF LAW: the issue does
circumstances, their relation not involve the determination of
to one another, and to the evidence.
whole, and the probability of  Base it on the interpretation of the
158
the situation. stipulation on venue in the document.
 To interpret the provision therein on
whether it is exclusive or not, you do
QUESTION OF FACT: EXAMPLE: the LC believed the not need a trial; you just interpret the
version of the plaintiff. Defendant (losing party) may stipulation.
appeal on a question of fact.  There is no calibration of the evidence
involved.
 There can only be a question of fact when evidence
 What is the law on a certain set of
has been presented by the parties to prove the truth
or falsehood of the allegations in the pleadings. facts? → the conclusion is drawn from
 Thus, where no evidence is presented on a factual the stipulation.
issue, then necessarily, there are no facts/evidence (2) Did the trial court err in not admitting the
to calibrate. Amended Complaint?
 In other words, before a question of fact can be  QUESTION OF LAW: application or
involved as an issue in a case, evidence must have interpretation of the provision of law.
been presented by the parties for the court to  Amendment of the complaint a matter
appreciate which is true, and which is not. of right, and LC erred in denying its
 Ergo, if there is no evidence presented, there is no admission? → question of LAW.
dispute of fact.  This is regarding RULE 10 on
amendments.
SOUTHERN NEGROS DEVELOPMENT BANK V. (3) Did the trial court disregard the rule that in
COURT OF APPEALS (1994): Plaintiff here filed a case filing a motion to dismiss, petitioner was
with RTC, Br. 19 (Roxas City), which is a complaint for deemed to have admitted all the allegations
annulment and reformation of contract with damages. The in the complaint?
defendant filed a MTD on the ground that venue was  QUESTION OF LAW: the resolution
improperly laid, because of the stipulation in the document of the issue will not require the
subject of the complaint that actions arising from that examination of the probative value of
document was to be filed only in the courts of Bacolod the evidence of the parties, as in fact,
City. In resolving, the RTC granted the motion, on the none was presented.
ground of improper venue. It further ruled that plaintiff is
now estopped from questioning the validity of the contract, NOTE: The Court, in Atlas Consolidated Mining and
as that is the very basis of his complaint. The plaintiff filed Development Corporation v. Court of Appeals, 201 SCRA
an Omnibus Motion to admit Amended Complaint for 51 (1991) had occasion to pass upon the issue at hand, as
Reconsideration, attaching thereto the Amended follows:
Complaint. TC denied admission of the same. Plaintiff filed
notice of appeal. After the appellant’s brief was filed, "Under Section 5, subparagraph (2) (e), Article VII of
defendant filed a motion to dismiss appeal, on the ground the 1987 Constitution, the Supreme Court is vested
that the appeal raises pure question of law. with the power to review, revise, reverse, modify, or
affirm on appeal or certiorari as the law or the Rules
o SC: YES, the appeal to the CA was wrong. of Court may provide, final judgments and orders of
o REASON: What is raised here is a pure question of lower courts in all cases in which only an error or
law → it must be by certiorari to the SC under question on law is involved. A similar provision is
RULE 45. contained in Section 17, fourth paragraph,
o ISSUES: subparagraph (4) of the Judiciary Act of 1948, as
(1) Did the trial court err in dismissing the amended by Republic Act No. 5440. And, in such
cases where only questions of law are involved,
158
RULE ON PLEADINGS: failure to state a cause of action → no
Section 25 of the Interim Rules and Guidelines
allegation of a right, obligation or act or omission, or when he is not the implementing Batas Pambansa Blg. 129, in
real party in interest. When an MTD is filed, at that point, the court is conjunction with Section 3 of Republic Act No. 5440,
not called upon the truth or falsity of those allegations. As trial will provides that the appeal to the Supreme Court shall
come after. Then, during the Pre-Trial, stipulations of facts are made. be taken by petition for certiorari which shall be
governed by Rule 45 of the Rules of Court.
Also, when the allegations in the complaint are admitted, one can ask
for judgment on the pleadings. As in that case, the Answer does not The rule, therefore, is that direct appeals to this Court
tender an issue (as when the third mode of denial was not properly from the trial court on questions of law have to be
invoked). The effect is he is deemed to have admitted the averments of
the complaint, meaning, there was admission of facts. If there is such
through the filing of a petition for review on certiorari.
an admission, wala ng pagaawayan na facts. Judgment ka na. there is
only trial when there are facts which are under dispute.
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xxx xxx xxx COURT (1991): Onstott filed with CFI, then, a complaint
against Pacific Airways Corp. and Victorias Milling Co. for
Petitioner is correct that the proper mode of appeal from recovery of moral and exemplary damages, attorney’s
judgments of the Regional Trial Court on pure questions of fees, expenses on litigation in court, based on Arts. 19, 20,
law is a petition for review on certiorari to the Supreme and 21 of the Civil Code. As a consequence of his alleged
Court in the form and manner provided for in Rule 45 of dismissal without any valid or just cause, as the President
the Revised Rules of Court. . . . Private respondents, in and General Manager of Pacific Airways Corp. So he was
their Appellant's Brief filed with the appellate court, raised invoking a violation of human relations. The dismissal is
the following issues: (1) Did the trial court err in dismissing contained in a resolution of the Board of Pacific, that he
the complaint for improper venue?; (2) Did the trial court served the corporation for 34 years. However, no
err in not admitting the Amended Complaint?; and (3) Did allegation whatsoever in the complaint which states that
the trial court disregard the rule that in filing a motion to he was ever employed by Victorias (petitioner). As could
dismiss, petitioner was deemed to have admitted all the be gathered from the complaint, the only possible reason
allegations in the complaint? The issue of whether the trial of impleading petitioner to the action was the Victorias
court erred in holding that the venue of an action was Milling is the majority owner of Pacific Airways. Victorias
improperly laid is a question of law (See Philippine filed a MTD, contending that the court has no jurisdiction
Banking Corporation v. Hon. Tensuan, G. R. No. 104649, (this being a labor case which involves an employer-
February 28, 1994). The second issue likewise involves a employee relationship) and that there was failure to state
question of law. What is called for in the resolution of such cause of action against it (it being a mere stockholder, and
issue is the application or interpretation of a provision of Pacific Airways having a separate juridical personality
law. Anent the third issue raised in their Appellants' Brief, from Victorias or from its stockholders; there was also no
private respondents argue that "the trial court clearly showing of facts where piercing the veil can be invoked).
violated the cardinal rule on hypothetical admissions in TC dismissed the case on the ground that it has no
basing its order of dismissal on estoppel and assuming jurisdiction over the subject matter of the case, and that
that the agreement was valid and/or freely, knowingly and there was no cause of action. An MR was filed, and the
voluntarily executed by the plaintiffs-appellants" (At p. 8). other judge, denied the same, but it only stated the court
Clearly, private respondents were assailing the legal has no jurisdiction over the subject matter of the case,
conclusions made by the trial court. A resolution of the without ruling on the failure to state the cause of action
issue would not require an examination of the probative against Victorias. Onstott appealed to the CA. Victorias
value of the evidence of the parties, as in fact none were filed a motion to dismiss the appeal, on the ground that
presented. what is being raised in the appeal is a pure uestion of law.
o SC: YES, what is being raised is a pure question of

LAW.
o WON the dismissal is correct → PURE QUESTION
RAMOS, ET AL. V. PEPSI-COLA BOTTLING CO. OF OF LAW.
THE P.I. (19 SCRA 289): ". . . a question of law — which o Again, here, you hypothetically admit the averments
exists 'when the doubt or difference arises as to what the made by the petitioner, and it should be solely
law is on a certain state of facts' — 'there is a question of judged in the four corners of the complaint.
fact when the doubt or difference arises as to the truth or o SC: it is not proper for the court to receive evidence
the falsehood of alleged facts.‖ allunde for the purpose of determining whether the
complaint states a cause of action.
 You do not determine the truth or falsity of
MARCOS-ARANETA V. COURT OF APPEALS (2008):
the allegations.
Whether a determinative question is one of law or of fact
 Question of LAW: there was no evidence
depends on the nature of the dispute. A question of law
and it does not involve their calibration.
exists when the doubt or controversy concerns the correct
 REASON: there is a hypothetical admission
application of law or jurisprudence to a certain given set of
alleged on the complaint, and thus, does
facts; or when the issue does not call for an examination
NOT allege any question of fact.
of the probative value of the evidence presented, the truth
or falsehood of facts being admitted. A question of fact NOTE: The appeal interposed by Onstott stems from the
obtains when the doubt or difference arises as to the truth Order of the trial court dated 23 June 1983 dismissing the
or falsehood of facts or when the query invites the complaint "for lack of jurisdiction over the subject matter of
calibration of the whole evidence considering mainly the the action pursuant to the provisions of the Labor Code,as
credibility of the witnesses, the existence and relevancy of amended by Presidential Decree No. 1691." Whether or
specific surrounding circumstances, as well as their not such dismissal is correct is neither a question of fact
relation to each other and to the whole, and the probability nor of fact and law; it involves a pure question of law
of the situation. because what is to be resolved is whether, admitting the
facts alleged in the complaint to be true, the trial court
has jurisdiction over it in the light of the laws
VICTORIAS MILLING V. INTERMEDIATE APPELLATE governing jurisdiction. Settled is the rule that what
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determines the nature of the action and correspondingly, certiorari under Rule 45 allows only questions of law to be
the court which has jurisdiction over it, are the allegations raised (Section 2, Rule 45, Rules of Court). The proper
in the information or complaint. In cases of motions to procedure that he should have adopted was to file a
dismiss on ground of lack of jurisdiction, the petition for review with the Court of Appeals within 15 days
159
allegations in the complaint are deemed admitted. from notice of judgment pointing out errors of fact or law
The hypothetical admission of the facts alleged that will warrant a reversal or modification of the decision
renders them beyond dispute and forecloses any or judgment sought to be reviewed (See Resolution of
issue of fact for purposes of the motion. The court is Court of Appeals dated August 12, 1971, par. 22 [b] of
not called upon to rule on their probative value. However, Interim Rules of Court and Sec. 22, BP 129).
whether the conclusion drawn therefrom for purposes of
applying the law on jurisdiction is accurate or correct is a
question of law. Otherwise stated, there is a question of SESBRENO V. COURT OF APPEALS (1995): In
law in a given case when the doubt or difference arises as Bernardo v. Court of Appeals, 216 SCRA 224 (1992), this
to what the law is on a certain state of facts. Court clarified the distinction between a question of law
and a question of fact in this wise: ". . . As distinguished
Jurisdiction is conferred by law, and judicial decisions from a question of law which exists 'when the doubt or
applying or interpreting the laws or the Constitution shall difference arises as to what the law is on certain state of
form part of the legal system of the country. The Court's facts' — 'there is a question of fact when the doubt or
interpretation of a statute constitutes part of the law as of difference arises as to the truth or the falsehood of alleged
the date it was originally passed since it merely facts;' or when the 'query necessarily invites calibration of
establishes the contemporaneous legislative intent that the the whole evidence considering mainly the credibility of
interpreted law carried into effect. witnesses, existence and relevancy of specific surrounding
circumstances, their relation to each other and to the
Consequently, the first assigned error in the Brief for
whole and the probabilities of the situation.'"
Appellant — that the trial court erred in not assuming
jurisdiction over the case — is unequivocally a question of
law.
An examination of the petition filed before the Court of
Appeals disclosed that indeed no question of fact was
CAIÑA V. PEOPLE (1992): The case of Cheesman v. raised. What private respondent asserted therein was that
Intermediate Appellate Court, 193 SCRA 93, 100-101 the facts as alleged and proved by petitioner did not
[1991],distinguishes between questions of fact and constitute a criminal offense. Clearly then, the only issue
questions of law. We quote: ". . . a question of law — to be resolved by the Court of Appeals, which it did
which exists 'when the doubt or difference arises as to resolve, was whether private respondent could be held
what the law is on a certain state of facts' — 'there is a liable for estafa under the facts obtaining in the criminal
question of fact when the doubt or difference arises as to case. This certainly is a question of law that should fall
the truth or the falsehood of alleged facts,' (Ramos, et al. within the jurisdiction of this Court.
v. Pepsi-Cola Bottling Co. of the P.I., et al., 19 SCRA 289,
292, citing II Bouvier's Law Dictionary, 2784, and II Martin,
Rules of Court, 255; SEE also, Francisco, The Rules of
PROF.‘s comment: J. Quiason was correct here, but he is
Court, Annotated and Commented, 1968, ed., Vol. III, pp.
wrong in another sense. As to the issue of WON it was a
485-488) or when the 'query necessarily invites calibration
question of law, he was correct in saying that this rule is
of the whole evidence considering mainly the credibility of
applicable here.
witnesses, existence and relevancy of specific surrounding
circumstances, their relation to each other and to the
whole and the probabilities of the situation.' (See Lim
v.Calaguas, 83 Phil. 796, 799, and Mackay Radio & Tel.
Co. v. Rich, 28 SCRA 699, 705, cited in Moran, NOVEMBER 5, 2016
Comments on the Rules, 1979 ed., p. 474)
QUESTION OF LAW: as when the TC rendered judgment
Questions on whether or not there was a preponderance on the pleadings, the judgment rendered on the premise
of evidence to justify the award of damages or whether or that the Answer does not tender an issue or that
not there was a causal connection between the given set defendant has admitted the material averments of the
of facts and the damage suffered by the private complaint.
complainant or whether or not the act from which civil
liability might arise exists are questions of fact. In this  When may judgment of the pleadings be rendered?
(1) When the Answer fails to tender an issue, or
regard, the petitioner's case should not have been
(2) When the Answer otherwise admits the
elevated to this Court since a petition for review on material averments of the complaint.
 If it is being admitted, then there is NO issue of fact.
159
AFFIRMATIVE DEFENSE: that while hypothetically admitting the  That is why the court does not even conduct
material averments of the complaint constituting the cause of action, a trial anymore it renders a judgment on the
nonetheless, it would bar recovery. EXAMPLE: lack of jurisdiction. pleadings.
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 Meaning, the assumption there is that the

facts have already been admitted, so the
court will now draw a conclusion from those Appeal by certiorari. Appeal for petition for
facts. review.
 Where the facts are already UNDISPUTED
as they are either admitted or that the An appeal from ALL courts, An appeal from the RTC in
Answer does not tender an issue. whether regular or quasi- the exercise of its appellate
 WHEN ANSWER DOES NOT TENDER AN ISSUE: judicial, where you raise a jurisdiction, or from QUASI-
when the Answer is not a specific denial, but a
pure question of law (see JUDICIAL agencies.
general denial.
jurisdiction of the SC in the
 In which case, your appeal from the RTC is by 162
RULE 45, and not by RULE 41. Constitution).
The distinction between a question of fact and a

question of law becomes significant only when the  Similarly, an appeal by notice of appeal instead of
appeal is from a judgment of the RTC in the exercise by petition for review from the appellate judgment of
of its original jurisdiction. an RTC shall be dismissed.
 REASON: if the RTC renders a judgment in
 That is the only instance it becomes significant. the exercise of its appellate jurisdiction, the
 Because if the decision of the RTC is in the mode of appeal is through a PETITION FOR
exercise of its appellate jurisdiction, the mode REVIEW.
of appeal there would be a petition for review  If only by mere notice of appeal under RULE
RULE 42. 41, dali ka, and your appeal will be
 If you appeal under that mode, since that is dismissed.
decision which originated from the MTC, then the  An appeal erroneously taken to the Court of
second appeal to the CA, can you raise a pure Appeals shall not be transferred to the appropriate
question of law? YES, as per SEC. 22, BP 129. court but shall be dismissed outright.
 Where the CA May give due course to the  OLD LAW: if there is an erroneous appeal, or a
petition for review under RULE 42 if it finds MISDIRECTED APPEAL, then the appeal will be
that there is a prima facie showing that the referred to the proper court.
lower court has committed an error fact or  NOW, appeal erroneously taken shall NOT
law. be transferred.
 In that case, the appellant may raise a  This is a 180 degree change from the Old
question of fact, mixed question of fact and Rules.
law, and even purely a question of law.
 From the decision of the MTC, and go up to the If you go to the SC, nagkamali ka ng appeal mo, and you
RTC, can you raise a pure question of law? YES, should have gone to the CA (as the issue being submitted
as the RTC has jurisdiction over all cases decided is of fact), what will happen? May be referred to the Court
by the MTC, within their respective territorial of Appeals for decision or appropriate action (PAR. 2,
jurisdiction (SEC. 22, BP 129) (RULE 40). SEC. 6, RULE 56)
 Definitely, you can raise a question of fact,
and mixed question of fact or law.  That is optional to the SC → SC can dismiss the
 So it does NOT make any distinction as to same.
what kind of cases, whether those cases  It is also an erroneous appeal, so it can be
involve pure question of law or fact. dismissed.
 If we talk about appellate jurisdiction, similar to
original jurisdiction, it must be conferred by law.
SEC. 2, RULE 50 PAR. 2, SEC. 6, RULE 56
What happens when there is a wrong appeal? (SEC. 2,
RULE 50) An appeal erroneously Appeal by certiorari taken
taken to the Court of to the Supreme Court (SC)
 An appeal under RULE 41 (RTC in the exercise of Appeals (CA)
its original jurisdiction to CA → ordinary appeal),
raising ONLY questions of law shall be dismissed. Shall not be transferred to May be referred to the
 Mali ang mode of appeal kasi.
 Bawal kapag rule 41. 162
 It should have been RULE 45. Power of the SC to review, revise and reverse on appeal or
certiotrari, as the ROC may provide, in cases where:
(1) Where the constitutionality of law, statute, ordinance,

160 161 executive order is in issue;
RULE 45 RULE 42 and 43
(2) Where it involves the validity of any tax, impose or duties;
(3) Where the penalty imposed is reclusion perpetua or higher:
question of FACT (exception);
160
Decisions decided by the RTC in the exercise of its appellate (4) Where the issue involves jurisdiction of the lower court;
jurisdiction. (5) Pure questions of law (actually, Nos. 1, 2 and 4 are all questions
161
Decisions or judgments of quasi-judicial bodies to the CA. of law).
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the appropriate court but Court of Appeals for  ALL on motion before the expiration of the
shall be dismissed outright. decision or appropriate reglementary period.
action.  It cannot be extended if made after.
 So here, outright, THIRTY (30) DAYS.
 The determination of the Supreme Court on SEC. 3: DOCKET AND OTHER LAWFUL FEES; PROOF
whether or not issues of fact are involved shall be OF SERVICE OF PETITION: to the Clerk of the Supreme
final (J. Callejo). Court.
 Prof. before appealed to the SC (question of law),
but the SC, siguro tamad, pinasa sa CA, and when  Proof of service on the lower court AND adverse
it was referred there, it was dismissed as he was party shall be submitted with the petition.
only raising questions of law. But Prof.’s appeal  This is the court whose decision is being
was correct, why was he being punished? Was it appealed from.
his fault that the SC referred the case to the CA for  With PROOF OF SERVICE.
decision? But J. Callejo explained to him was that
the determination of the SC WON questions of fact SEC. 4: CONTENTS OF PETITION: Same s in RULE 42
are involved shall be final. Even though the and 43.
emphasis was on fact, J. Callejo called Prof. and
clarified it to him.  Only the NUMBER OF COPIES are different:
EIGHTEEN (18) COPIES.
Going back to:  Contents:
(1) Full name of the appealing party as the
petitioner and the adverse party as
RULE 45: APPEAL BY CERTIORARI TO THE respondent, without impleading the lower
SUPREME COURT courts or judges thereof either as petitioners
or respondents;
(2) The material dates showing when notice of
SEC. 1: FILING OF PETITION WITH THE SC: a judgment the judgment or final order or resolution
or final order or resolution of subject thereof was received, when a motion
for new trial or reconsideration, if any, was
(1) The Court of Appeals, filed and when notice of the denial thereof
(2) The Sandiganbayan, was received;
(3) Court of Tax Appeals,  To show compliance of the
(4) The Regional Trial Court or reglementary period within which to
(5) Other courts whenever authorized by law. file an appeal.
(3) Statement of the matters involved, and the
OTHER COURTS: MTC included? YES. reasons or arguments relied on for the
allowance of the petition;
 Quasi-judicial bodies? YES. (4) Clearly legible duplicate original, or a
certified true copy of the judgment or final
The petition shall raise only questions of law which must order or resolution certified by the clerk of
be distinctly set forth. court of the court a quo and the requisite
number of plain copies thereof, and such
 Therefore, if only a pure question of law is raised material portions of the record as would
from a judgment in the MTC, theoretically, you can support the petition; and
go directly to the SC via a petition for certiorari  Same as RULE 42 and 43; ikaw na
under this Rule. din gumagawa ng record on appeal.
 Formal requirements:
SEC. 2: TIME FOR FILING; EXTENSION: apply FRESH a. Either it is the original copy, or
PERIOD rule. b. Certified true copy.
(5) A sworn certification against forum shopping
 Can you ask for extension of time within which to as provided in the last paragraph of section
file Petition? YES, as it is only prohibited to do so 2, Rule 42.
under RULE 40 and 41.
 The appeal under those Rules cannot be NOTE: appeals made under RULE 42, 43 and 45, all of
extended (HABALUYAS ENTERPRSES V. them requires a Certification of Non-Forum Shopping, and
JAPZON). also for initiatory pleadings (e.g. complaint).
 But under RULE 42, 43, and 45, extensions
are ALLOWED: SEC. 5: DISMISSAL OR DENIAL OF PETITION: an
a. RULE 42 and 43: FIFTEEN (15) appeal to the SC is DISCRETIONARY on them on
DAYS, and another FIFTEEN (15) whether they will hear your appeal.
DAYS in extreme cases.
b. RULE 45: FIFTEEN (15) DAYS,  Whether your petition will be granted: given due
THIRTY (30) DAYS for justifiable course.
causes.  GROUNDS:
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(1) Failure to comply with any of the  In criminal cases, if the penalty imposed is NOT
requirements, or any of those mentioned above, the mode of appeal
(2) The appeal is without merit, or is by RULE 45.
(3) Prosecuted manifestly to delay, or  But if the penalty in criminal cases imposed by the
(4) The questions raised are too unsubstantial to lower court is ANY of those mentioned, then, RULE
require consideration. 45 is inapplicable.
 The proper mode of appeal will be SEC.
SEC. 6: REVIEW DISCRETIONARY: not a matter of right. 3(c), RULE 122 → by notice of appeal to the
COURT OF APPEALS.
 WHEN REVIEW GRANTED: Special and important  SEC. 3(e), RULE 122: except as provided in
reasons therefore. SEC. 13 of RULE 124, all other appeals to
 CONSIDERATIONS: the SUPREME CURT should be by petition
(a) When the court a quo has decided a for review on certiorari under RULE 45.
question of substance, not theretofore  But when the penalty imposed is
determined by the Supreme Court, or has reclusion perpetua, life imprisonment
decided it in a way probably not in accord or death, then, the decision of the CA
with law or with the applicable decisions of can be appealed by (SEC. 13(c) of
the Supreme Court; or RULE 124):
 There are issues of first impression a. DEATH: the court shall make a
which has never been the subject of a judgment but will refrain from
decision of the SC. making an entry of judgment,
 Especially when the judges below are and certify the case and
paid, and their decisions are thus not elevate the entire record to the
in accords with the law. SC for review.
(b) When the court a quo has so far departed  MEANING: there is
from the accepted and usual course of automatic review of the
judicial proceedings, or so far sanctioned decision, even without
such departure by a lower court, as to call for anything done by the
an exercise of the power of supervision. appellant.
 A departure from procedure.  As the Constitution
provides that when the
SEC. 7: PLEADINGS AND DOCUMENTS THAT MAY BE penalty imposed is
REQUIRED; SANCTIONS: pleadings, briefs, memoranda death penalty, that is
or documents as it may deem necessary within such automatic.
periods and under such conditions as it may consider  In which case, this is the
appropriate. only instance where the
Constitution itself states
 Only the SC can do this. the same.
 AND impose corresponding sanctions:  It is part of the
CONTEMPT. constitutional due
 Unauthorized filing: huwag kang mag-file ng kahit process →
ano. MANDATORY
 EXAMPLE: you were asked to file a APPEAL/REHEARING.
Comment, do not file a Reply if you are not b. RECLUSION PERPETUA /
required to do so. LIFE IMPRISONMENT: is the
 When you file a Reply, that is unauthorized appeal also automatic? NO. by
filing. (SEC. 13(c) of RULE 124)
 Better thing to do: also file a Motion to Admit  The judgment may be
Reply. appealed with the SC by
 In response to that, you can file a NOTICE OF APPEAL
Motion to File Rebuttal Pleading to the filed with the COURT
Reply. OF APPEALS.
 But the main pleading is already  Can you raise a
attached. question of fact upon
 Always file a motion by leave of court. appeal to the SC? YES,
as the only mode of
SEC. 8: DUE COURSE; ELEVATION OF RECORDS: appeal where you can
within FIFTEEN (15) DAYS from notice. only raise a question of
law is under RULE 45,
 Also discretionary on the part of the SC. and this is NOT that
Rule, as it is RULE 124.
SEC. 9: RULE APPLICABLE TO BOTH CIVIL AND c. IN ALL OTHER CASES:
CRIMINAL CASES: except in criminal cases where the appeal is considered merely a
penalty imposed is death, reclusion perpetua or life privilege.
imprisonment.
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REMEMBER: the effect of perfection of appeals. plaintiff, it shall issue an order of

expropriation.
MIRANDA V. COURT OF APPEALS (1976): an action for  Immediately appealable? YES, even
partition and accounting, with two issues, namely WON without awaiting for the decision of the
the parties are co-owners, and partition/accounting. court on the matter of just
compensation.
o If the first issue is decided, is that already
(2) Just compensation.
appealable? YES; do not wait for the accounting or
actual physical partition. NOTE: Now, this Court has settled the question of the
 Those two can be the subject of another finality and appealability of a decision or order decreeing
appeal. partition or recovery of property and/or accounting. In
o This is one of the instances where multiple appeals Miranda v. Court of Appeals, decided on June 18, 1986,
are allowed. the Court resolved the question affirmatively, and
expressly revoked the ruling in Zaldarriaga v. Enriquez—
NOTE: The Court's considered opinion is that imperative
that a decision or order of partition is not final because it
considerations of public policy and of sound practice in the
leaves something more to be done in the trial court for the
courts and adherence to the constitutional mandate of
complete disposition of the case, i.e, the appointment of
simplified, just, speedy and inexpensive determination of
commissioners, the proceedings for the determination by
every action call for considering such judgments for
said commissioners of just compensation, the submission
recovery of property with accounting as final judgments
of their reports, and hearing thereon, and the approval of
which are duly appealable (and would therefore become
the partition-and in Fuentebella vs. Carrascoso—that a
final and executory if not appealed within the reglementary
judgement for recovery of property with account is not
period) with the accounting as a mere incident of the
final, but merely interlocutory and hence not appealable
judgment to be rendered during the course of the appeal
until the accounting is made and passed upon. As pointed
as provided in Rule 39, section 4 or to be implemented at
out in Miranda, imperative considerations of public policy,
the execution stage upon final affirmance on appeal of the
of sound practice and adherence to the constitutional
judgment (as in Court of Industrial Relations unfair labor
mandate of simplified, just, speedy and inexpensive
practice cases ordering reinstatement of the worker with
determination of every action require that judgments for
accounting, computation and payment of his backwages
recovery (or partition) of property with accounting be
less earnings elsewhere during his layoff) and that the
considered as final judgments, duly appealable. This,
only reason given in Fuentebella for the contrary ruling,
notwithstanding that further proceedings will still have to
viz, "the general harm that would follow from throwing the
be rendered by the party required to do so, it will be
door open to multiplicity of appeals in a single case" is of
ventilated and discussed by the parties, and will eventually
lesser import and consequence.
be passed upon by the Court. It is of course entirely
Furthermore, the premise that the accounting portion of possible that the Court disposition may not sit well with
the judgment would give rise to a second appeal in the either the party in whose favor the accounting is made, or
same case is erroneous because taken as a mere incident the party rendering it. In either case, the Court's
to the judgment as provided in the cited Rule or as a adjudication on the accounting is without doubt a final one,
matter to be implemented in the execution stage, no for it would finally terminate the proceedings thereon and
appeal would lie from the lower court's action approving or leave nothing more to be done by the Court on the merits
disapproving the accounting unless there were gross of the issue. And it goes without saying that any party
error, oppression, fraud or grave abuse of discretion feeling aggrieved by that ultimate action of the Court on
amounting to lack of jurisdiction that would be correctible the accounting may seek reversal or modification thereof
on a special writ of certiorari. It must also be noted that the by the Court of Appeals or the Supreme Court.
resort to multiple appeals in a single case has been
The Miranda doctrine was reiterated in de Guzman v. C.A.
considerably lessened since the enactment on September
Valdez v. Bagaso; Lagunzad v. Gonzales; Cease v. C.A.,
9, 1968 of Republic Act 5440 which did away with the right
Macadangdang v. C.A. and Hernandez v. C.A., Gabor v.
of appeal to this Court save in the three special cases
C.A. Fabrica v. C.A .
therein provided 56 and provides only for review on
certiorari in this Court of all other final judgments and No reason presents itself for different disposition as
decrees of inferior courts at its judgment and discretion. regards cases of eminent domain. On the contrary, the
close analogy between the special actions of eminent
domain and partition already pointed out, argues for the
MUNICIPALITY OF BINAN V. GARCIA (1989): in an application of the same rule to both proceedings.
expropriation case, likewise, has two issues.
The Court therefore holds that in actions of eminent
o It is a multi-tiered proceeding: domain, as in actions for partition, since no less than two
(1) The determination whether plaintiff has the (2) appeals are allowed by law, the period for appeal from
right to expropriate: once that is determined, an order of condemnation is thirty (30) days counted from
a judgment is issued. notice of order and not the ordinary period of fifteen (15)
 If the court rules in favor of the days prescribed for actions in general, conformably with
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the provision of Section 39 of Batas Pambansa Bilang  REASON: the entire records cannot
129, in relation to paragraph 19 (b) of the Implementing be elevated, as other defendants
Rules to the effect that in "appeals in special proceedings cannot litigate their case.
in accordance with Rule 109 of the Rules of Court and  The original record has to remain with
other cases wherein multiple appeals are allowed, the the trial curt so it can proceed to hear
period of appeal shall be thirty (30) days, a record of the case for other defendants, and so
that the appellate court can now
appeal being required.
resolve the case of the first defendant
n the basis of the record on appeal.
These are instances where there can be multiple appeals.
When is there an appeal on record on appeal? (SEC. 2(a),
RULE 41)
 Multiple appeals can either be when there are
several judgments, or when there are separate
 GENERAL RULE: NO record on appeal should be
judgments.
required, because the entire records must be
 SECs. 4 and 5, RULE 36:
elevated.
 EXCEPTIONS: when record on appeal is required:
(1) In SPECIAL PROCEEDINGS: can be multi-
SEVERAL JUDGMENTS SEPARATE JUDGMENTS tiered.
In an action against When more than one claim  It can also be single-tiered as when a
several defendants, the for relief is presented in an petition of change of name is filed. Isa
court may, when proper, action, the court, at any lang iyon, wala ng susunod, pero
render judgment against stage, upon a determination special proceeding iyun.
one or more of them. of the issues material to a  Also a petition for correction of entry
particular claim and all in the civil register is a special
counterclaims arising out of proceeding.
the transaction or occurrence  Another is adoption, and once the
which is the subject matter of adoption is granted or denied, that is
appealable, even though it only has
the claim.
one proceeding.
Municipality of Binan v. Miranda v. Court of Appeals:  In all those cases, is record on appeal
163 required?
Garcia. partition, accounting.
 But for multi-tiered special
proceedings, the resolution of the very
There are many There are many issues
last issue, is that appealable by
defendants. involved, so multiple appeals
record on appeal? Or when there is
is admitted. See SEC. 5.
only one-tiered, should it also be by
record on appeal, as the law says
there are two exceptions where a
Where the case involves multiple appeals, what is the record on appeal is required.
mode of appeal? RECORD ON APPEAL, for thirty (30)
 The law did not distinguish
days.
between multi-tiered and one-
tiered proceedings.
 Does that mean that all issues are multiple as well?
 ANSWER: YES.
As in MIRANDA VS. COURT OF APPEALS, as
regarding the issue of partition (are the parties co-
(2) OTHER CASES of multiple or separate
owners and partition of the property), if the court
appeals where law n these Rules so require.
decided the first issue that they are co-owners, that
 In an action for partition where the
is already appealable by record on appeal.
first issue was resolved that there
 REASON FOR SUCH MODE: because the
exist co-ownership, the resolution on
original record has to remain with the trial
the second issue of accounting is also
court in order for the court to determine the
appealable. Should the second
other issue, which is the accounting.
stage of the accounting matter be
 If the entire records are elevated,
also by record on appeal?
wala ng magagawa.
 But with regard to BINAN V. GARCIA, there
are many defendants, and whoever wins MARINDUQUE MINING AND INDUSTRIAL CORP. VS.
between the parties, that is appealable. COURT OF APPEALS (2008): Marinduque Mining is the
 Mode of appeal is also by record on owner of a tract of lands in Lanao Del Norte. PNOC
appeal, for a period of THIRTY (30) decided to expropriate that property belonging to
DAYS. Marinduque Mining for the purpose of constructing
transmission lines. Only a portion, and not the entire area
of the property was the subject of expropriation. The court
163
Do not wait for the decision for the accounting. Upon rendering the issued the order of expropriation. There was no issue
judgment on the reconveyance issue, that is already appealable there, and it was not appealed. Then, a decision of the
(Carrascoso case).
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expropriation court fixing the just compensation of the stage is concerned with the determination by the court of
property that was expropriated, and the court fixed it at the just compensation for the property sought to be
P120/square meters. There was an attempt to appeal by expropriated. A second and separate appeal may be taken
PNOC, but later withdrew the appeal. So nothing from this order fixing the just compensation.
happened. Then, a third decision came, fixing the amount
of the consequential damages with respect to the portion In this case, since the trial court fully and finally resolved
that was not expropriated.
164
On the property not all conceivable issues in the complaint for expropriation,
expropriated, P60/square meters for consequential there was no need for NAPOCOR to file a record on
damages. PNOC now appealed. However, it merely filed a appeal. In its 5 December 2001 Decision, the trial court
notice of appeal. already determined NAPOCOR's authority to exercise the
power of eminent domain and fixed the just compensation
o In the CA, a dismissal of appeal was filed against it, for the property sought to be expropriated. NAPOCOR
on the ground that it is a multi-tiered proceedings, filed a motion for reconsideration. But after the trial court
and where the law or the rules allow multiple denied the motion, NAPOCOR did not appeal the decision
appeals, then the appeal should be by record on anymore. Then, in its 19 March 2002 Supplemental
appeal. Decision, the trial court fixed the just compensation for the
 Since it was a wrong mode of appeal, and "dangling area." NAPOCOR filed a motion for
there was failure to comply with the material reconsideration and the trial court denied the motion.
data rule, it should be dismissed. NAPOCOR then filed a notice of appeal. At this stage,
o NAPOCOR argued that the filing of a record on the trial court had no more issues to resolve and there
appeal is superfluous, as it can already be made by was no reason why the original records of the case
mere notice, as the trial court has nothing else to must remain with the trial court. Therefore, there was
resolve, the third decision finally disposed of the no need for NAPOCOR to file a record on appeal
case. because the original records could already be sent to
 Petitioners only raised this issue in their the appellate court.
Comment before the Court of Appeals.
o ISSUE: WON the appeal taken by PNOC should
have been by record on appeal. FOR CASES UNDER SPECIAL PROCEEDINGS: single-
o SC: NO, because if there is nothing more tiered proceedings.
substantial to be resolved, tapos na lahat at
pinakahuli na, then, even if it is a proceeding is REPUBLIC V. NISHINA (2010): this is a matter of
multi-tiered, the last one may be appealed by mere correction of entry in the records of the Civil Registrar
notice of appeal. (petition under Rule 108). Petitioner here is Nisaida
Sumera Nishina. Her mother was a Filipina, but her father,
NOTE: No record on appeal shall be required except in Koichi Nishina, is a Japanese. She was born in Oct. 31,
special proceedings and other cases of multiple or 1987. Her parents were married. However, her father died,
separate appeals where the law or the Rules of Court so and her mother remarried to another Japanese, Kenichi
require. The reason for multiple appeals in the same case Hakamada. Because they could not find her record of birth
is to enable the rest of the case to proceed in the event in the Malolos City registry, her mother caused the late
that a separate and distinct issue is resolved by the trial registration of her birth certificate in 1993, under the
court and held to be final. In such a case, the filing of a surname, not of the first husband, but under the surname
record on appeal becomes indispensable since only a of the second husband: HAKAMADA. Later on, her mother
particular incident of the case is brought to the appellate divorced Hakamada. After her divorce, she married for the
court for resolution with the rest of the proceedings third time (Takayuki Watanabe). The third husband
remaining within the jurisdiction of the trial court. adopted Nisaida. The decree of adoption was issued by
the Tokyo Family Court. So the adoption decree and filed
Jurisprudence recognizes the existence of multiple and recorded in the Civil Registry of Manila in 2006. Then,
appeals in a complaint for expropriation because there are in 2007, it turned out Nisaida’s birth certificate was
two stages in every action for expropriation. The first stage originally registered in Malolos Civil Registry under the
is concerned with the determination of the authority of the name ―Nisaida Sumera Nishina,‖ following the surname of
plaintiff to exercise the power of eminent domain and the the first husband they filed now a petition to have her
propriety of its exercise in the context of the facts involved second birth certificate bearing the surname HAKAMADA
in the suit. The order of expropriation may be appealed issued in 1993 be cancelled, and in the light of the decree
by any party by filing a record on appeal. The second of adoption, her surname in her original birth certificate be
changed to WATANABE. The RTC granted the petition,
164
directing the Civil Registry of Malolos to cancel the birth
Under expropriation, the court should not only determine the
certificate, and to allow the surname to be changed from
amount of just compensation, but also assess the consequential
damages or consequential benefits. This is with respect to the portion
Nishina to Watanabe in her first birth certificate. A copy
that is not the subject of expropriation. If a land was expropriated for
the building of roads, the market value of your property will increase,
as the road now is accessible, and that is beneficial to the owner. But if
you will be prejudiced, you can be given damages.
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was received by the OSG, then the OSG appealed by  That is why in SEC. 1, RULE 41, these three
165
notice of appeal. were enumerate.
 Meaning, even if the court does not fully
o When it reached the Court of Appeal, there was a disclose of the entire case, nonetheless, it is
motion to dismiss appeal on the ground that the appealable.
mode of appeal was erroneous.  Such will only result in the appeal of
 NOTE that this petition is a special particular matters, but declared by these
proceeding, and it should have been by Rules to be appealable.
record on appeal.
 NOTE also that this is a one-tiered NOTE: The above-quoted rule contemplates multiple
proceeding. appeals during the pendency of special proceedings. A
o ISSUE: Should the letter of the law be strictly record on appeal – in addition to the notice of appeal – is
followed here, the proceeding being a special one? thus required to be filed as the original records of the case
o SC: NO, the rule here is this: an appeal by record should remain with the trial court to enable the rest of the
on appeal is only required in special proceedings, if case to proceed in the event that a separate and distinct
the special proceedings is multi-tiered. issue is resolved by said court and held to be final.
 RATIO: why are doing a record an appeal?
Because the original records of the case will In the present case, the filing of a record on appeal was
remain in the TC as there will be other not necessary since no other matter remained to be heard
matters to be resolved still. and determined by the trial court after it issued the
 In other words, if it is single-tiered, why will appealed order granting respondent’s petition for
you still do a record on appeal. cancellation of birth record and change of surname in the
o Before this decision came out, Prof. was also in a civil registry.
quandary as what he will do if the special
proceeding is a single-tiered one.
o Looking at the rationale behind the requirement of BRIONES V. HENSON-CRUZ (2008): The rationale
the record on appeal → that must be clear. behind allowing more than one appeal in the same case is
o How did the Court arrive at this conclusion? to enable the rest of the case to proceed in the event that
 We are saying that there are three matters a separate and distinct issue is resolved by the court and
that are subject of an appeal: held to be final. In this multi-appeal mode, the probate
(1) A judgment; court loses jurisdiction only over the subject matter of the
(2) A final order which disposes off a appeal but retains jurisdiction over the special proceeding
cases; and from which the appeal was taken for purposes of further
(3) Such matters, although it does not remedies the parties may avail of.
finally dispose of the entire case, Where multi-appeals are allowed, we see no reason why a
however, by law or by the Rules, it is separate petition for certiorari cannot be allowed on an
considered appealable. interlocutory aspect of the case that is separate and
 Miranda v. Court of Appeals, distinct as an issue from the aspect of the case that has
Binan v. Garcia, RULE 109 been adjudged with finality by the lower court. To reiterate,
(rule on appeals in special the matter appealed matter was the special administrator's
166
proceedings) . commission, a charge that is effectively a claim against
the estate under administration, while the matter covered
by the petition for certiorari was the appointment of an
165
auditor who would pass upon the special administrator's
NOTE: if it were Prof., this can also be a petition for correction by
final account. By their respective natures, these matters
cancelling he second, and a petition for change of name from Nishina to
Watanabe (NOT correction of entry), by virtue of adoption.
can exist independently of one another and can proceed
166
Orders or judgment from which appeals may be taken: separately as envisioned by the Rules under Rule 109.
(a) Allows or disallows a will;

(b) Determines who are lawful heirs of a deceased person, of the Understand this case:
distributive share of the estate to which the person is entitled;
(c) Allows or disallows, in whole or in part, any claims against the PNB-REPUBLIC BANK V. SPS. CORDOVA (2008):
estate of a deceased person, or any claim presented on behalf DOCTRINE: what is the effect when a party perfects his
of the estate in offset to a claim against it;
appeal?
(d) Settles the account of an executor, administrator, trustee, or
guardian;
(e) Constitutes, in the proceedings relating to the settlement pf
the estate of a deceased person, or the administration of a
trustee or guardian, a final determination in the lower court of order granting or denying a motion for a new trial or
the rights of the party appealing, except that no appeal shall be reconsideration.
allowed from the appointment of a special administrator; and
(f) Is the final order or judgment rendered in the case, and affects EXAMPLE: fee of the executor or administrator → that is a final order
the substantial rights of the person appealing, unless it be an that affects the substantial rights of the parties in the case.
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o HOW AN APPEAL IS PERFECTED: (SEC. 9, loses jurisdiction over the subject matter EXCEPT
RULE 41): NOTICE OF APPEAL → as to him when (see) residual jurisdiction.
upon the filing of the notice of appeal in time.  But not the entire case because the
 RECORD ON APPEAL → as to him with perfection of an appeal, the appellant has
respect to the subject matter thereof upon already shifted his recourse to the appellate
approval of the record on appeal filed in due court, and it is that court where he may
time. secure his remedy.
o This is a case filed by the Bank for rescission of a
contract of lease. However, after hearing, the court NOTE: Petitioner’s appeal is deemed perfected "as to [it]"
rendered judgment dismissing the complaint for the when it timely filed its first notice of appeal, following
rescission of lease, and granted defendants’ Section 9, Rule 41 of the Rules of Court. Incidentally, this
counterclaim. The Bank, after receiving a copy of perfected appeal is not docketed with the CA, because the
the decision, timely filed a notice of appeal (FIRST trial court, which was still to resolve respondents’ motion
NOTICE OF APPEAL). Later on, defendants, who for reconsideration, had not yet transmitted the records of
were also not satisfied in the award granted in the the case to the appellate court. Incumbent, nonetheless,
counterclaim, filed an MR. on the part of the RTC is the elevation of the records after
 NOTE: remember the RULE → the mere fact a resolution of the merits of respondents’ motion.
that one party has perfected his appeal,
Its appeal having been perfected, petitioner did not need
does not necessarily have the effect of the
to file a second notice of appeal even if the trial court
court’s losing jurisdiction over the case, so
granted, as it did, the other party’s motion for
long as that other party files his motion for
reconsideration and modified the decision to increase the
reconsideration within the reglementary
monetary award. This is in accordance with our ruling in
period allowed for him (the counting of the
Pacific Life Assurance Corporation v. Sison, thus:
days starts from the time of receipt of notice
of judgment). We hold that petitioner did not have to file
o Here, the defendants, not satisfied with the another notice of appeal, having given notice of
damages awarded, notwithstanding the perfection its intention to appeal the original decision.
of appeal of the Bank, he filed an MR. The court
now, resolving the MR, GRANTED defendants’ x x x Since the decision, as modified by the order
motion, and rendered an amended decision of March 11, 1993, more than doubled
increasing the damages. The Bank filed an MR to petitioner’s liability, there is no reason to believe
that decision, and the lower court denied the same. that petitioner’s failure to appeal therefrom in any
Upon denial of its MR, it filed a SECOND NOTICE way indicated its acceptance thereof.
OF APPEAL to the amended decision increasing
xxxx
the amount of damages.
 NOTE again that during that time, wala pang x x x [S]ince the decision as modified
NEYPES ruling. substantially increased petitioner’s liability, the
o The theory here is when it filed a second notice of logical inference is that petitioner would all the
appeal, it was late for ONE DAY, because at the more want to appeal from the decision as
time it filed its MR against the amended decision modified. To deny petitioner’s appeal on the sole
increasing the amount of damages, it made it on ground that it failed to file another notice of
the last day. appeal in order to signify its objection to the
 Under the old rules, you only have the modified decision would be to put a premium on
remaining balance of the period within which technicalities at the expense of a just resolution
to perfect the appeal. of the case.
o ISSUE: It is now the theory of the Bank that the
appeal was correct, as it already filed a first notice An essential and logical implication of the said rule is that
of appeal. the filing of a second notice of appeal from the modified
o SC: The Bank is correct. decision is a superfluity, if not a useless ceremony. It,
o What is the effect of the tardiness of the second therefore, matters no longer whether that second notice is
notice of appeal? timely filed or not. Hence, in this case, petitioner’s filing of
o Respondent’s contention: that petitioner had a belated second notice of appeal does not affect or
abandoned its first appeal when it filed an MR to foreclose its already perfected appeal.
the amended decision.
 That is now questioning the increase in the Respondents want the Court to depart from the aforesaid
award of damages. rules because, in this case, petitioner, in effect,
o SC: The Court does not agree → does not amount abandoned its perfected appeal when it filed a motion for
to a waiver; no prejudice to the already perfected reconsideration of the order modifying the decision. The
appeal. Court does not agree. Petitioner’s filing of the said motion
o EFFECT OF A PERFECTED APPEAL AS FAR AS does not have the effect of a waiver of the appeal, and,
THE APPELLANT IS CONCERNED: the court like the second notice, is a pointless formality which does
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not prejudice the already perfected appeal. awards of quasi-judicial agencies must become final at
some definite time, this Court ruled that the awards of
When the appeal is perfected as to petitioner‘s filing voluntary arbitrators determine the rights of parties; hence,
of the first notice in due time, the trial court, insofar as their decisions have the same legal effect as judgments of
the petitioner is concerned, loses its jurisdiction over a court. In Oceanic Bic Division (FFW), et al. v. Romero, et
the case except to issue orders for the protection and al., this Court ruled that "a voluntary arbitrator by the
preservation of the rights of the parties which do not nature of her functions acts in a quasi-judicial capacity."
involve any matter litigated by the appeal. Obviously, Under these rulings, it follows that the voluntary
the issue of the correctness of the decision is the subject arbitrator, whether acting solely or in a panel, enjoys
of the perfected appeal. The trial court no longer had in law the status of a quasi-judicial agency but
jurisdiction to reverse the February 18, 2002 Decision, as independent of, and apart from, the NLRC since his
modified by the July 2, 2002 Order, which would have decisions are not appealable to the latter.
meant petitioner’s abandonment of its appeal. In fact, to
paraphrase the words of remedial law expert Justice Assuming arguendo that the voluntary arbitrator or the
Florenz D. Regalado, petitioner, with its appeal already panel of voluntary arbitrators may not strictly be
perfected, cannot withdraw the same for the purpose of considered as a quasi-judicial agency, board or
reviving the jurisdiction of the trial court and enabling it to commission, still both he and the panel are
take another course of action calling for the exercise of comprehended within the concept of a "quasi-judicial
that jurisdiction. This is because by filing the notice of instrumentality." It may even be stated that it was to
appeal, petitioner insofar as it is concerned has perfected meet the very situation presented by the quasi-judicial
its appeal to the CA, and it should be in that court where functions of the voluntary arbitrators here, as well as the
he may pursue any further remedy. subsequent arbitrator/arbitral tribunal operating under the
Construction Industry Arbitration Commission, that the
broader term "instrumentalities" was purposely included in
the above-quoted provision.
LUZON DEVELOPMENT BANK V. ASSOCIATION OF An "instrumentality" is anything used as a means or

LUZON DEVELOPMENT BANK EMPLOYEES (1995): a agency. Thus, the terms governmental "agency" or
decision of voluntary arbitrators in labor cases is "instrumentality" are synonymous in the sense that either
appealable via petition for review under Rule 43. of them is a means by which a government acts, or by
which a certain government act or function is performed.
o In this case, the Supreme Court ruled that a The word "instrumentality," with respect to a state,
decision of a labor arbiter is not appealable to the contemplates an authority to which the state delegates
NLRC, but appealable under RULE 43 as if it is a governmental power for the performance of a state
decision of a quasi-judicial body. function. An individual person, like an administrator or
o If you go back to SEC. 9, BP 129, on the appellate executor, is a judicial instrumentality in the settling of an
jurisdiction of the CA: ―(3) exclusive appellate estate, in the same manner that a sub-agent appointed by
jurisdiction over final judgments, decision, a bankruptcy court is an instrumentality of the court, and a
resolution, or awards of Regional Trial Courts, trustee in bankruptcy of a defunct corporation is an
quasi-judicial agencies, instrumentalities, boards instrumentality of the state.
and commissions.‖
o In this case: ―INSTRUMENTALITIES‖ The voluntary arbitrator no less performs a state function
o There are two kinds of arbitration in labor cases: pursuant to a governmental power delegated to him under
a. VOLUNTARY ARBITRATION: if the parties the provisions therefor in the Labor Code and he falls,
agree, or if it is a stipulation in the CBA. therefore, within the contemplation of the term
 A decision of a voluntary arbitrator in "instrumentality" in the aforequoted Sec. 9 of B.P. 129.
a labor case is NOT appealable to the The fact that his functions and powers are provided for in
NLRC, even if it purely involves labor the Labor Code does not place him within the exceptions
relations. to said Sec. 9 since he is a quasi-judicial instrumentality
 Rather, it is a decision of a QUASI- as contemplated therein. It will be noted that, although the
JUDICIAL BODY. Employees Compensation Commission is also provided
b. COMPULSORY ARBITRATION: go to the for in the Labor Code, Circular No. 1-91, which is the
NLRC after LA’s decision. forerunner of the present Revised Administrative Circular
o Since voluntary arbitration is quasi-judicial, then it is No. 1-95, laid down the procedure for the appealability of
appealable to the CA under RULE 43. its decisions to the Court of Appeals under the foregoing
o REMEMBER: EFFECT OF APPEAL IN THIS CASE rationalization, and this was later adopted by Republic Act
→ does NOT stay the execution of the final order, No. 7902 in amending Sec. 9 of B.P. 129.
unless the CA rules otherwise or issues an
injunction.
In an expropriation case, there are two issues.
NOTE: In Volkschel Labor Union, et al. v. NLRC, et al., on
the settled premise that the judgments of courts and
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 But there are instances where the right of the agrarian court, is NOT appealable via RULE 41 under
plaintiff to expropriate is not anymore necessary. ordinary appeal, but rather under RULE 42, as a petition
 As when Congress itself enacts a law for review.
expropriating a property, in which case, the
issue as to whether the plaintiff has the right NOTE: Indeed, following Land Bank of the Philippines v.
to expropriate cannot anymore be the De Leon, the proper mode of appeal from decisions of
subject of a judicial determination. Regional Trial Courts sitting as SACs is by petition for
 As it is Congress itself who review under Rule 42 of the Rules of Court and not
expropriates by law. through an ordinary appeal under Rule 41. The Court, in
 An expropriation can only be properly done when
the immediately cited case of Land Bank, observing that
Congress passes a law authorizing a particular
agency or a corporation the authority or right to before the instant case reached us, Land Bank of the
expropriate. Philippines had no authoritative guideline on how to
 May Congress pass a law authorizing a private appeal decisions of SACs considering the seemingly
corporation to expropriate? YES. conflicting provisions of Sections 60 and 61 of RA 6657,
 EXAMPLE: PLDT → pag-grant ng franchise, held that Sec. 60 of RA 6657 clearly and categorically
it is there in the law that it can expropriate for states that the said mode of appeal (petition for review)
the purpose of putting up the telephone should be adopted.
posts.
 You can also say just like MERALCO, a First, there is no conflict between Section[s] 60
provider / distributor of electricity, for its and 61 of RA 6657 inasmuch as the Rules of
posts. Court do not at all prescribe the procedure for
 Or for instance, Manila Rail Road Co. (even ordinary appeals as the proper mode of appeal
though this is created by law and is a for decisions of Special Agrarian Courts. Section
GOCC) → assuming it was sold to a private 61 in fact makes no more than a general
individual, can it still expropriate? YES, kasi reference to the Rules of Court and does not
paano niya padaanin yung tren kung walang
even mention the procedure for ordinary appeals
daanan?
in Section 2, Rule 41 of the 1997 Revised Rules
 And when the power of expropriation is granted to
government agencies, like NHA, NIA, NEA, PNPC. of Civil Procedure as the appropriate method of
 Although they are corporations granted by elevating to the Court of Appeals decisions of
law, nonetheless, in their charter, they are Special method of elevating to the Court of
granted the power to expropriate. Appeals decisions of Special Agrarian Courts in
 So if it is the Congress itself who passed a law eminent domain cases.
expropriating a certain property, is there a need to
go to court to determine that right? NO. Second, the failure to mention Special Agrarian
 EXAMPLE: the Comprehensive Agrarian Courts in Section 1 of Rule 43 of the Revised
Reform Law → all agricultural land is not Rules of Civil Procedure cannot be construed to
exproriable. mean that a petition for review is not permissible
 It will start in the DARAB. for decisions of the said special courts. In fact,
 Who pays for the just compensation? the said Rule is not relevant to determine
Landbank. whether a petition for review is the proper mode
 When there is a controversy as to the of appeal from decisions of Regional Trial Courts
amount of the just compensation, then in agrarian cases, that is, why they act as Special
go to court, in which case the RTC Agrarian Courts. Section 1 of Rule 43 of the 1997
acts as a special agrarian court. Revised Rules of Civil Procedure merely
 The RTC sits as a special mentions the Court of Tax Appeals and the other
agrarian court under the CAR
different quasi-judicial agencies without
Law.
exclusivity in its phraseology. Such omission
 Any appeal from the RTC sitting as a
special agrarian court is NOT through cannot be construed to justify the contention that
RULE 41. a petition for review is prohibited for decisions on
 The SC said it is a petition for review special agrarian cases inasmuch as the category
under RULE 42. is for quasi-judicial agencies and tax courts to
 Why is it not RULE 43? which the Regional Trial Courts do not properly
 Why is it a petition for review? As belong. Although Supreme Court of Circular No.
under the Law, it states there that it is 1-91 (precursor to Rule 43 of the Revised Rules
for a petition for review. of Civil Procedure) included the decisions of
 But, Special Agrarian Courts in the enumeration
requiring petition for review, its non-inclusion later
SPS. GOCOTANO V. GOCOTANO (2005), LANDBANK on in Rule 43 merely signifies that it was
V. DE LEON (2003), LANDBANK V. RODRIGUEZ inappropriately classified as a quasi-judicial
(2010), LANDBANK V. CA (2011): appeals from agencies.
judgments fixing just compensation, acting as a special
What is indisputable is that Section 60
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expressly regards a petition for review as the  However, on the SECOND ISSUE of just
proper way of appealing decisions of agrarian compensation, courts CAN still intervene.
courts. So far, there is no rule prescribed by
this Court expressly disallowing the said BANAGA V. MAJADUCON (2006): Under par. 1, Sec. 1
procedure. of Rule 41, instances where no appeal may be taken are
enumerated. One of those in the enumeration is (e) an
167
Third, far from being in conflict, Section 61 of RA ORDER OF EXECUTION. That is not appealable.
6657 can easily be harmonized with Section 60.
The reference to the Rules of Court means that o This case enumerates to us the exceptions, but if
the specific rules for petitions for review in the you read it, the general rule is that it is appealable.
Rules of Court and other relevant procedures in  All conceivable questions on the issuance of
appeals filed before the Court of Appeals shall be the writ of execution appears now that the
followed in appealed decisions of Special exceptions are more comprehensive than
Agrarian Courts. Considering that RA 6657 the general rule.
cannot and does not provide the details on how o EXCEPTIONS (WHEN THE WRIT OF
the petition for review shall be conducted, a EXECUTION MAY BE APPEALED):
suppletory application of the pertinent provisions (1) The writ of execution varies the judgment;
of the Rules of Court is necessary. In fact, (2) There has been a change in the situation of
Section 61 uses the word review to designate the the parties, making execution inequitable or
mode by which the appeal is to be effected. The unjust;
reference therefore by Section 61 to the Rules (3) Execution sought to be enforced against
of Court only means that the procedure under property exempt from execution;
Rule 42 for petitions for review is to be (4) It appears that the controversy has never
followed for appeals in agrarian cases. (italics been the subject of the judgment of the
in the original; emphasis and underscoring court;
supplied) (5) The terms of the judgment are not clear
enough and there remains room for
The adoption of a petition for review as the mode of interpretation;
appeal is justified in order to hasten the resolution of (6) It appears that the writ has been
cases involving issues on just compensation of improvidently issued, and that it is defective
expropriated lands under RA 6657. Thus the Court, still in in substance or issued against the wrong
the immediately cited Land Bank case, pronounced: party, or that the judgment debt has been
paid or otherwise satisfied, or
The reason why it is permissible to adopt a (7) The writ was issued without authority.
petition for review when appealing cases
decided by the Special Agrarian Courts in NOTE: There may, to be sure, be instances when an error
eminent domain case is the need for absolute may be committed in the course of execution proceedings
dispatch in the determination of just prejudicial to the rights of a party. These instances, rare
compensation. Just compensation means not though they may be, do call for correction by a superior
only paying the correct amount but also paying court, as where –
for the land within a reasonable time from its
acquisition. Without prompt payment, 1) the writ of execution varies the judgment;
compensation cannot be considered just for the 2) there has been a change in the situation of the
property owner is made to suffer the parties making execution inequitable or unjust;
consequences of being immediately deprived of 3) execution is sought to be enforced against property
his land while being made to wait for a decade or exempt from execution;
more before actually receiving the amount 4) it appears that the controversy has never been
necessary to cope with his loss. Such objective subject to the judgment of the court;
is more in keeping with the nature of a 5) the terms of the judgment are not clear enough and
petition for review. there remains room for interpretation thereof; or
6) it appears that the writ of execution has
Unlike an ordinary appeal, a petition for review been improvidently issued, or that it is
dispenses with the filing of a notice of appeal or defective in substance, or is issued
completion of records as requisites before any against the wrong party, or that the
pleading is submitted. A petition for review judgment debt has been paid or
hastens the award of fair recompense to otherwise satisfied, or the writ was
deprived landowners for the government- issued without authority;
acquired property, an end not foreseeable in
an ordinary appeal. . . . (Italics in the original;
emphasis and underscoring supplied)
167
So after the judgment has become final and executory, then, you file
a motion for execution of judgment.
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taken for purposes of further remedies the parties may

avail of.
KESWANI V. REPUBLIC (2007): what is the mode of
appeal in NATURALIZATION cases? Under CA No. 473, Where multi-appeals are allowed, we see no reason why a
appeals in naturalization cases is to the SUPREME separate petition for certiorari cannot be allowed on an
COURT. However, because of the rules now in this case, interlocutory aspect of the case that is separate and
appeals from judgments of the RTC in naturalization cases distinct as an issue from the aspect of the case that has
is appealable by ORDINARY APPEAL to the Court of been adjudged with finality by the lower court. To reiterate,
Appeals under RULE 41. the matter appealed matter was the special administrator's
commission, a charge that is effectively a claim against
o Is that a special proceeding? YES, because the the estate under administration, while the matter covered
purpose of which is to establish STATUS as a by the petition for certiorari was the appointment of an
Filipino. auditor who would pass upon the special administrator's
o APPEAL: by record on appeal or mere notice? final account. By their respective natures, these matters
MERE NOTICE OF APPEAL. can exist independently of one another and can proceed
separately as envisioned by the Rules under Rule 109.
NOTE: Indeed, Section 11 of C.A. No. 473 provides that
"[T]he final sentence may, at the instance of either of the
parties, be appealed to the Supreme Court." Note,
REPUBLIC V. BERMUDEZ-LORINO (2005): There are
however, that said law is of 1939 vintage. As correctly
summary special proceedings under the Family Code,
reasoned out by the OSG, this provision of law has
which include declaration of absence of a spouse for the
already been superseded by subsequent procedural laws,
purpose of remarrying, a petition to grant approval to
particularly Batas Pambansa Blg. (B.P. Blg.)129 or the
mortgage or sell community property when the other
Judiciary Reorganization Act of 1980, which vests in the
spouse refuses to give consent, and to discipline children.
Court of Appeals the appellate jurisdiction over all final
judgments, decisions, resolutions, orders or awards of o In this case, the present spouse filed a petition to
Regional Trial Courts and quasi-judicial agencies, declare the husband as an absentee, as the
instrumentalities, boards or commissions, among others. present spouse wanted to remarry. The TC granted
This provision of B.P. Blg. 129, of course, has been further her petition on August 28, 2000. The Solicitor
supplemented by the 1997 Rules of Civil Procedure, as General appealed by mere notice of appeal. The
amended, which provides for the remedy of an ordinary CA dismissed the appeal on the theory that the
appeal to the Court of Appeals in cases decided by the appeal is not by record on appeal (This is before
Regional Trial Court in the exercise of its original the Nishina case, 2010).
jurisdiction.10 The CA’s power to review the assailed RTC o ISSUE: WON the appeal should be by record on
Decision finds further reason as it involves factual findings, appeal.
and it is beyond dispute that the CA is equipped to resolve o SC: has become MOOT as appeals or decision of
factual issues because, unlike this Court, it is mandated to the RTC in summary proceedings under the Family
rule on questions of fact. The appeal filed by the OSG with Code are final and executory.
the CA was therefore proper.  MEANING: no appeal should be allowed.
 The right to appeal has been withdrawn.
o So NO APPEAL.
NOTE: In Summary Judicial Proceedings under the Family

Code, there is no reglementary period within which to
perfect an appeal, precisely because judgments rendered
SESBRENO V. COURT OF APPEALS: on the matter of
thereunder, by express provision of Section 247, Family
QUESTION OF LAW.
Code, supra, are "immediately final and executory". It was
erroneous, therefore, on the part of the RTC to give due
course to the Republic’s appeal and order the transmittal
o See Page 61. of the entire records of the case to the Court of Appeals.
An appellate court acquires no jurisdiction to review a

BRIONES V. HENSON-CRUZ (2008): on MULTIPLE judgment which, by express provision of law, is
APPEALS. immediately final and executory. As we have said in
Veloria vs. Comelec, "the right to appeal is not a natural
NOTE: The rationale behind allowing more than one right nor is it a part of due process, for it is merely a
appeal in the same case is to enable the rest of the case statutory privilege." Since, by express mandate of Article
to proceed in the event that a separate and distinct issue 247 of the Family Code, all judgments rendered in
is resolved by the court and held to be final. In this multi- summary judicial proceedings in Family Law are
appeal mode, the probate court loses jurisdiction only over "immediately final and executory", the right to appeal was
the subject matter of the appeal but retains jurisdiction not granted to any of the parties therein. The Republic of
over the special proceeding from which the appeal was the Philippines, as oppositor in the petition for declaration
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of presumptive death, should not be treated differently. It  Remember SEC. 1, RULE 9, ―except
had no right to appeal the RTC decision of November 7, when it appears on record or appeals
2001. on the pleadings that the court has no
jurisdiction,‖ among others.
It was fortunate, though, that the Court of Appeals, acting  REASON: jurisdiction may be raised
through its Special Fourth Division, with Justice Elvi John at any stage of the proceedings, even
S. Asuncion as Acting Chairman and ponente, denied the for the first time on appeal.
Republic’s appeal and affirmed without modification the  This is because it goes to the very
authority of the court.
final and executory judgment of the lower court. For, as we
(2) When there is a plain error;
have held in Nacuray vs. NLRC :
(3) When there are jurisprudential developments
Nothing is more settled in law than that when a affecting the issues; or
(4) When the issues raised present matters of
judgment becomes final and executory it
public policy.
becomes immutable and unalterable. The same
may no longer be modified in any respect, even if
DEL ROSARIO V. BONGA (2001): Indeed, there are
the modification is meant to correct what is
exceptions to the aforecited rule that no question may be
perceived to be an erroneous conclusion of fact
raised for the first time on appeal. Though not raised
or law, and whether made by the highest court of
below, the issue of lack of jurisdiction over the subject
the land (citing Nunal v. Court of Appeals, G.R.
matter may be considered by the reviewing court, as it
No. 94005, 6 April 1993, 221 SCRA 26).
may be raised at any stage. The said court may also
consider an issue not properly raised during trial when
What may be resolved in an appeal? there is plain error. Likewise, it may entertain such
arguments when there are jurisprudential developments
CIVIL CASES CRIMINAL CASES affecting the issues, or when the issues raised present a
matter of public policy.
Strictly, it is an appeal by
Petitioner insists that the present case is an exception
writ of error.
because it involves a matter of public policy – socialized
housing. The NHA had allegedly awarded the subject
 Meaning of ―BY WRIT OF ERROR‖ → you appeal property to Rogelio Morales, who in turn conveyed the
by assigning an error on the decision of the trial same to respondent's husband. Petitioner points out,
court. however, that the Deed of Sale with Mortgage between
 Issues not raised by writ of error CANNOT, Morales and the NHA expressly prohibited the alienation,
GENERALLY, be considered by the transfer or encumbrance of said lot, within five years from
appellate court. the grant without the prior written consent and authority of
 Issues not presented in the trial court cannot the NHA. She contends that such prohibition is akin to the
be raised for the first time on appeal, as provisions in the Public Land Act nullifying certain
defenses and objections not raised either in conveyances within five years from the grant. Invoking
a MTD or your Answer is deemed waived.
public policy, she concludes that the violation of the
 Likewise, that rule applies also to the
aforecited provision in the award made by the NHA should
plaintiff, that if he is not raising an issue in a
particular case in the trial court, he cannot also nullify the subsequent conveyance to respondent's
raise that new issue on appeal. husband. Because the claim of respondent was rooted on
 REASON: he deprived the other party a void transaction – the sale of the subject property by
to meet that issue in the trial court. Morales to Bonga within the prohibited. Period – petitioner
 That is DUE PROCESS. posits that the former did not have title to the subject
 RULE: No questions will be entertained on appeal, property at the time of their transaction.
unless it has been raised in the court below.
 Points of law, theories, arguments, not This argument does not persuade. There is a substantial
brought to the attention of the lower court difference between the terms of the Public Land Act and
need not be and ordinarily will not be the aforementioned Deed. The former expressly provides
considered by a reviewing court, as they that the prohibited transaction was void and thus had the
cannot be raised for the first time at that late effect of nullifying the grant or award. The latter, on the
stage on appeal. other hand, provided merely for the rescission of the Deed
 Basic considerations of due process impel of Sale with Mortgage at the option of the NHA in case of
this rule. an unauthorized alienation, transfer or encumbrance.
 EXCEPTIONS: indeed there are exceptions to the There is no showing that the NHA had exercised this
aforesaid rule that no question may be raised for
option.
the first time on appeal, though not raised below:
(1) Issue of lack of jurisdiction over the subject
matter may be considered by the reviewing
Going back to SEC. 15, RULE 44: ―that has been raised in
court.
the court below.‖
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 If it is not raised, wala.  Example: in a preliminary injunction,

 For instance, there was failure to comply with the and there are 7-7 votes with 1 who
requirement of Katarungang Pambarangay, and abstained, then it shall be denied.
you did not object on it, that is WAIVED.  When it comes to the CONSTITUTIONALITY OF A
 Can you raise that for the first time on LAW: MAJORITY votes are required.
appeal? NO MORE.  Under the old Constitutions, there must be
 As it is not among the exceptions 2/3 votes, then 10 votes (qualified majority),
enumerated in SEC. 1 of RULE 9. to declare a law unconstitutional.
 Also, in one case, when we were discussing filing  For DEATH PENALTY, under the old law, it needs
fees → filling fee is, to a certain extent, where it is at least ten votes to be affirmed.
not properly paid, the court does not have  Is there a rule of qualified majority now?
jurisdiction over the subject matter, but not
jurisdiction in the real sense (MANCHESTER SUMMARY PROCEDURES OF 1991:
DEVELOPMENT V. COURT OF APPEALS).
 Kung hindi nabayaran ng filing fee, it is SEC. 1: in the MTC, in the following cases falling in their
merely that the court cannot exercise that jurisdiction:
jurisdiction, NOT that it has no jurisdiction.
 Meaning, the aspect of filing fee, for the  Rules on summary procedure are applicable only in
Prof., does not go into the very jurisdiction of cases cognizable by the MTC, even though NOT in
the court to hear the case. all cases.
 Rather, it is just a condition for the
exercise of that jurisdiction. A. CIVIL CASES:
 HOWEVER, if the lack of filing fee is not (1) All cases of forcible entry and unlawful
objected to, may the other party raise lack of detainer, irrespective of the amount of
jurisdiction for the first time on appeal? damages or unpaid rentals sought to be
 That is why Prof. is making a distinction recovered;
there as to lack of jurisdiction itself over the  Basta ejectment.
subject matter.  Where attorney’s fees are awarded, the
 So if you don’t raise lack of proper payment of filing same shall not exceed P20,000.00.
fees, the SC held that you cannot anymore attack (2) In all other civil cases EXCEPT probate
the jurisdiction of the trial court because you never proceedings, where the total amount of
raised it in the court below. plaintiff’s claim does NOT exceed ONE
 What would now be the procedure there? HUNDRED THOUSAND (P100,000.00) or
The procedure would now be that the filing TWO HUNDRED THOUSAND (P200,000.00)
fee would be a lien on the judgment. in Metro Manila, exclusive of interest and
costs.
SEC. 8, RULE 58: no error which does not affect the  As long as it is probate, it cannot be
jurisdiction of the court over the subject matter (may subject of summary rules.
jurisdiction pa din yan), or the validity of the judgment  EXCLUSIVE only of interest and costs
appealed from, or the proceedings therein will be → do NOT include damages, as
considered UNLESS stated in the assignment of errors damages are included.
OR closely related to or dependent on the assigned errors,  Before, this is just P10,000.00 and by an
and properly argued in the brief. Administrative Circular, it was
increased.
 It is an appeal by writ of error. B. CRIMINAL CASES:
 ―Dependent on‖ → kamaganak. (1) Violation of traffic rules and regulations;
(2) Violation of rental law: this is already de-
VOTING REQUIREMENTS: criminalized.
(3) Violation of municipal and city ordinances:
A. Court of Appeals: criminal case;
 Must be THREE (3): unanimous. (4) B.P. Blg. 22 cases (Bouncing Check Law); and
 If there is a dissent, then, majority wins. (5) All criminal cases where the penalty prescribed
B. SUPREME COURT: SEC. 7, RULE 56. by law for the offense charged is in
 En banc is equally divided in opinion, or the imprisonment NOT exceeding SIX (6)
necessary majority cannot be had, the case MONTHS, or a fine NOT exceeding ONE
shall again be deliberated on. THOUSAND PESOS (P1,000.00), or both,
 After such re-deliberation, then the original irrespective of the imposable penalties,
action commenced in the court shall be accessory or otherwise, or of civil liabilities
DISMISSED. arising therefrom.
 It is NOT an appeal but an original  TEST: penalty → consider BOTH of
action. them.
 In appealed cases, kapag tabla after re-  CUT-OFF:
deliberation, the judgment or order appealed a. IMPRISONMENT: not exceeding
from shall STAND AFFIRMED. SIX (6) MONTHS;
 Incidental matters: all petitions or motions b. FINE: does not exceed ONE
shall be DENIED. THOUSAND (P1,000.00).
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 Provided, that offenses PERMISSIVE], CROSS-CLAIM, THIRD PARTY

involving damage to COMPLAINT, COMPLAINT IN INTERVENTION)
property through criminal and a pleading that responds against a claim or an
negligence, this rule shall allegation (ANSWER [NEGATIVE, AFFIRMATIVE],
govern, when the REPLY).
imposable penalty does  Those ALLOWED:
not exceed TEN (10) (1) Complaints;
THOUSAND PESOS (2) Compulsory counterclaims and cross-claims
(P10,000.00). pleaded in the answer: permissive
 GENERAL RULE: if NOT reckless counterclaims NOT allowed;
imprudence resulting to damage to  When is a counterclaim
property, the cut-off is P1K for fine. COMPULSORY?
 EXCEPTION: when reckless (3) Answers thereto: only one responsive
imprudence resulting to damage to pleading is allowed.
property, cut-off is P10K.  Reply is a prohibited pleading.
 DAMAGES included.  Those disallowed / PROHIBITED PLEADINGS:
 But in JURISDICTION, consider when NOT allowed.
imprisonment only: CUT-OFF → SIX (6)  VERIFICATION: a requirement for ALL pleadings.
YEARS in criminal cases.  As a rule, verifications are not required,
 But can you also consider fine? unless otherwise stated.
YES, if the only imposable penalty  This is one of the cases where ALL the
is a fine → CUT-OFF: FOUR pleadings should be verified.
THOUSAND (P4,000.00).
SEC. 4: DUTY OF COURT: may dismiss the case outright
WHEN THESE RULES ARE NOT APPLICABLE: to a civil on any grounds apparent therefrom for the dismissal of a
case where plaintiff’s cause of action is pleaded in the civil action.
same complaint with another cause of action subject to
ordinary procedure.  Here, the court INITIALLY and MOTU PROPRIO
dismiss the case if there are grounds to dismiss the
 IMPLICATION: re: Rule on Joinder → one of the case under RULE 16.
limitations on the rule of joinder of actions is that no  GENERAL RULE: Under RULE 16, a court cannot
cause of action maybe joined if it is subject to motu proprio dismiss the case, unless there is a
special rules, or if it is a special civil action. motion.
 But apparently, in this special law, it is allowed,  EXCEPTION: when the court has no jurisdiction
notwithstanding the prohibition of joinder of causes OVER THE SUBJECT MATTER.
of action under RULE 3.  So in all cases, a motion is required.
 So if a civil case (i.e. money claim for P100K), is  HOWEVER, in Summary Rules, the court shall
joined with another claim for P1M, is joinder examine the allegations of the complaint and the
allowed? YES, in which case, do not apply evidence attached thereto.
summary rules for the P100K.  Can it motu proprio dismiss the case on any
 Still apply the rule on ordinary procedure ground? YES.
because it is joined by another cause of  NO GROUND FOR DISMISSAL FOUND → issue
action governed by ordinary procedure summons.
 Suppose that the P100K and the P1M does NOT
arise from the same contract, although owing from SEC. 5: ANSWER: within TEN (10) DAYS from service of
the same party, can joinder be allowed? Pagisipan summons.
niyo yan.
 Serve a copy to the plaintiff.
SEC. 2: DETERMINATION OF APPLICABILITY: court  When NOT pleaded → WAIVED, EXCEPT lack of
shall issue an order WON this case shall be governed by jurisdiction over subject matter.
this rule.  Compulsory counterclaim or cross-claim not
asserted → barred.
 The court will first determine, and declare that the  In ordinary procedure, an Answer must be filed
case is governed by summary rules. within FIFTEEN (15) DAYS and compulsory
 Do not immediately issue summons. counterclaim and cross-claims must be filed within
 PATENTLY ERRONEOUS DETERMINATION to TEN (10) DAYS.
avoid application → ground for disciplinary action
for the JUDGE. SEC. 6: EFFECT OF FAILURE TO ANSWER the court,
motu proprio, or on motion by the plaintiff, may RENDER
CIVIL CASES: JUDGMENT.
SEC. 3: PLEADINGS ALLOWED: not all pleadings are  In ordinary procedure, the process is if the
allowed under the ROSP. defendant fails to answer within the reglementary
period provided by law, may the court immediately
 PLEADINGS → a pleading that asserts a claim declare him in default? NO, there must be a motion.
(COMPLAINT, COUNTERCLAIM [COMPULSORY,
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 The court cannot motu proprio declare a  The rules of PT in ordinary cases shall be
defendant it default. applicable to PC unless it is inconsistent with the
 But in Summary Rules, may the court motu proprio provisions of this Rule.
declare him in default? NO, as there is no more  FAILURE FOR PLAINTIFF TO APPEAR: in
procedure to declare him in default. ordinary cases, if the plaintiff does not appear, his
 What it can do is the court may motu proprio complaint will be dismissed WITH PREJUDICE
RENDER a judgment as may be warranted by the unless otherwise provided in the order.
fact → DECISION agad.  And if the defendant does not appear, can
 No more presentation of evidence here. the court declare him in default? NO, as he
 In ordinary proceedings, the court may order has an Answer. He just did not appear in the
ex-parte presentation of evidence after PT.
declaration of default.  What will only happen is that the plaintiff will
 REASON WHY JUDGMENT AGAD: the facts be allowed to present evidence ex parte →
alleged are verified already. ―AS IN default.‖
 LIMITED TO WHAT IS PRAYED FOR: what may  Parang na-default as he cannot
be awarded. anymore participate in the
 As in ordinary cases, when a party is declared in presentation of evidence.
default, the court cannot render a judgment more  He also cannot object on the
than the amount prayed for in the complaint, or presentation of evidence of the
different in nature from that prayed for. plaintiff.
 COURT’S DISCRETION: reduce the amount of  The difference between the two are
damages and attorney’s fees. remedies:
 For being excessive or otherwise a. IN DEFAULT:
unconscionable. b. AS IN DEFAULT:
 Without prejudice to applicability of SEC.  In Summary Rules, it is the same for the
168
3(c), RULE 9 (now): two or more PLAINTIFF → it will be a cause for its
defendants. dismissal.
 Can there be immediate judgment? NO, the  If the defendant appears in the
court will proceed as usual in accordance absence of the plaintiff, he shall be
with summary rules. entitled to judgment in his
 The non-answering defendant/s’ case will be counterclaim.
heard on the basis of the answer of the  All cross-claims shall be dismissed.
answering defendant/s.  If plaintiff does not appear, dismiss
 GENERAL RULE: if the defendants did not answer, ang asunto niya.
then there would be immediate judgment.  If the defendant is also not present,
 Wala ng default. his counterclaim will likewise be
 EXCEPTION: if there are two or defendants who dismissed.
are being sued under a common cause of action if
 But if plaintiff did not appear, while
some had answered.
defendant did, then the latter is
 In which case the court will proceed,
entitled to immediate judgment of his
pursuant to the summary rules, on the basis
counterclaim, on the basis of the
of the Answer of the answering defendant/s.
allegations of his counterclaim.
 It cannot render judgment immediately
 If it is the SOLE DEFENDANT fails to
against those who did not answer.
appear, the plaintiff is entitled to judgment in
 They are still in default, but the whole case is
accordance with SEC. 6.
tried and decided on the basis of the
 Immediate judgment → wala ng
Answers thus filed and on the evidence
ebidensiya or presentation of
presented.
evidence ex parte based on the facts
alleged on the complaint.
SEC. 7: PRELIMINARY CONFERENCE: in ordinary
 EXCEPTION: where one or two or more
proceedings, after the answer is filed, the next is the Pre-
defendants sued under a common cause of
Trial.
action who had pleaded a common defense
shall appear at the preliminary conference.
 It is like a Pre-Trial, but it is just called Preliminary
Conference.  So if there are many defendants, and
 Not later than THIRTY (30) DAYS after the last one or some appeared and the other
Answer is filed, a PC shall be held. did not, immediate judgment na? NO.
 Just like for those several defendants
and one or some answered.
168
Refers to a situation where there are two or more defendants and NOVEMBER 7, 2016
that they are being sued under a common cause of action.
RULES ON SUMMARY PROCEDURE:
GENERAL RULE: effect of PARTIAL DEFAULT → some or one of them did
not file an Answer, while some or one of them did, then the court shall a. CIVIL CASES:
try the case against ALL of the defendants. Those who did not answer
are still in default, but he will be tried upon the Answer filed another.
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1. Ejectment cases: forcible entry, unlawful  This is what makes it summary → no actual
detainer; presentation of witnesses in court.
2. Where the amount of the claim does not  Rather, there is just presentment of the affidavits of
exceed P100,000.00, or P200,000.00 in witnesses, if they are testimonial.
Metro Manila, exclusive of interests and  If documentary, just have it authenticated.
costs.  If object evidence, just present it.
b. CRIMINAL CASES:  At the same time, the parties already submit their
1. Violations of traffic laws, rules and respective arguments → MEMORANDUM.
regulations;
2. Rental Law: already been de-criminalized; SEC. 10: RENDITION OF JUDGMENT: within THIRTY
3. Violations of municipal or city ordinances; (30) DAYS after receipt of the last affidavit, or the
and expiration for the period of the filing.
4. Where the penalty for imprisonment does not
exceed SIX MONTHS, or a fine not  Mabilis ito.
exceeding P1,000.00, OR both.  However, during that period, the court may conduct
 When it comes to damage to property a CLARIFICATORY HEARING.
through reckless imprudence, where  It may require the parties to submit additional
the fine does not exceed P10,000.00. affidavits and other evidence on the matters
sought to be clarified by the court.
Can there be JOINDER? YES.  The parties have to comply with the order to submit
these affidavits from TEN (10) DAYS from receipt of
 There is an exception: you cannot join when one the order of the court.
cause of action is covered by special rule.  Then, FIFTEEN (15) DAYS from the receipt of the
 But here, it is there by implication: it may be last affidavits, render judgment.
joined by other causes of action subject to
ordinary procedure. CRIMINAL CASES:
Continuing from SEC. 7: HOW COMMENCED: TWO WAYS:
(1) Effect of PLAINTIFF’S failure to appear in the (a) If PI is required, where the penalty exceeds 4
preliminary conference: a cause for the dismissal of years, 2 months: by filing a complaint before the
his case. prosecutor’s office.
(2) Effect of DEFENDANT’S failure to appear in the (b) If no PI is required, by filing a complaint before the
preliminary conference: plaintiff shall be entitled to MTC.
judgment.
 EXCEPTION: when there are two or more Is direct filing required in MeTCs and MTCCs? NO, you
defendants sued under a common cause of must pass through the prosecutor’s office first.
action who pleaded a common defense, and
one or some appeared. SEC. 11: HOW COMMENCED:
 No immediate judgment can be rendered
against the non-appearing defendant/s. (1) By complaint; direct filing.
 Again, this is provided that they are sued (2) By information: dumaan sa prosecutor.
under a common cause of action and that
they have pleaded a common defense. Metropolitan Manila and chartered cities → only by
information.
SEC. 8: RECORD OF PRELIMINARY CONFERENCE:
PERIOD: FIVE (5) DAYS from termination of the  EXCEPT: when the offense cannot be prosecuted
preliminary conference. de officio (private crimes).
 But you still file with the prosecutor and the
 Like a Pre-Trial Order. court in order to comply with the law.
 CONTENTS, among others:  Seduction, abduction, acts of lasciviousness,
(a) Amicable settlement; the same may not be entertained by the
(b) Stipulations and admissions; court unless commenced by a complaint by
(c) Whether judgment may be rendered without the offended party.
need of further proceedings → judgment
shall be rendered within THIRTY (30) DAYS Shall be accompanied by the affidavits of the witnesses.
from the issuance of the order;
(d) Material facts controverted;  Copies: one per accused, and two copies for the
(e) Other matters. courts.
 If not complied with within FIVE (5) DAYS from the
SEC. 9: the PC Order is important, as it ushers this stage. date of the filing, the case may be DISMISSED.
 Whether by complaint or information, all the
 SUBMISSION OF AFFIDAVITS AND POSITION evidence must be in.
PAPERS: within TEN (10) DAYS from receipt of the
order. SEC. 12: DUTY OF THE COURT:
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(a) IF COMMENCED BY A COMPLAINT: the court  Subject to cross-examination, then re-direct,

may dismiss the case outright for being patently then re-cross examination.
without basis or merit, and order the release of the (b) If the affiant failed to testify, his affidavit shall not
accused. be considered as competent.
(b) IF COMMENCED BY INFORMATION: or not  The adverse party may utilize the same for
dismissed if direct filing → issue an ORDER any admissible purpose.
requiring the accused to submit his COUNTER-  So if the witness who executed the affidavit,
AFFIDAVIT, affidavits of his witnesses and his whether prosecution or defense, fails to
evidence, not later than TEN (10) DAYS from appear, baliwala iyan.
receipt of said order. (c) Conversely, a person who did not execute an
affidavit or counter-affidavit, CANNOT also testify,
REPLY-AFFIDAVIT: prosecution may file it within TEN except on rebuttal or sur-rebuttal.
(10) DAYS from receipt of the counter-affidavits. (d) When may additional affidavits be allowed? Must
be manifested during the PC, stating the purpose
SEC. 13: ARRAIGNMENT AND TRIAL: after submission thereof.
of the Reply-Affidavit, or upon expiration if none.  The rules allowed that during the PC, a party
may ask the court to submit additional
 Found no cause or ground to hold the accused for affidavits and counter-affidavits.
trial → order the dismissal of the case.  So it is by leave of court.
 Otherwise, the court shall set the case for  If ALLOWED by court, they must be
arraignment and trial. submitted within THREE (3) DAYS after the
 When there is basis to hold the accused for termination of the Preliminary Conference.
trial.  And if additional evidence/affidavits are
 Now, the determination of probable cause does not presented by the prosecution, the accused
end there. may file his counter-affidavits within THREE
 But once the counter-affidavits are submitted, the (3) DAYS from service.
court may still investigation if there is no basis  All of this is in observance with due process.
therefore.
 If ACCUSED IN CUSTODY: immediately arraigned. This is different from a CIVIL CASE, because in a civil
 If he pleads guilty, he shall be sentenced. case, there is no actual presentation of witnesses in open
 So if he is in custody, meaning he has court.
already been arrested without a warrant,
arraign kaagad.  The testimonial evidence presented are only
through affidavits.
SEC. 14: PRELIMINARY CONFERENCE: if there is a Pre-  There is no cross.
Trial in civil cases, there is also one in criminal cases.  In criminal cases, the cross is obligatory.
 REASON: because of the Constitution, that an
 In summary rules, it is called a PRELIMINARY accused has a constitutional to confront his
CONFERENCE. accusers.
 PURPOSES:  How do you confront them? By cross-
(a) Stipulations of facts may be entered into, examining them.
(b) Propriety of entering a plea of guilt to a  There is no similar constitutional provision
lesser offense, for civil cases.
(c) Other matters,  All that is required in a civil case is that you
(d) To ensure speedy disposition of the case. are given the opportunity to be heard.
 ADMISSION OF THE ACCUSED DURING PC:
may not be received it evidence unless reduced in SEC. 16: ARREST OF THE ACCUSED: GENERAL
writing and signed by the accused and his counsel. RULE: the court shall NOT order the arrest of the
 Failure/refusal to stipulate: not prejudicial to the accused.
accused.
 EXCEPTION: for failure to appear whenever
SEC. 15: PROCEDURE OF TRIAL: required.
 Because even in cases where no PI is required, the
(a) Affidavits of the witnesses (which must comply with court has the option also not to issue a warrant.
169
the Judicial Affidavit Rule ), shall constitute their  Instead, it will just issue summons to order
direct testimonies. them to appear.
 That is in question and answer form.  As in this case where the accused is not in
preventive custody, the court will just order for his
arraignment and trial.
169  How then will the court acquire jurisdiction over the
All civil cases are now governed by the Judicial Affidavit Rule.
person of the accused if arrest is not issued?
However, in criminal cases, only where the penalty does not exceed SIX
(6) YEARS where the JAR is followed. Where the penalty exceeds SIX (6)
Assuming that the accused is required to submit a
YEARS, it is optional with the consent of both parties. counter-affidavit. After filing his CA and the
affidavits of his witnesses, the court will now fix the
So for Summary Rules, since the penalty does not exceed SIX (6) YEARS, date for arraignment and trial. However, he failed to
the JAR applies.
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appear. How will trial continue? The court will now  It is Prof.’s opinion that the lawmakers
issue a WARRANT OF ARREST. should adjust this.
 Assuming that it is not necessary to undergo to
SEC. 17: JUDGMENT: not later than TEN (10) DAYS after conciliation because the damage is only P5,000.00,
termination of the trial. should it undergo summary procedure? YES.
 Ganyan talaga, hindi tugmatugma minsan;
COMMON PROVISIONS hindi kailangan ng conciliation pero
summary.
Applicable to both civil and criminal cases.
NOTE: this provision shall NOT apply to criminal cases
SEC. 18: REFERRAL TO LUPON: where the accused was arrested without a warrant.
 Exception to the katarungang pangbaragay law →

SEC. 408, RA 7160: Subject Matter for Amicable
no need to undergo lupon conciliation where the
Settlement Exception Thereto. – The lupon of each accused is a detention prisoner.
barangay shall have authority to bring together the parties  Kasi hahaba iya; baka mahaba pa yung conciliation
actually residing in the same city or municipality for process sa maximum penalty.
amicable settlement of all duties except:
SEC. 19: PROHIBITED PLEADINGS AND MOTIONS:
(a) Where one party is the government, or any
subdivision or instrumentality thereof; 170
(a) MOTION TO DISMISS, EXCEPT only when :
(b) Where one party is a public officer or employee, (1) Lack of jurisdiction over the subject matter;
and the dispute relates to the performance of his (2) Failure to submit the case for conciliation
official functions; before the lupon.
(c) Offenses punishable by imprisonment exceeding (b) MOTION FOR BILL OF PARTICULARS: if it is not
one (1) year or a fine exceeding Five thousand clear, then that can be included in the matters that
pesos (P5,000.00); can be discussed during the PC;
(d) Offenses where there is no private offended party; (c) MOTION FOR NEW TRIAL OR
171
RECONSIDERATION of a judgment or for the re-
(e) Where the dispute involves real properties located
opening of a trial;
in different cities or municipalities, except where 172
(d) PETITION FOR RELIEF FROM JUDGMENT ;
such barangay units adjoin each other and the (e) MOTION FOR EXTENSION OF TIME to file
parties thereto agree to submit their differences to pleadings, motions, and other papers ;
173
amicable settlement by an appropriate lupon; (f) MEMORANDA: in a CIVIL CASE, there is a position
(f) Such other cases of disputes where the President paper and that is in lieu of a Memorandum;
may determine in the interest of Justice or upon the (g) PETITIONS for CM against any interlocutory
174
recommendation of the Secretary of Justice. order issued by the court;
(h) MOTION TO DECLARE DEFENDANT IN
The court in which non-criminal cases not falling within the DEFAULT: there is no need to default as judgment
authority of the lupon under this Code are filed may, at any immediately follows;
time before trial motu proprio refer the case to the lupon (i) DILATORY MOTIONS FOR POSTPONEMENT: but
concerned for amicable settlement. can you file Motions for Postponement? YES.
 As long as it is NOT dilatory, which will result
to delay in the case.
(j) REPLY: as the pleadings allowed are only the
Criminal cases required to undergo conciliation → where
complaint, compulsory counterclaim, cross-claim,
the penalty of imprisonment does NOT exceed ONE (1)
and answers thereto;
YEAR, or a fine not exceeding FIVE THOUSAND PESOS
 Third-party complaints are also not allowed.
(P5,000.00).
 Also intervention: kasi hahaba at gugulo ang
asunto.
 Suppose it is reckless imprudence resulting to
damage to property, and the property damage does
SEC. 20: AFFIDAVITS: NATURE OF THE AFFIDAVITS:
not exceed P10,000.00?
shall state only facts of direct personal knowledge of the
 Should the procedure be summary when
affiants.
filed in courts?
 In other words, there is no need for the referral to
 NOT conclusions.
the lupon, where the damage is P10,000.00 on the
property, because the penalty for reckless
170
imprudence resulting to damage to property is a MTD on other grounds: NOT covered. BUT you can raise it as a
MERE FINE, and the maximum fine imposable is defense. If it is a civil case, raise it as an affirmative defense. If it is ia
times three (3) of the damage caused to the criminal case, raise it as a defense.
171
property. Under RULE 37.
172
 It is not necessary to undergo conciliation Under RULE 38.
173
before the lupon as a pre-condition to the After service of summons, the party only has TEN (10) DAYS within
filing of the criminal case. which to file his Answer/Counter-Affidavit and other affidavits of his
witnesses.
174
NOTE: ONLY interlocutory and not final.
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 ―Direct personal knowledge‖ → it is NOT hearsay, summons.

as when someone else told you about it.  It should be indicated therein that it is
 The knowledge is that of that some other governed by summary rules.
person. (5) After receipt of summons and copy of the
 UNLESS what you are testifying on is the
complaint, then, Answer for TEN (10) DAYS.
fact that someone else told you, and not on
 Can you ask for extension of time? NO.
the truth of what he said to you.
(6) If no Answer is filed within the period of ten (10)
SEC. 21: APPEAL: judgment or final order is appealable days, the court may motu proprio or on motion,
to the appropriate RTC. consider the case submitted for decision.
 The court can now render judgment on the
 The RTC shall decide on it in accordance with SEC. basis of the allegations of the complaint.
22 of B.P. BLG. 129.  Although the court has the power to reduce
 From the MTC to the RTC on the basis of damages.
the records or memorandums required by (7) HOWEVER, there can be NO immediate judgment
the RTC. under SEC. 6 if there are two or defendants, some
 EFFECT OF APPEAL: stays the execution of the answered while some did not.
judgment or final order.  In that case, the case shall be tried on the
 Then, from the RTC, you can appeal it further to the
basis of the answer filed by the answering
COURT OF APPEALS by way of petition for review
under RULE 42. defendant/s.
 What is the effect of an appeal under RULE 42? (8) After the answer is filed, there will be a
Stays the execution. PRELIMINARY CONFERENCE.
 HOWEVER, in summary rules, the decision of the  The court will set PC within THIRTY (30)
RTC in civil cases governed by the Rules on DAYS from the submission of the last
Summary Procedure, including forcible entry and answer.
unlawful detainer shall immediately be (9) When the parties do not appear at the PC:
EXECUTORY. (1) PLAINTIFF: and the defendant appears, the
 Without prejudice to further appeal which complaint shall be dismissed, and the
may be taken therefrom. defendant shall be entitled to judgment of his
 So decision of the MTC which is appealed to the counterclaim.
RTC, does that stay execution of the judgment or
 This is immediate judgment.
final order? YES, except in unlawful detainer or
(2) DEFENDANT: immediate judgment.
forcible entry (SEC. 10, RULE 70).
 BUT defendant may stay → marami siyang  This is the new innovation under
gagawin. these rules.
 So for SUMMARY RULES, when a judgment is  If there are again two or more
rendered by the RTC acting in its appellate defendants sued under a common
jurisdiction, that is ALREADY IMMEDIATELY action and had raised a common
EXECUTORY. defense, it will continue.
 The summary rules will govern. (10) After PC, the court within FIVE (5) DAYS from
termination will issue a PC Order stating what
SEC. 22: APPLICABILITY OF THE REGULAR RULES: occurred during the PC.
ROC applies suppletorily. (11) Then, there will be submission of evidence and
position papers within TEN (10) DAYS from receipt
 As long as it is not inconsistent.
of the PC Order.
 Affidavits of their witnesses, and position
PROCEDURE: CIVIL CASES:
papers.
(1) The complaint will be filed. (12) From submission of the last position paper/s, the
(2) Then, the court will examine it WON it is covered by court is required to render judgment THIRTY (30)
Summary Rules. DAYS therefrom.
(3) If the court finds a ground for its dismissal, it can (13) The court may however conduct a
dismiss it outright (motu proprio). CLARIFICATORY HEARING, requiring the parties
 No longer subject to the ordinary rules under to submit additional affidavits or to clarify certain
RULE 16, that no case shall be dismissed by material facts.
a court unless there is a motion.  Parties are required to comply with the said
 EXCEPT lack of jurisdiction over the subject order within TEN (10) DAYS from receipt of
matter. the order.
 Here, if the court sees that there is a ground  Then the court shall render judgment within
for a MTD, it can dismiss it outright even FIFTEEN (15) DAYS from the submission of
without a motion. the last affidavit/s, or the expiration of the
(4) If it is governed by the summary rules and there are period to file the same.
no grounds for its dismissal, the court will issue (14) Then, yun na, decision.
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answered, then the court required the filing of position

COMBATE V. SAN JOSE (1985): the accused here was papers already within ten (10) days. What was skipped?
charged of theft of one rooster worth P200. Following the The preliminary conference. Four months after the filing of
procedure laid down here in the Rules of Summary Answer, defendant filed an MTD on the ground of lack of
Procedure, the judge required the accused to file his cause of action. Plaintiff opposed on the ground that a
counter-affidavit. The accused was later arraigned, but MTD is a prohibited pleading.
without assistance of counsel. Then, thereafter, the judge
immediately issued an order submitting the case for o ISSUE: WON the rules were followed?
decision. Shortly after, a decision of conviction was o SC: NO, as the case was not set for Preliminary
promulgated, sentencing the accused of imprisonment of Conference.
six months and to pay the complainant the sum of P200 o SECOND ISSUE: Propriety of the MTD → An MTD
plus costs. is a prohibited pleading under summary procedure,
BUT it should be noted here that the motion was
o SC: decision must be set aside. filed AFTER an answer had already submitted
o REASON: The rule on summary proceedings does within the reglementary period.
not apply to this case, as the penalty of theft  In essence, this is not the pleading
charged herein is arresto mayor (two months and 1 prohibited.
day) to prision correccional minimum (two years  What is that which is prohibited? What the
and 4 months). law proscribes is a MTD which would stop
o Since the limit of summary rules is SIX (6) the running of the period to file an Answer,
MONTHS, or a fine of P1,000.00, the rules are not and thus cause undue delay.
applicable herein.  Here, the MTD was filed after an Answer has
o Secondarily, assuming that it is covered by already been submitted to the court.
summary rules, di naman niya sinunod. o RE: failure to state a cause of action as the
 Although there was an arraignment, there description of the land had been wanting →
was a violation of the rights of the accused. nevertheless, the defendants; answer left no room
 There was no counsel at the arraignment, for doubt that they are acquainted with the identity
and he was not given the opportunity to thereof.
confront or cross-examine his accusers. o But the courth ere omitted to conduct a preliminary
o So it was not just jurisdictionally defective, but it conference.
was constitutionally flawed. o Short cut na nga, shinort cut pa.
NOTE: The Rule on Summary Procedure in Special Cases Be that as it may, dismissal of the case by the MTC, as
applies only to criminal cases where the penalty affirmed by Respondent RTC, for failure to state a cause
prescribed by law for the offense charged does not exceed of action, is not in order. The description of the land in the
six (6) months imprisonment or a fine of one thousand Complaint, quoted hereunder, may, indeed, have been
pesos (P1,000.00), or both. The crime of Theft as charged wanting. Nonetheless, private respondent's Answer
herein is penalized with arresto mayor in its medium (paragraph 3, supra) left no room for doubt that the parties
period to prision correccional in its minimum period, or, were acquainted with the identity of the disputed property.
from two (2) months and one (1) day to two (2) years and It would be sheer technicality, destructive of the ends of
four (4) months. Clearly, the Rule on Summary Procedure substantial justice, were the case to be dismissed on the
is inapplicable. ground of lack of particularity of the disputed property. In
fact, if the Rule on Summary Procedure had been
But even assuming that the case falls under the coverage followed, such additional data as were needed to define
of said Rule, the same does not dispense with trial. On the the issues of the case could have been threshed out in the
contrary, it specifically provides: "Section 11. When case preliminary conference.
set for arraignment and trial. — Should the court, upon a
consideration of the complaint or information and the
affidavits submitted by both parties, find no cause or Not applicable anymore; old rules:
ground to hold the defendant for trial, it shall order the
dismissal of the case; otherwise, the court shall set the
case for arraignment and trial. "Section 14. Procedure of
Trial. — Upon a plea of not guilty being entered, the trial LESACA V. COURT OF APPEALS (1992): plaintiff here
shall immediately proceed. filed an action for ejectment to oust defendant from
commercial premises due to (1) expiration of the month to
month lease contract, (2) non-payment of rentals.
RE: HEIRS OF OLIVAS V. FLOR: wala na ito, kasi na- Defendant answered. During the PC, both parties and
amend na, so adjust it to the new rules. their lawyers appeared. However, the hearing was reset to
another day upon request of both parties to give them time
HEIRS OF OLIVAS V. FLOR (1988): heirs of Olivas filed to explore an amicable settlement and to submit a
for forcible entry. The summons stated that the rule on compromise agreement. On the date for resetting, the
summary procedure shall be applied. Defendant defendant and his counsel failed to appear, and the
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defendant was declared in default. Thereafter, the judge was merely enforcing the mandatory provisions of the
rendered a decision for the plaintiff. On appeal, the RTC Rule on Summary Procedure. The record shows that the
affirmed the judgment whereupon defendants filed a Municipal Trial Court failed to take into account the
petition to annul the judgment (but this is moot). following pertinent provisions of the Rule: Sec. 6.
Preliminary Conference. — Not later than thirty (30) days
o ISSUE: Were the Rules for Summary Procedure after the last answer is filed, the case shall be calendared
followed when the defendant and his counsel failed for a preliminary conference. Among other matters, should
to appear in the PPC and no compromise the parties fail to arrive at an amicable settlement, the
agreement was reached? court must clarify and define the issues of the case, which
o SC: NO. must be clearly and distinctly set forth in the order to be
issued immediately after such preliminary conference,
NOTE: In this case, since Ravelo did file an answer to the
together with the other matters taken up during the same.
complaint, the trial court may not declare him as in default
Sec. 7. Submission of affidavits. — Within ten (10) days
(despite his absence and that of his counsel at the pre-trial
from receipt of the order mentioned in the next preceding
conference on May 3, 1990) because a motion to declare
section, the parties shall submit the affidavits of witnesses
the defendant in default is a prohibited pleading under
and other evidences on the factual issues defined therein,
Section 15 (h) of the Rule on Summary Procedure. It is the
together with a brief statement of their positions setting
policy of the law to have every litigated case tried on the
forth the law and the facts relied upon by them. The above
merits. It is for this reason that judgments by defaults are
provisions require that immediately after the preliminary
generally looked upon with disfavor. As this Court
conference, the Municipal Trial Court should issue an
observed in the "case of Coombs vs. Santos, (24 Phil.
order clearly and distinctly setting forth the issues of the
446): a default judgment does not pretend to be based
case and the other matters taken up during the preliminary
upon the merits of the controversy. Its existence is justified
conference. The order is an important part of the summary
on the ground that it is the one final expedient to induce
procedure because it is its receipt by the parties that
the defendant to join issue upon the allegations tendered
begins the ten-day period to submit the affidavits and
by the plaintiff, and to do so without unnecessary delay. A
other evidence mentioned in Sec. 7. The minutes of the
judgment by default may amount to a positive and
Municipal Trial Court dated August 22, 1989, contained a
considerable injustice to the defendant; and the possibility
notation that the pre-trial had been "terminated" and that
of such serious consequences necessitates a careful
the parties were to submit position papers. However, there
examination of the grounds upon which the defendant
was no order to this effect nor was there an indication of
asks that it be set aside."
when the position papers were to be submitted for the
purpose of discussing the factual questions raised. As
BAYUBAY V. COURT OF APPEALS (1993): Bayubay correctly observed by the Court of Appeals — We think
sued to eject Bic Mak Burger on the ground of expiration that the failure of the MTC to give the petitioner the
of the lease contract. BMB answered that it has the option opportunity to submit its position paper and/or affidavit of
to renew the contract with the defense of estoppel. It also witnesses constituted a denial of due process. True,
put up a counterclaim for damages and reimbursement of between August 22, 1989 and December 18, 1989, when
expenses incurred in improvements it introduced. After PC the MTC rendered its decision was a period of more than
and marking of the exhibit, the judge immediately issued a three months. But under the Rule on Summary Procedure,
judgment declaring the lease contract expired. The the ten-day period for submitting affidavits and position
decision was affirmed by the RTC. The CA, however, papers did not commence to run until receipt by a party of
reversed the decision on the ground that the defendant the order of the court embodying the results of the pre-trial
was not given the chance to submit position papers and/or conference. Here, as already stated, the MTC never
affidavits. So they ordered the remand of the case and to issued such an order and so the ten day period never
order the issuance of PC order. started to run. It is not true, as the MTC said, that the only
questions raised were questions of law. The petitioner's
o SC: the provision requiring that immediately after answer contained a counterclaim for reimbursement of
the PC, the court shall issue a PC order clearly and improvements allegedly made by it on the premises, as
distinctively setting forth the issues of the case and well as claim for damages for alleged bad faith of private
other matters taken up. respondent in bringing the case — questions which
o This was NOT done here. obviously required at least the affidavits of witnesses. The
o This order is an important part of Summary Court of Appeals did not err therefore in calling for the
Procedure, because it is its receipt by the parties remand of the case to the Municipal Trial Court. While the
that begins the ten (10) day period to submit municipal judge may be commended for his zeal in
affidavits and other evidence and position papers, speeding up the resolution of the case, he nevertheless
which BM was never given the opportunity. cannot be sustained for his non-observance of the Rule on
o The CA is correct. Summary Procedure.
NOTE: We see nothing wrong with the decision of the

Court of Appeals remanding the case to the Municipal NOTE: the procedure is different for criminal cases.
Trial Court for further proceedings. The respondent court
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PROVISIONAL REMEDIES: (3) GARNISHMENT: it is the levy of the property of the

obligor against his obligor.
PROVISIONAL REMEDIES: those which party litigants  You are going against the property of a
may resort for the preservation or protection of their rights debtor of the obligor.
or interest DURING the pendency of the principal action.  Like a bank: if you are a bank depositor, that
is NOT bailment but a SIMPLE LOAN.
 There are FIVE (5) of them:  If the depositor has a judgment
(1) Preliminary attachment (RULE 57); against him, the judgment-obligee can
(2) Preliminary injunction (RULE 58); garnish the obligation of the debtor of
(3) Receivership (RULE 59); the judgment-obligor.
(4) Replevin (RULE 60); and  It is a specie of attachment or execution for
(5) Support pendente lite (RULE 61). reaching credits belonging to the judgment
obligor and owing to him from a stranger to
the litigation.
RULE 57: PRELIMINARY ATTACHMENT
 The stranger there is a debtor or
obligor of the judgment-obligor.
 Is there a distinction between PRELIMNARY
ATTACHMENT as a provisional remedy: it is that remedy ATTACHMENT from garnishment? YES.
by which the property of the adverse party is taken into the
custody of the law, either at the commencement of the PRELIMINARY
action, or at any time before entry of judgment as a GARNISHMENT ATTACHMENT
security for the satisfaction of any judgment that the
Has three (3) parties: Has only two (2) parties:
plaintiff or any proper party may recover.
(a) Creditor; (a) Creditor;
 You are already levying it even before finality of
(b) Debtor; (b) Debtor.
judgment.
(c) Garnishee (e.g. bank).
 In other words, it is EXECUTION only up to levy,
short of selling it at public auction.
There is NO ACTUAL The property attached is
 It is already actually execution, but only up to 176
levying. seizure/taking of property, ACTUALLY taken into
 The property is only taken in custodia legis. and no specific lien the possession of the
 But it is not yet sold to satisfy the judgment, acquired thereon. officer / sheriff enforcing the
as there is no judgment yet. writ, it is under his custody
 As long as the judgment becomes final. - REASON: the property and control, and a specific
 TWO WHOM AVAILABLE: not available only to the remains with the lien is acquired thereby.
175
plaintiff, but to any proper party. garnishee.
 For instance, a defendant who sets up a
counterclaim. Directed to intangible Directed to tangible
177
 Or a defendant who sets up a cross-claim. properties. properties.
KINDS OF ATTACHMENT:
NATURE OF AN ATTACHMENT PROCEEDING: it is
(1) PRELIMINARY ATTACHMENT (RULE 57): there proceeding in rem.
is yet a judgment, and it is only until levy.
 The property of the adverse party is taken  It is against a PARTICULAR property.
into the custody of the law, and creates a  The attaching creditor acquires a specific lien upon
lien as to satisfy any judgment that may be the attached property which later on ripens into a
rendered in the case later on. judgment against the res / thing when the order of
 This is DIFFERENT from discretionary sale is made.
execution of judgment pending appeal.
HOW LONG: the law does not provide the period of time
DISCRETIONARY PRELIMINARY an attachment shall continue after rendition of judgment.
EXECUTION PENDING ATTACHMENT
APPEAL  But it must only continue until the debt is paid, the
sale is had under execution issued on the
This continues until sale, Here, it is only up to levy;
until the judgment is there is no sheriff’s sale.
175
satisfied. For example, you went to the bank and garnished the obligor’s
deposits. The sheriff will not immediately get the money. The money
(2) LEVY ON EXECUTION / FINAL ATTACHMENT remains with the garnishee. All that the garnishee will do is to hold the
(SEC. 1, RULE 39): this is complete, as when it is release of the money to the extent of the judgment until it is ordered to
be released.
attached, it is by virtue of a final judgment. 176
It is the ACTUAL property which is taken, that is why it creates a lien.
 Until sale already. 177
That is why you do not create a specific lien. There is NO LIEN
 It is one to enforce judgment which has because the property attached is NOT SPECIFIC (e.g. as when money
already been final and executory. deposited → the same money with the same serial number will not be
returned).
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judgment, until the judgment is satisfied, when an (d) In an action against a party who has been guilty of
attachment is discharged, or vacated in some a fraud in contracting the debt or incurring the
manner provided by the law. obligation upon which the action is brought, or in
the performance thereof;
SEC. 1: GROUNDS FOR ATTACHMENT:  Under the old law, there is no ―or in the
performance thereof‖ → only limited to dolo
(a) In an action for the recovery of a specified amount causante.
of money or damages, other than moral and  This is fraud in contracting the
exemplary, on a cause of action arising from law, obligation.
contract, quasi-contract, delict or quasi-delict  NOW, it also includes dolo incidente
against a party who is about to depart from the because of that new phrase.
Philippines with intent to defraud his creditors;  This is fraud in the performance of the
(b) In an action for money or property embezzled or obligation.
fraudulently misapplied or converted to his own (e) In an action against a party who has removed or
use by a public officer, or an officer of a disposed of his property, or is about to do so,
corporation, or an attorney, factor, broker, agent, or with intent to defraud his creditors; or
clerk, in the course of his employment as such, or  A person has a lot of debts, and what he did
by any other person in a fiduciary capacity, or for was he disposed of his properties, para hindi
a willful violation of duty; mahabol.
 It can be a specific and actual property →  The intention is to defraud his creditors.
example: car, television.  By the time judgment is rendered, ubos na at
 Embezzle or fraudulently misapply or convert nabenta na.
to one’s own use.  The creditors can no longer find properties.
 Held by the defendant is a fiduciary capacity (f) In an action against a party who does not reside
(there is a relationship of trustor-trustee, and is not found in the Philippines, or on whom
depositor-depositary, bailor-bailee). summons may be served by publication. (1a)
 In other words, the grounds for estafa.  What are the instances where a party does
 If you are a public officer, the grounds for not reside, or is not found in the Philippines?
malversation (fiduciary). (SEC. 15, RULE 15)
 Provided that the defendant is not the owner  That is why EXTRA-TERRITORIAL
of the property. SERVICE is allowed only in actions in
 Under (a), it is just money, but here (b), rem or quasi in rem, meaning, there
MONEY OR PROPERTY. are properties in the Philippines
(c) In an action to recover the possession of property where the court can acquire
178
unjustly or fraudulently taken, detained or jurisdiction.
converted, when the property, or any part thereof,  OR whom summons may be served by
has been concealed, removed, or disposed of to publication.
prevent its being found or taken by the applicant or
an authorized person; HOW GROUNDS FOR ATTACHMENT ARE
 Here, the beholder (defendant) is NOT CONSTRUED: attachment being purely a statutory
holding the property in a fiduciary capacity. remedy, the grounds for the grant must be construed
 In other words, the defendant HAS strictly in favor of the debtor.
THE RIGHT also to the possession of
the property, HOWEVER, he has 178
Section 15. Extraterritorial service. — When the defendant does not
unjustly or fraudulently taken, reside and is not found in the Philippines, and the action affects the
detained or converted it. personal status of the plaintiff or relates to, or the subject of which is,
 For instance, when a motorcycle is bought property within the Philippines, in which the defendant has or claims a
on installment, that under a chattel lien or interest, actual or contingent, or in which the relief demanded
mortgage, where an SPA is executed, consists, wholly or in part, in excluding the defendant from any interest
authorizing the creditor, if you failed to pay, therein (e.g. as a mortgagee), or the property of the defendant has
to take the property. been attached within the Philippines, service may, by leave of court, be
 So that he can sell it in a public effected out of the Philippines by personal service as under section 6;
auction to satisfy the judgment. or by publication in a newspaper of general circulation in such places
 But of course, the mortgagor has the and for such time as the court may order, in which case a copy of the
right to possess it. summons and order of the court shall be sent by registered mail to the
last known address of the defendant, or in any other manner the court
 The mortgagor’s right to possession
may deem sufficient. Any order granting such leave shall specify a
terminates when there is a demand reasonable time, which shall not be less than sixty (60) days after
from the mortgagee to surrender the notice, within which the defendant must answer.
property for the purpose of precisely
satisfying the obligation. - The action must be in rem or quasi in rem in order for
 In this case, the defendant hid the property, extraterritorial service can be had.
or brought it somewhere other than where it - If there is no property, cannot be, because the court, for purely
was supposed to be. actions in personam, cannot acquire jurisdiction over the
 That is a criminal act. person of a non-resident not residing or found herein.
- Summons by publication (SEC. 14): See Prof.’s misgivings with
the decision of the SC in SANTOS V. PNOC.
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(1987): While as a general rule, the liability on the

 Meaning, the enumeration for the grounds of attachment bond is limited to actual damages, moral and
attachment as provided herein is EXCLUSIVE. exemplary damages may be recovered where the
 So that attachments granted which are not within attachment was alleged to be maliciously sued out and
the grounds provided here will be ILLEGAL.
established to be so. (Lazatin vs. Twano et al, L-12736,
SEC. 2: ISSUANCE AND CONTENTS OF ORDER: by the July 31, 1961). Well settled is the rule that the factual
court in which the action is pending, or by the Court of findings of the trial court are entitled to great weight and
Appeals or the Supreme Court. respect on appeal, especially when established by
unrebutted testimonial and documentary evidence, as in
 Either ex parte or upon motion with notice and this case.
hearing.
While Section 12, Rule 57 of the Rules of Court provides
SEC. 3: AFFIDAVIT AND BOND REQUIRED: WHEN may that upon the filing of a counterbond, the attachment is
the court issue an order of attachment? What are the discharged or dissolved, nowhere is it provided that the
requisites that must be complied with before a court can attachment bond is rendered void and ineffective upon the
issue a writ of PA? filing of counterbond. The liability of the attachment bond
is defined in Section 4, Rule 57 of the Rules of Court. It is
(1) AFFIDAVIT: must show that: clear from the above provision that the responsibility of the
(a) A sufficient cause of action exists, surety arises "if the court shall finally adjudge that the
(b) The case is one of those mentioned in plaintiff was not entitled thereto." In Rocco vs. Meads, 96
Section 1, Phil. Reports 884, we held that the liability attaches if the
(c) There is no other sufficient security for the
plaintiff is not entitled to the attachment because the
claim sought to be enforced by the action,
and requirements entitling him to the writ are wanting, or if the
 But in one case, suppose there is a plaintiff has no right to the attachment because the facts
security but it is not enough, pwede stated in his affidavit, or some of them, are untrue. It is,
din doon sa kulang. therefore, evident that upon the dismissal of an
(d) The amount due to the applicant or the value attachment wrongfully issued, the surety is liable for
of the property is as much as the sum for damages as a direct result of said attachment.
which the order is granted, above all legal
counterclaims.
(2) ATTACHMENT BOND: When may a writ of attachment be issued? (SEC. 1) At the
commencement of the action, OR any time before entry of
Must be duly filed with the court BEFORE the order judgment.
issues.
 A plaintiff, or any party, may have the property of
 No order shall be issued without the concurrence of the adverse party attached as a security for the
the two. judgment.
SEC. 4: CONDITION OF APPLICANT’S BOND: Is a hearing required for an attachment to issue? May an
CONDITION → that the later will pay all the costs which attachment be issued ex parte? YES.
may be adjudged to the adverse party, AND all damages
which he may sustain by reason of the attachment.  SEC. 2 states an order of attachment may be
issued ex parte, or upon motion with notice of
 REASON: if the court shall finally adjudge that the hearing.
applicant was NOT entitled thereto.  Clarified in the case of:
 How do we determine that the applicant is not
entitled thereto? If he reneges to any of his DAVAO LIGHT & POWER CO., INC. V. COURT OF
undertakings in his affidavit. APPEALS (1991): because there was a previous ruling
 See again what those stated in the affidavit. that the court cannot issue an attachment unless the court
 When may an applicant for a PA be liable to the had acquired jurisdiction over the person of the defendant,
adverse party for the costs and damages sustained NO.
by the adverse party or the party against whom the
attachment was issued? If the court shall finally o It may issue ex parte, because of the phrase ―at the
adjudge that the applicant was never entitled to it. commencement of the action.‖
 When is the applicant not entitled to it? When he
o According to the court, ―at the commencement of
has no sufficient cause of action, etc.
the action‖ indicates that it is NOT necessary for the
 Also when he lied in his affidavit.
 REASON: those four requirements in the court to have acquired jurisdiction over the person
affidavit must always concur and that is the of the defendant.
very for the issuance of the attachment, o Because in an early, the SC ruled that the critical
aside from the bond. time when the court acquires authority under the
law to act coercively against a particular defendant
CALDERON V. INTERMEDIATE APPELLATE COURT or his property, it is at the time of the vesting of
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jurisdiction in the main case. before or after service of summons on the defendant. And
o So avokd any doubt that the ruling in that old case, this indeed, has been the immemorial practice sanctioned
as the Court has already corrected itself in this by the courts: for the plaintiff or other proper party to
case. incorporate the application for attachment in the complaint
o ―At the commencement of the action‖ means or other appropriate pleading (counterclaim, cross-claim,
ANYTIME before the issuance of summons. third-party claim) and for the Trial Court to issue the writ
o SUMMARY OF RULES: ex-parte at the commencement of the action if it finds the
(1) A writ of attachment may be issued ex parte. application otherwise sufficient in form and substance.
(2) The writ of attachment may be issued by the
court even when the court has not yet In Toledo v. Burgos this Court ruled that a hearing on a
acquired jurisdiction over the person of the motion or application for preliminary attachment is not
defendant or the opposing party against generally necessary unless otherwise directed by the Trial
whom the writ is issued. Court in its discretion. And in Filinvest Credit Corporation
 REASON: according the Court: Rule v. Relova, the Court declared that "(n)othing in the Rules
57 speaks of the grant of the remedy of Court makes notice and hearing indispensable and
at the commencement of the action, mandatory requisites for the issuance of a writ of
or at any time thereafter. attachment."
 That phrase obviously refers to the
The only pre-requisite is that the Court be satisfied, upon
date of the filing of the complaint, and
consideration of "the affidavit of the applicant or of some
that is definitely the time before
other person who personally knows the facts, that a
summons are served. .
sufficient cause of action exists, that the case is one of
 This is ISSUANCE, pero iba ang
those mentioned in Section 1 . . . (Rule 57), that there is
usapan sa ENFORCEMENT of the
no other sufficient security for the claim sought to be
writ.
enforced by the action, and that the amount due to the
(3) For a valid of levy of an attachment, the
applicant, or the value of the property the possession of
court reiterated tand reaffirmed the
which he is entitled to recover, is as much as the sum for
proposition that writs of attachment may
which the order (of attachment) is granted above all legal
properly issue ex parte, provided that the
counterclaims." If the court be so satisfied, the "order of
court is satisfied that the relevant requisites
attachment shall be granted," and the writ shall issue upon
has been fulfilled by the applicant, although it
the applicant's posting of a bond executed to the adverse
may, at its discretion, require prior hearing.
party in an amount to be fixed by the judge, not exceeding
(4) BUT levy on the property pursuant to the writ
the plaintiff's claim, conditioned that the latter will pay all
thus issued may NOT be validly effected
the costs which may be adjudged to the adverse party and
unless received or contemporaneously
all damages which he may sustain by reason of the
accompanied by service on the defendant of
attachment, if the court shall finally adjudge that the
(see enumeration).
applicant was not entitled thereto."
EXCEPTIONS: when:
(1) the defendant cannot be served with summons This case was discussed just to show that this is NO
personally or through substituted service, LONGER APPLICABLE:
(2) where the defendant is temporarily out of the
Philippines but a resident of the Philippines, or RAYOS V. COURT OF APPEALS and MIRANDA (2004):
(3) when the defendant is a NR not found in the NOT anymore as under the 1997 Code of Civil Procedure,
Philippines, or the ground is NOW dolo incidente.
(4) where summons is served by publication.
o In this case, Miranda bought a parcel of land from
NOTE: Rule 57 in fact speaks of the grant of the remedy the Sps. Rayos. Mr. Rayos was a lawyer and he
"at the commencement of the action or at any time prepared the document of sale, with assumption of
thereafter." The phrase, "at the commencement of the mortgage, as may utang sa bangko. Under the
action," obviously refers to the date of the filing of the agreement, because the Rayos now assumed the
complaint — which, as above pointed out, is the date that mortgage, also assumed all payments of the
marks "the commencement of the action;" and the amortization. What he did was upon execution of
reference plainly is to a time before summons is served on the agreement, a sum of P160,000.00 was paid,
the defendant, or even before summons issues. and the first quarterly amortization, for P87,000 to
the Philippine Savings Bank. When Miranda wanted
What the rule is saying quite clearly is that after an action to pay the last payment, the bank told him, ―wag ka
is properly commenced — by the filing of the complaint ng magbayad, kasi binayad na ni Rayos,‖ and since
and the payment of all requisite docket and other fees — there was full payment, the CT was delivered to the
the plaintiff may apply for and obtain a writ of preliminary spouses. Miranda then filed a complaint against the
attachment upon fulfillment of the pertinent requisites laid Rayos, with a writ of preliminary attachment. The
down by law, and that he may do so at any time, either TC issued the writ. Defendants Rayos then sought
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the discharge thereof, claiming that there was no  After due notice and hearing, if the movant
proof of fraud in his part in contracting the files a cash deposit of a counter-bond.
obligation (dolo causante). The TC lifted the writ.  PURPOSE: It shall secure the payment of
o So the claim here of Miranda is that the transaction the judgment that the attaching party may
recover.
was fraudulent, as the Rayos did not tell him that
 This means that the cash bond or the
his assumption of mortgage would have to be
counter-bond posted the party against whom
approved by the bank, and such transaction will be was issued is to REPLACE the property
nullified by lack of approval was not proved by attached with cash or counter-bond.
evidence.  In other words, the cash or the counter-bond
 If at all, the Rayos have committed the fraud will now be used, and will eventually answer
after the conclusion of the contract, but such for any judgment against the party.
fraud is not covered by Rule 57.  But he is able to have the attachment or the
 Here, the fraud was after the contract. levy on the property lifted, to be replace by
o What is the fraud in the fulfillment of the obligation? the cash or counter-bond.
Dolo incidente 1:06:47  So there is still SECURITY → it is in lieu of.
(2) Move to quash the attachment under SEC. 13:
 Motion to Set Aside / Discharge the
 So definitely, it can be issued ex parte, and on the Attachment.
mere basis of the affidavit and its sufficiency.  GROUNDS:
 But there is nothing to prevent a judge from holding a. That the attachment was improperly
a hearing on the affidavit. issued;
b. That the attachment was irregularly
One of the requirements of the affidavit is that, under SEC. enforced;
3, there is no other sufficient security for the claim sought c. That the bond is insufficient;
to be enforced by the action. d. If the attachment is excessive,
discharge is limited to the excess:
 There is no other security. PARTIAL RELEASE.
 However, as we are saying, a writ of attachment  First three will totally release the attachment.
may still be issued although plaintiff’s claim is  IMPROPER ISSUANCE: when it did not
secured. comply with the twin requirements for the
 EXAMPLE: when plaintiff abandons his security → issuance of an attachment → affidavit/s and
as in a mortgage, then he can bring an ordinary bond.
action for the debt.  IRREGULARLY ENFORCED (SEC. 5):
 In which case, he may cause the attachment
to be levied upon the very property on which SEC. 5: MANNER OF ATTACHING PROPERTY: only so
the attachment existed. much property → if it is excessive, doon ka sa No. 4.
 If there is a previous mortgage, and it was
abandoned, then you sue.  Ask for the REDUCTION, which is in excess of the
 INDUSTRIAL FINANCE CO. V. APOSTOL: demand or of the value of the property.
when in a debt secured by a mortgage, the  NO LEVY shall be enforced UNLESS preceded or
creditor, instead of foreclosing the mortgage, contemporaneously accompanied by service of
files an ordinary action for collection, the summons, together with the copy of the complaint,
effect is that he is deemed to have the application, applicant’s affidavit and bond, and
abandoned the mortgage. order and writ of attachment.
 REASON: otherwise, to allow it to  IRREGULARLY ENFORCED:
subsist despite the filing of the (1) When the sheriff attaches MORE or in
ordinary action, would amount to excess of the demand: in which case, it will
allowing SPLITTING of a single cause be reduced;
of action. (2) NOT preceded, or contemporaneously
 It may be issued before summons or before the accompanied by service of summons (see
court has acquired jurisdiction over the defendant. above).
 And it may be issued ex parte → meaning hearing.  If they are not complied with, can you ask for a
 Usually, attachments are secured at the lifting? YES.
commencement, and ex parte.
 Because if you notify the defendant first, he Is there an EXCEPTION of the requirement that the court
will be disposing of those properties. may enforce the writ even if NOT preceded or
contemporaneously accompanied by summons, etc.?
REMEDIES AVAILABLE to the party against whom the YES.
writ of attachment is issued: TWO REMEDIES TO LIFT
THE ATTACHMENT:  The requirement of prior or contemporaneous
accompaniment by service does NOT apply when:
(1) File an attachment bond under SEC. 12: the
discharge of the attachment upon giving of cash or
a counter-bond.
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(1) the summons could NOT be served

179
personally, or by substituted service What constitutes a VALID LEVY OF ATTACHMENT?
despite efforts, (SEC. 5)
(2) the defendant is a resident of the Philippines
180
temporarily absent therefrom ,  The sheriff or levying officer must ACTUALLY
(3) the defendant is a non-resident of the TAKE POSSESSION of the property attached.
181
Philippines , or  In other words, he must assert or enforce a
(4) the action is one in rem or quasi in rem: dominion over the property, adverse to, and
catch-all phrase. exclusive of the party against whom it is issued,
 So it is not necessary for the enforcement (levy on and such property must be in his possession.
attachment) that it must be preceded or  In executing the order of attachment, the levying
contemporaneously accompanied by service of officer must observe strictly of the provision of the
summons and the accompanying documents. rules.
 On the other hand, to create valid levy on
Whether you want to have the attachment lifted under attachment (create an attachment lien), the party
SEC. 12 or 13, it must always be with MOTION AND against whom the writ is issued must be preceded
HEARING. or contemporaneously accompanied by service of
summons and the accompanying documents.
 In SEC. 12: ―The court shall, after due notice and  The court must already have jurisdiction over
hearing xxx‖ the person (SEC. 7).
 In SEC. 13: ―After due notice and hearing xxx‖  The manner of attachment in that Section,
just read it.
INSUFFICIENCY OF THE BOND: another ground for the
lifting of the attachment: Real property, or By filing with the registry of deeds a
growing crops copy of the order, together with a
(1) Kulang, thereon, or any description of the property attached,
(2) The bonding company is not ____ (?) interest therein and a notice that it is attached, or
that such real property and any
UNLIKE the application for the issuance of attachment, as
interest therein held by or standing
it can be done WITHOUT HEARING.
in the name of such other person
 Meaning, ex parte. are attached, and by leaving a copy
of such order, description, and
May an attached property discharged on the basis of a notice with the occupant of the
counter-bond, be subsequently attached by the creditor in property, if any, or with such other
the same case? NO. person or his agent if found within
the province. Where the property
 Attached property which has been released by has been brought under the
virtue of the counter-bond may NOT be operation of either the Land
subsequently attached by the same creditor in the Registration Act or the Property
same case, because the second attachment will Registration Decree, the notice shall
have the effect of nullifying the previous order of
contain a reference to the number of
discharge.
the certificate of title, the volume
What are the PROPERTIES EXEMPT FROM and page in the registration book
ATTACHMENT? All properties exempt from execution are where the certificate is registered,
also exempt from attachment (SEC. 5). and the registered owner or owners
thereof.
May property in custodia legis be attached? YES (last
par., Sec. 7). Personal By taking and safely keeping it in his
property capable custody, after issuing the
 A copy of the writ of attachment shall be filed with of manual corresponding receipt therefor.
the proper court or quasi-judicial agency, and notice delivery
of the attachment served upon the custodian of
such property. Stocks or shares, By leaving with the president or
 So you can still attach even if it is in custodia legis. or an interest in managing agent thereof, a copy of
 HOW DONE: writ of attachment is filed to the court stocks or shares, the writ, and a notice stating that the
or quasi-judicial agency who has custody of the of any stock or interest of the party against
property, AND notice of attachment served to the corporation or whom the attachment is issued is
custodian.
company attached in pursuance of such writ.
179
It contemplates SEC. 14, RULE 14: that the defendant’s identity or Debts and By leaving with the person owing
his whereabouts is UNKNOWN, and cannot be ascertained despite credits, including such debts, or having in his
diligent efforts. bank deposits, possession or under his control,
180
SEC. 16, RULE 14.
181 financial interest, such credits or other personal
SEC. 15, RULE 14.
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royalties, property, or with his agent, a copy of  After examination of the debtor of the judgment-
commissions and the writ, and notice that the debts obligor.
other personal owing by him to the party against  Read in relation to SEC. 43, RULE 39: if he denies
property not whom attachment is issued, and the it, or makes a legal or equitable claim, the court
CANNOT order him to deliver.
capable of credits and other personal property
 What may the court do? It can authorize the
manual delivery in his possession, or under his
judgment-obligor to institute a separate
control, belonging to said party, are action to enforce the garnishee’s liability, and
attached in pursuance of such writ forbid transfer in the meantime.
 NOT exceeding ONE HUNDRED TWENTY
Interest of the By serving the executor or (120) DAYS.
party against administrator or other personal
whom attachment representative of the decedent with SEC. 11: WHEN ATTACHED PROPERTY MAY BE SOLD
is issued in a copy of the writ and notice that AFTER LEVY ON ATTACHMENT AND BEFORE ENTRY
property said interest is attached. A copy of OF JUDGMENT: enumeration of cases where the
belonging to the said writ of attachment and of said attached property may be SOLD PENDENTE LITE.
estate of the notice shall also be filed in the office
decedent, of the clerk of the court in which said  A property under attachment may only be sold upon
whether as heir, estate is being settled and served finality of judgment; that is why it is only until levy.
legatee, or upon the heir, legatee or devisee  But this section enumerates to us instances when
there can be sale or disposition of property
devisee concerned.
pendente lite:
(1) The property attached is perishable, or
(2) The interests of all the parties to the action
SEC. 8: EFFECT OF ATTACHMENT OF DEBTS,
will be subserved by the sale thereof.
CREDITS AND ALL OTHER SIMILAR PERSONAL
PROPERTY: All persons having in their possession or
SEC. 14: what is the remedy of a third person who claims
under their control any credits or other similar personal
title to or right of possession over the property under
property belonging to the party against whom attachment
attachment? It is the same as THIRD PARTY CLAIMS
is issued, or owing any debts to him, shall be liable to the
under RULE 39.
applicant for the amount of such credits, debts or other
similar personal property.
 You can go against the bond, or in a separate
action.
 Until the attachment is discharged, or any judgment
 May the court hearing the separate action issue an
recovered by him is satisfied.
injunction? YES.
 EXCEPTIONS: such property is delivered or
 Will that constitute undue interference by
transferred, or such debts are paid.
one court to the processes of a co-equal
 EXAMPLE: if you are the lessee, and the lessor is
court? NO.
the party against whom the attachment was issued,
and you are paying monthly rents.
SEC. 15: enumerates to us how the judgment may be
 When you are served as a lessee, the rents
satisfied out of the attached property.
will no longer be paid to the lessor.
 Parang sina-satisfy mo na.
SEC. 9: EFFECT OF ATTACHMENT OF INTERESTS IN
PROPERTY BELONGING TO THE ESTATE OF A
SEC. 16: if after application of the property attached to the
DECEDENT: can you attach the prospective share of an
payment of the judgment, and there is still a BALANCE,
heir when it is still being settled by the probate court?
how will that be collected? ORDINARY EXECUTION
(RULE 39).
 What is the effect of the interest of an heir in a
property belonging to the estate?
 And if there is excess? Isoli mo yan kay judgment-
(1) Such attachment shall not impair the powers
obligor.
of the executor or administrator over such
 If it is not returned, it will constitute unjust
property for the purpose of administration.
enrichment.
(2) Such attachment shall be reported to the
court when any petition for distribution is
SEC. 17: REMEDY OF THE JUDGMENT OBLIGEE IF
filed.
EXECUTION IS RETURNED UNSATISFIED, where the
 Then, the property attached shall be delivered NOT
judgment-obligor has posted a counter-bond: this section
to the heir.
is the remedy against the counter-bond/cash posted to lift
 To the officer making the levy.
the attachment under SEC. 12.
HOW LIABILITY OF THE GARNISHEE CAN BE
 Surety/eis shall become charged on such counter-
ENFORCED: SEC. 10: The debtor may be required to
bond and bound to pay the judgment obligee upon
attend before the court for examination re: his liability.
demand the amount due under the judgment.
 So there must first be a demand from the surety.
 If he does not deny it, he shall be ordered to pay.
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 The amount may be recovered from such surety or that transpired after the original pleading was
sureties after notice and summary hearing in the filed.
same action. (3) Before appeal was perfected: this is after the
 If is in cash, the court will just order the release of trial and there is a decision, can attachment
the cash to satisfy the judgment. still be issued? YES.
 BUT if it is a counter-bond, here is the process  Because it is for the protection of the
(according to the SC): interest of the parties, not subject of
(1) Execute the judgment; the appealed judgment.
(2) It is necessary that execution is returned  RESIDUAL JURISDICTION.
unsatisfied: meaning, the payment was not  Last, Par. SEC. 9, RULE 41: prior to
enough after the sale of the property the transmittal of the record or record
attached; on appeal, the court may issue orders
(3) Demand from the surety; for the protection and preservation of
(4) If the surety does not pay, file a motion: the rights of the parties that do not
notice and summary hearing. involve the matters litigated in the
 It is summary as the hearing will only appeal.
be about the amount of the balance.  An attachment is not a matter litigated
 Not the whole, as the judgment has in the appeal.
already been partially satisfied.  So if you will file for an application for
 You cannot go to the surety immediately → execute damages, it must be BEFORE the
first. perfection of the appeal.
 The remedy to go against the counter-bond under  If you are the one filing an
SEC. 12 posted to lift the attachment is under SEC. appeal, do not file a notice of
17. appeal / record on appeal first.
 Because if the appeal is
SEC. 18: how money deposited by a party against whom perfected, the court loses
attachment was issued that is discharged be disposed of jurisdiction.
after judgment against him:  In a similar case (PNB V.
COURT OF APPEALS), the
 FAVORABLE TO THE PLAINTIFF: the cash effect of a perfection of appeal
deposit will be applied under the direction of the is that the court loses
court to the satisfaction of any judgment rendered jurisdiction over him.
in favor of the attaching party.  His remedy now is
 BALANCE (sobra): refunded to the depositor before the appellate
or his assignee. court.
 FAVORABLE TO THE DEFENDANT: the whole  Although there is last
sum deposited must be refunded to him or his par., SEC. 9, RULE 41
assignee. asking for the
 Interest? NO, as the same is deposited in the court. preservation / protection
of the rights of the
SEC. 19: how attached property be disposed of where the parties not a matter
judgment is rendered against the defendant: litigated in the appeal,
the only condition is
 It shall be delivered to the party against whom here is that prior to
attachment was issued, and the order of transmittal of record on
attachment discharged. appeal.
 In other words, na-dispose na, so balik.  HOWEVER,
APPLICATION FOR
SEC. 20: PROCEDURE TO GO AGAINST THE DAMAGES must be
ATTACHMENT BOND under SEC. 4: done PRIOR to the
perfection of the appeal,
 We just discussed that SEC. 17 is the remedy to go or
against the counter-bond under SEC. 12. (4) Before judgment becomes executory.
 Now, this Section is the remedy to go against the  Why are there stages? If the application for
attachment bond. attachment has been issued at the commencement
 An APPLICATION FOR DAMAGES on account of and ex parte and you do not raise it, they are
improper or irregular or excessive attachment: DEEMED WAIVED (SEC. 2, RULE 9).
(1) At the commencement of the action: if the  If you are in the appellate court, can you also apply
application for attachment has been applied there, as when the decision is reversed and the
for at the commencement of the action and party against whom the writ was issued won? Is he
issued ex parte, then file the application as a entitled to damages? YES.
COUNTER-CLAIM in the Answer.  REASON: the plaintiff has no sufficient
 The counterclaim is COMPULSORY. cause for the attachment, which is a
(2) Before trial: by SUPPLEMENTAL guarantee in his affidavit.
COUNTER-CLAIM, because it is an event
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 If he wins, apply for damages with the cognizable by this court.

appellate court BEFORE judgment becomes  If Congress wanted to add to the jurisdiction
final and executory. of the SC, it can do so by legislation,
 WITH DUE NOTICE: to the attaching party/surety. provided that it secures the consent of the
 Only then can he be entitled to damages.
SC (FABIAN V. DESIERTO).
 AND included in the judgment.
o REMEDY: the only mode of appeal cognizable is
WHEN APPELLATE COURT REVERSES THE petition for review on certiorari.
DECISION: when the party against whom the attachment o PERIOD: sixty (60) days.
was issued won, he must claim for damages. o Also, certiorari does not lie if there is no plain,
speedy and adequate remedy available.
 By filing an application to the APPELATE COURT
with notice, before the judgment of the appellate
court becomes executory.
NOTE: The annulment of judgments, as a recourse, is
Kung kulang „yung bond, can the court require the plaintiff equitable in character, allowed only in exceptional cases,
to pay more? YES. as where there is no available or other adequate remedy.
It is generally governed by Rule 47 of the 1997 Rules of
 Nothing herein contained shall prevent the party Civil Procedure. Section 1 thereof expressly states that the
against whom the attachment was issued from Rule "shall govern the annulment by the Court of Appeals
recovering in the same action the damages of judgments or final orders and resolutions in civil action
awarded to him from any property of the attaching of Regional Trial Courts for which the ordinary remedies of
party not exempt from execution should the bond or new trial, appeal, petition for relief or other appropriate
deposit given by the latter be insufficient or fail to remedies are no longer available through no fault of the
fully satisfy the award. petitioner." Clearly, Rule 47 applies only to petitions for the
nullification of judgments rendered by regional trial courts
NOVEMBER 10, 2016
filed with the Court of Appeals. It does not pertain to the
nullification of decisions of the Court of Appeals.
RULE 47:
Petitioners argue that although Rule 47 is a newly-
ANNULMENT OF JUDGMENTS OF FINAL ORDERS established rule, the procedure of annulment of judgments
AND RESOLUTIONS has long been recognized in this jurisdiction. That may be
so, but this Court has no authority to take cognizance of
an original action for annulment of judgment of any lower
RULE 47: ANNULMENTS OF JUDGMENT OF RTC, in court. The only original cases cognizable before this Court
relation to SEC. 9, BP 129, NO. 2. are "petitions for certiorari, prohibition, mandamus, quo
warranto, habeas corpus, disciplinary proceedings against
 EXCLUSIVE ORIGINAL JURISDICTION OF THE members of the judiciary and attorneys, and cases
COURT OF APPEAL: (2) annulment of judgments affecting ambassadors, other public ministers and
of the RTCs. consuls." Petitions for annulment of judgment are not
 RTC only. among the cases originally cognizable by this Court.
 REMEDY TO ANNUL THE JUDGMENT OF THE
CA: NO REMEDY. Moreover, if what is desired is an appeal from a decision
of the Court of Appeals, which petitioners could have been
GRANDE V. UNIVERSITY OF THE PHILIPPINES (2006): entitled to under ordinary circumstances, the only mode of
the remedy of Rule 47 is not available. appeal cognizable by this Court is "a petition for review on
certiorari." That is governed by and disposed of in
o What remedy is available against the judgment of
accordance with the applicable provisions of the
the Court of Appeals: either Rule 45 or Rule 65.
Constitution, laws, Rules 45; 48; Sections 1, 2, and 5 to 11
o Rule 47 is not a remedy to annul the judgment of
of Rules 51; 52; and 56. Notably, Rule 47 on annulment of
the CA.
judgments has nothing to do with the provisions which
 You file it also to the CA? NO.
govern petitions for review on certiorari. Thus, it is totally
o The remedy, therefore, is petition under Rule 45 or
inappropriate to extend Rule 47 to the review of decisions
65.
of the Court of Appeals. Then too, appeals by certiorari to
o Can you go to the SC to annul judgments of the
this Court must be filed within fifteen (15) days from notice
CA? NO.
of the judgment or the final order or resolution appealed
o SC: This Court has no authority to take cognizance
from. Even if we were to treat the petition for annulment of
of an original action for annulment of judgment of
judgment as an appeal by certiorari, the same could not
any lower court.
be given due course as it had been filed several months
 Because under the Constitution, the SC only
after the Court of Appeals decision had already lapsed to
has original jurisdiction over two things.
finality.
 There is no mention of annulment of
judgments of the CA originally Admittedly, this Court has discretionary power to take
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cognizance of a petition over which it ordinarily has no agencies, therefore, wala.

jurisdiction "if compelling reasons, or the nature and  This is akin to the right to appeal, and said
importance of the issues raised, warrant the immediate that it is a mere statutory privilege.
exercise of its jurisdiction." Hence, in Del Mar v. Phil. o So the law speaks of annulment of judgments of
Amusement and Gaming Corp., the Court took cognizance RTCs, and it does not say annulments of judgment
of an original petition for injunction after determining that of quasi-judicial bodies.
the allegations therein revealed that it was actually one for o Prof.’s comment: in the Judiciary Act of 1948, there
prohibition. We, however, cannot adopt that tack for is also no such thing as annulment of judgment, but
purposes of this case. Ostensibly, even if the averments in it is a recognized jurisdiction of the CFI, under the
the present petition sufficiently present the existence of all-catch provision like in SEC. 19, of B.P. Blg 129
grave abuse of discretion amounting to lack or excess of → in all cases not within the exclusive jurisdiction of
jurisdiction and on that basis it could be treated as a a court or tribunal, then, CFI (now RTC).
special civil action for certiorari under Rule 65, still it could  And in this case, the CA, and Prof. agrees,
not be given due course since it was filed way beyond the has no jurisdiction over annulments of
period for filing such special civil action. Moreover, judgment of quasi-judicial bodies, as the law
certiorari can only lie if there is no appeal, nor any plain, merely speaks of annulments of judgment of
speedy and adequate remedy in the ordinary course of RTCs.
law.  So for Prof., it should go to the RTC, as if it
was like the old law, because if jurisdiction is
not lodged with any tribunal, then it should
be in the RTC.
 It is not like the right to appeal.
Does RULE 47 apply also to judgments of QUASI-
JUDICIAL BODIES? NO, only to RTCs.  In fact, an action for annulment of
judgment is a remedy in law,
FRAGINAL V. HEIRS OF PARAÑAL (2007): there was a independent to the case, so it is not
decision by the PARAD (Provincial Agrarian Reform the right to appeal.
Adjudicator of the Department of Agrarian Reform NOTE: The Petition for Annulment of Judgment filed by
182
Adjudication Board [DARAB]) as a quasi-judicial body , Fraginal, et al. before the CA failed to meet the foregoing
and Fraginal filed with the Court of Appeals for annulment conditions.
of judgment. It was instituted an action for annulment of
judgment with prayer for preliminary injunction or First, it sought the annulment of the PARAD Decision
restraining order. They insisted that the PARAD decision when Section 1 of Rule 47 clearly limits the subject matter
is void, as it was issued without jurisdiction. The CA of petitions for annulment to final judgments and orders
dismissed the petition, ruling that a petition for annulment rendered by Regional Trial Courts in civil actions. Final
of judgment under RULE 47 of the Revised ROC may be judgments or orders of quasi-judicial tribunals or
availed of in civil cases of the RTCs. Also, this rule states administrative bodies such as the National Labor
that recourse may be only had when the ordinary modes Relations Commission, the Ombudsman, the Civil Service
of appeal, NT, are no longer available through no fault of Commission, the Office of the President, and, in this case,
the petitioner. On the other hand, the petitioners the PARAD, are not susceptible to petitions for annulment
ratiocinated this instant recourse for their failure to avail of under Rule 47.
the remedy provided for under Rule 65 of the Revised
Rules of Court, without fault. Speaking through Justice Jose C. Vitug, the Court, in
Macalalag v. Ombudsman, ratiocinated:
o CA ruling: the petition fails to offer any explanation
as to how it lost that remedy except for its claim that Rule 47, entitled "Annulment of Judgments or
they failed to avail of Rule 65 without any fault on Final Orders and Resolutions," is a new provision
their part. And even if We are to grant it arguendo, under the 1997 Rules of Civil Procedure albeit
Rule 47 being exclusive to judgments and final the remedy has long been given imprimatur by
orders and resolution in civil actions of Regional the courts. The rule covers "annulment by the
Trial Courts is not available to the petitioners. Court of Appeals of judgments or final orders and
o ISSUE: does the court of appeals have jurisdiction resolutions in civil actions of Regional Trial
to annul judgments or decisions of quasi-judicial Courts for which the ordinary remedies of new
bodies? NO. trial, appeal, petition for relief or other appropriate
o BASIS: SEC. 1 and 2 of Rule 47. remedies could no longer be availed of through
o Because the law says annulment of judgments of no fault of the petitioner." An action for annulment
RTC, he applied the maxim expressio unius est of judgment is a remedy in law independent of
exclusio alterius. the case where the judgment sought to be
 Since there was no mention of quasi-judicial annulled is rendered. The concern that the
remedy could so easily be resorted to as an
182 instrument to delay a final and executory
RULE 43, but he did not appeal, so he went for annulment of
judgment.
judgment, has prompted safeguards to be put in
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place in order to avoid an abuse of the rule. as they are applicable and not inconsistent with
Thus, the annulment of judgment may be based the provisions of this Rule.
only on the grounds of extrinsic fraud and lack of
jurisdiction, and the remedy may not be invoked There is no basis in law or the rules, therefore, to
(1) where the party has availed himself of the extend the scope of Rule 47 to criminal cases. As we
remedy of new trial, appeal, petition for relief or explained in Macalalag v. Ombudsman, when there is no
other appropriate remedy and lost therefrom, or law or rule providing for this remedy, recourse to it cannot
(2) where he has failed to avail himself of those be allowed, viz.:
remedies through his own fault or negligence.
Parenthetically, R.A. 6770 is silent on the remedy
. . . The right to appeal is a mere statutory of annulment of judgments or final orders and
privilege and may be exercised only in the resolutions of the Ombudsman in administrative
manner prescribed by, and in accordance with, cases. In Tirol, Jr. v. Del Rosario, the Court has
the provisions of law. There must then be a law held that since The Ombudsman Act specifically
expressly granting such right. This legal deals with the remedy of an aggrieved party from
axiom is also applicable and even more true orders, directives and decisions of the
in actions for annulment of judgments which Ombudsman in administrative disciplinary cases
is an exception to the rule on finality of only, the right to appeal is not to be considered
judgments. (Emphasis ours) granted to parties aggrieved by orders and
decisions of the Ombudsman in criminal or non-
Second, Section 1, Rule 47 does not allow a direct administrative cases. The right to appeal is a
recourse to a petition for annulment of judgment if other mere statutory privilege and may be exercised
appropriate remedies are available, such as a petition for only in the manner prescribed by, and in
new trial, and a petition for relief from judgment or an accordance with, the provisions of law. There
appeal. must then be a law expressly granting such right.
This legal axiom is also applicable and even
more true in actions for annulment of
Is RULE 47 applicable to annulled decisions of the RTC judgments which is an exception to the rule
rendered in CRIMINAL CASES? NO, not applicable. on finality of judgments.
PEOPLE V. BITANGGA (2007): same ruling in The Petition for Annulment of Judgment of the February
MACALALAD. 29, 2000 Decision of the RTC in Criminal Case No.
103677 was therefore an erroneous remedy. It should not
o REMEDY to annul judgments of RTC in criminal have been entertained, much less granted, by the CA.
cases: PETITION FOR HABEAS CORPUS.
NOTE: Section 1, Rule 47 of the Rules of Court, limits the Failure to comply with the requirements for annulment of
scope of the remedy of annulment of judgment to the judgment:
following:
 REQUIREMENTS (ALABAN V. COURT OF
Section 1. Coverage. — This Rule shall govern 183
APPEALS, 2005 ):
the annulment by the Court of Appeals of
judgments or final orders and resolutions in civil
actions of Regional Trial Courts for which the ALABAN V. COURT OF APPEALS (2005): petition was
ordinary remedies of new trial, appeal, petition for denied for failure to make use of available remedies.
relief or other appropriate remedies are no longer
available through no fault of the petitioner. o Here he did not comply with the requirements.
The remedy cannot be resorted to when the RTC

judgment being questioned was rendered in a criminal 183
According to the Rules, notice is required to be personally given to
case. The 2000 Revised Rules of Criminal Procedure itself known heirs, legatees, and devisees of the testator. A perusal of the will
does not permit such recourse, for it excluded Rule 47 shows that respondent was instituted as the sole heir of the decedent.
from the enumeration of the provisions of the 1997 Petitioners, as nephews and nieces of the decedent, are neither
Revised Rules of Civil Procedure which have suppletory compulsory nor testate heirs who are entitled to be notified of the
probate proceedings under the Rules. Respondent had no legal
application to criminal cases. Section 18, Rule 124
obligation to mention petitioners in the petition for probate, or to
thereof, provides: personally notify them of the same. Besides, assuming arguendo that
petitioners are entitled to be so notified, the purported infirmity is
Sec. 18. Application of certain rules in civil cured by the publication of the notice. After all, personal notice upon
procedure to criminal cases. — The provisions of the heirs is a matter of procedural convenience and not a jurisdictional
Rules 42, 44 to 46 and 48 to 56 relating to requisite. The non-inclusion of petitioners' names in the petition and
procedure in the Court of Appeals and in the the alleged failure to personally notify them of the proceedings do not
Supreme Court in original and appealed civil constitute extrinsic fraud. Petitioners were not denied their day in
cases shall be applied to criminal cases insofar court, as they were not prevented from participating in the proceedings
and presenting their case before the probate court.
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o There were available remedies.  Filed within SIXTY (60) DAYS after
o The failure to make use of available remedies was the petitioner learns of the judgment,
without sufficient justification → it is with the fault of final order, or other proceeding to be
the petitioner. set aside, and NOT MORE THAN SIX
(6) MONTHS after such judgment or
o GOOD EXAMPLE: when there is a judgment and
final order was entered, or such
hindi mo talaga alam and it became final for a long
proceeding was taken.
time.  Grounds: FAME.
 Then you learned about it, and then you  Here, it is only lack of jurisdiction AND F (in FAME)
immediately filed. → EXTRINSIC FRAUD: shall not be a valid ground
 You could not have availed of NT as you if it is availed or could have been availed of, but did
never knew about it. not avail of it, in a MNT or a PRJ.
 You could not have appealed it as you have  What is the nature of a PRJ under RULE
not received notice of the judgment. 38? It is an EQUITABLE REMEDY.
 In which case, you can file for annulment of  The court will not grant it unless there
judgment. is really clear showing of FAME.
 If there is none, the relief cannot be
NOTE: As parties to the probate proceedings, petitioners granted.
could have validly availed of the remedies of motion for  Not granted unless there is really showing of
new trial or reconsideration and petition for relief from FAME.
judgment. In fact, petitioners filed a motion to reopen,  The procedure must be strictly followed here.
which is essentially a motion for new trial, with petitioners  OTHERWISE, you would violate the res
praying for the reopening of the case and the setting of judicata rule, as that is the basis from
granting of relief of judgment as to form (see
further proceedings. However, the motion was denied for
contents of affidavit of merits).
having been filed out of time, long after the Decision
 HOWEVER, PRJ, being the last remedy,
became final and executory. Conceding that petitioners may only be availed of if there were available
became aware of the Decision after it had become final, remedies at law and he failed to comply with
they could have still filed a petition for relief from it, or he availed of it and it was denied.
judgment after the denial of their motion to reopen.  If the remedies at law were available
Petitioners claim that they learned of the Decision only on BUT you failed to avail of it/failed to
4 October 2001, or almost four (4) months from the time exhaust them, you cannot proceed for
the Decision had attained finality. But they failed to avail of RULE 38, 37.
the remedy. For failure to make use without sufficient  Otherwise, the res judiciata rule will
justification of the said remedies available to them, be violated.
petitioners could no longer resort to a petition for
annulment of judgment; otherwise, they would benefit SEC. 3: PERIOD FOR FILING ACTION:
from their own inaction or negligence.
 FRAUD: within FOUR (4) YEARS FROM
DISCOVERY.
SEC. 1: COVERAGE: RULE 47 applies only to civil  Knowledge.
cases/actions of RTC for which the ordinary remedies of  LACK OF JURISDICITON: BEFORE it is barred by
NT (RULE 37), appeal, petition for relief of judgment, or laches or estoppel.
other appropriate remedies (can be RULE 65), are no
longer available through no fault of the petitioner. SEC. 4: FILING AND CONTENTS OF PETITION →
VERIFIED PETITION which must already be supported of
 So they are not available through no fault of the affidavits of witnesses, as in the case of extrinsic fraud.
petitioner.
 Affidavits of witnesses must already be attached to
SEC. 2: GROUNDS FOR ANNULMENT: the petition: testimonies;
 Documents: if documentary evidence.
 TWO GROUNDS (SEC. 2):  Sworn Certification: Certification Against Forum
184
(1) Extrinsic fraud ; or Shopping (as it is technically an initiatory pleading).
(2) Lack of jurisdiction:  This is an original action for annulment of
 Again the remedies are: judgment.
(a) If you failed to file an Answer, but before
judgment: Motion to Lift Order of Default; SEC. 5: if NO MERIT: dismiss outright with specific
(b) After judgment, but before finality: Motion for reasons.
New Trial (RULE 37);
 Grounds: FAME. DEMETRIOU V. COURT OF APPEALS (1994): on
(c) Final and executory judgment: Petition for EXTRINSIC FRAUD.
Relief from judgment (RULE 38):
o Demetriou bought a property, covered by a CT.
However, after the sale, the seller surrendered to
184
the buyer, Dementriou the owner’s duplicate CT.
Same meaning as for filing MTLOOD, MNT, PRJ.
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But Demetriou did not register the sale. The seller, that in an action for recovery of possession of the lands
perhaps knowing that Demetriou is no longer which they had brought against the JB Line in the
residing in Bicol, he filed a petition for reconstitution Regional Trial Court of Albay (Civil Case No. T-1590),
owner’s duplicate certificate of title. There was no petitioners intervened and alleged substantially the same
opposition. The basis of reconstitution is the original facts as those alleged by them in their petition for
found in the Office of the RD, and it still under his annulment of judgment. We have gone over petitioners'
name as the buyer did not register the sale. Later answer in intervention in that case. We find that the
on, Demetriou discovered the same. The judgment allegation of forum shopping is without basis. While they
allowing the reconstitution has been final, so indeed alleged that private respondent had obtained a
Dementriou filed a petition for annulment of second owner's duplicate of TCT T-65878 knowing that
judgment on the ground of fraud: that the petitioner 2/3 of the land covered by the certificate had been sold to
who filed the reconstitution knew very well that them and that the "2nd owner's copy should be cancelled
there has already been a sale. and recalled considering the fact that the original is in fact
o SC: hindi „yan; that is NOT the kind of fraud. still existing and not lost," the allegation was made more
o What kind of fraud is in this case? INTRINSIC. for the purpose of demanding a partition, recognizing that
o What kind of fraud that may be subject of private respondent is the owner of 1/3 of the land.
annulment / relief from judgment / NT: EXTRINSIC Petitioner's intervention is thus different from their action in
→ it is the fraud that prevented the party from the Court of Appeals which is solely for the purpose of
presenting his case, and the one who caused the seeking the annulment of the judgment in CAD Case No.
fraud is the adverse party. T-1024 granting private respondent's petition for the
 As when he said, ―huwag ka ng pumunta sa issuance of a new owner's duplicate certificate of title.
court.‖
o In this case, Dementriou could have raised it as a
ground to oppose → INTRINSIC. ASIAN SURETY V. ISLAND STEEL (1982): Appellant
surety company acted as guarantor for Leonor Villanueva
NOTE: The appellate court is certainly right in holding that in the contract to sell executed in her favor by appellee
the use of a false affidavit of loss does not constitute corporation. Upon failure of Villanueva to fulfill her
extrinsic fraud to warrant the invalidation of a final obligation to pay the amount due, appellee corporation
judgment. The use of the alleged false affidavit of loss by filed with the Court of First Instance a complaint against
private respondent is similar to the use during trial or appellant company for recovery of the money obligation
forged instruments or perjured testimony. In the leading plus interest. At the trial, appellant surety company
case of Palanca v. Republic, it was held that the use of a attempted to prove its allegations that the contract to sell
forged instrument constituted only intrinsic fraud for while entered into by appellee corporation and Villanueva was
perhaps it prevented a fair and just determination of a fictitious and that no delivery of the goods in question was
case, the use of such instrument or testimony did not in fact made by the former to the latter. The trial court,
prevent the adverse party from presenting his case fully however, found that the GI sheets in question had in fact
and fairly. In the case at bar, petitioners were not really been delivered by appellee corporation to Villanueva and
kept out of the proceedings because of the fraudulent acts adjudged appellant surety company liable to appellee
of the private respondent. They could have rebutted or corporation for the amount involved plus interest. The
opposed the use of the affidavit and shown its falsity since lower court's judgment was sustained by the Court of
they were theoretically parties in the case to whom notice Appeals whose decision became final and executory. To
had been duly given. annul the said judgment and to enjoin execution thereof,
appellant surety corporation filed a complaint against
But a judgment otherwise final may be annulled not only
appellee corporation and the City Sheriff of Manila, setting
on the ground of extrinsic fraud but also because of lack of
forth the details of the alleged fraud committed by appellee
jurisdiction of the court which rendered it. In Serra Sera v.
corporation. The trial court dismissed the complaint.
Court of Appeals, on facts analogous to those involved in
Hence, this appeal.
this case, this Court already held that if a certificate of title
has not been lost but is in fact in the possession of o The bonding company filed an action to annul the
another person, the reconstituted title is void and the court judgment on the ground of fraud.
rendering the decision has not acquired jurisdiction.  Nag-moro moro lang kasi sila ng defendant,
Consequently the decision may be attacked any time. when in fact, no galvanized iron was ever
Indeed, Rep. Act No. 26, § 18 provide that " in case a delivered, and the sale was fictitious and
certificate of title, considered lost or destroyed be found or merely intended to defraud the bonding
recovered, the same shall prevail over the reconstituted company.
certificate of title." It was, therefore, error for the Court of o ISSUE: Isit proper to annul the judgment on the
Appeals to dismiss the petition for annulment of judgment ground of extrinsic fraud? NO, that is INTRINSIC
of the petitioners. FRAUD.
o That could have been a defense raised in the action
Nor was the filing of such a petition forum shopping in
for collection.
violation of Circular No. 28-91. Private respondents allege
o What is again EXTRINSIC FRAUD? It is the fraud
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caused by the adverse party which prevented him

from presenting his case.  If trial necessary: reception of evidence should be
 It does not go into the merits of the case. referred to a member of the court / RTC judge.
o REMEMBER, that is the same fraud in FAME when  There is Pre-Trial, and the procedure in ordinary
civil cases are observed.
you file for a PRJ.
 As when you already received the summons SEC. 7: EFFECT OF JUDGMENT: shall SET ASIDE the
for the complaint, and the plaintiff told you questioned judgment or final order and render the same
not to file your Answer as he will be asking NULL AND VOID.
for the dismissal of the case. Yun pala, na-
deafult ka na.  WITHOUT prejudice to the original action: can be
 That is extrinsic because you were refiled.
prevented by the other party from filing your  Assuming there is no jurisdiction.
answer/presenting your evidence.  The effect is not the same as below, kasi
wala ngang jurisdiction.
NOTE: It is elementary that an action to annul a final  HOWEVER, if set aside on the GROUND OF
judgment on ground of fraud will lie only if the fraud be EXTRINSIC FRAUD, the court, on motion, may
extrinsic or collateral in character (Almeda vs. Cruz, 84 order the RTC to try the case as if a timely motion
Phil. 636). Fraud is regarded as extrinsic or collateral MNT is filed.
where it has prevented a party from having a trial or from  Effect is like a relief from judgment.
presenting all of his case to the court. (Anuran vs. Aquino,  If a relief from judgment is granted, then
38 Phil. 29; see U.S. vs. Throckmorton, 98 U.S. 61, 25 L. as if the original judgment is vacated, and
the case shall proceed as if new trial has
Ed. 93)
been granted.
The finding of the Court of First Instance in Civil Case No.
SEC. 8: SUSPENSION OF PRESCRIPTIVE PERIOD: (for
51586 that there was indeed delivery of the goods to
the refiling of the original action) deemed suspended from
Villanueva by the appellee pursuant to a contract to sell
the filing of the original action until the finality of the
entered into in good faith, as affirmed by the Court of judgment of annulment.
Appeals sub silentio, laid to rest the issue as to validity of
the said contract to sell as well as the fact of delivery of  So even if you file a case in a court without
the goods in question. To allow Asian Surety to revive the jurisdiction, the period of prescription shall be
same question by the instant action to annul the judgment suspended from the filing of the original claim.
would not only violate the rule of res judicata, but would  Prescription will run again after finality of the
encourage the appellant's contumacios resistance of a just judgment for annulment.
and valid obligation. Hence, the order of dismissal of the  WHEN NOT SUSPENDED: where the extrinsic
complaint for annulment of the decision in Civil Case No. fraud is attributable to the plaintiff in the original
51586 should be affirmed. action.
SEC. 9: RELIEF AVAILABLE: may include award of

 Although it is an original action, it is damages, attorney’s fees and other relief.
nonetheless DISCRETIONARY.
 If PRIMA FACIE MERIT BE FOUND: given due  FINAL JUDGMENT: in all probability, executed
course and summons shall be served on the already → court may issue ORDERS OF
respondent. RESTITUTION, and other just and equitable reliefs.
 This is the only time where the Court of  Here, there is a final judgment already, and it is the
Appeals, in the exercise of its original one being annulled.
jurisdiction, that summons are issued and  So the court may issue such ORDERS OF
served. RESTITUTION.
 Before, it is the CFI (RTC now) that has
jurisdiction to annul judgments, as there was SEC. 10: ANNULMENT OF JUDGMENT OR FINAL
no law conferring jurisdiction to other courts. ORDERS OF MTC: to be filed to the RTC.
 Doon siya sa catch-all provision of the
CFI, that all actions not lodged with  Treated as an ordinary civil action, and SECS. 2, 3,
nay court or tribunal, exclusive 4, 7, 8 and 9 of this Rule shall be applicable.
original jurisdiction is vested in the  NOT for petition for relief.
CFI.  Here, NOT discretionary.
 Kaya lang, the authors of BP Blg. 129
thought that it is not proper for a court MIRANDA V. COURT OF APPEALS (1989): NOT
of co-equal jurisdiction to annul the anymore applicable, as the 1999 Code of Procedure
judgment of another, so they gave it includes dolo incidente.
to the Court of Appeals.
FACTS. [Rayos]
SEC. 6: PROCEDURE: procedure in ordinary civil cases
shall be observed. ISSUE:
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SC: If at all — and on this we do not rule categorically as SC: NO.

the matter is yet to be litigated in the court a quo — the
fraud might have been committed by Rayos after the NOTE: the affidavit supporting the petition for the issuance
conclusion of the contract. However, such fraud is not of the preliminary attachment may have been sufficient to
covered by the aforesaid rule, let alone the fact that it has justify the issuance of the preliminary writ, but it cannot be
yet to be established. considered as proof of the allegations contained in the
affidavit, which are mere conclusions of law, not statement
The fraud was after the contract. of facts. Petitioner in the instant case having squarely
controverted the private respondent's allegation of fraud, it
What is the fraud in the fulfilment of the obligation? Dolo was incumbent on the latter to prove its allegation. The
incidente (ART. 1171). burden of proving that there indeed was fraud lies with the
party making such allegation. This finds support in Section
1, Rule 131 of the Rules of Court which provides: "Each
[…]
party must prove his own affirmation allegations. . . . The
burden of proof lies on the party who would be defeated if
no evidence were given on either side." In this jurisdiction,
CALDERON V. IAC (1987): petitioner Calderon fraud is never presumed.
purchased from the private respondents the following: the
Luzon Brokerage Corporation (LBC, for brevity) and its
five (5) affiliate companies. […] The petitioner's Urgent Motion to Discharge Writ of
Preliminary Attachment was filed under Section 13, Rule
While as a general rule, the liability on the attachment
57. The last sentence of said provision indicates that a
bond is limited to actual damages, moral and exemplary
hearing must be conducted by the judge for the purpose of
damages may be recovered where the attachment was
determining whether or not there really was a defect in the
alleged to be maliciously sued out and established to be
issuance of the attachment.
so. (Lazatin vs. Twano et al, L-12736, July 31, 1961). Well
settled is the rule that the factual findings of the trial court
are entitled to great weight and respect on appeal,
especially when established by unrebutted testimonial and It appears from the records that no hearing was conducted
documentary evidence, as in this case. by the lower court. Indeed, when the case was called for
hearing, the plaintiff (private respondent herein), failed to
While Section 12, Rule 57 of the Rules of Court provides appear and the petitioner's motion was considered
that upon the filing of a counterbond, the attachment is submitted for resolution.
discharged or dissolved, nowhere is it provided that the
attachment bond is rendered void and ineffective upon the
filing of counterbond. The liability of the attachment bond
is defined in Section 4, Rule 57 of the Rules of Court. It is
clear from the above provision that the responsibility of the D.P. LUB OIL MARKETING CENTER, INC. V. NICOLAS
surety arises "if the court shall finally adjudge that the (1990):
plaintiff was not entitled thereto." In Rocco vs. Meads, 96
NOTE: The petitioner's prayer for a preliminary attachment
Phil. Reports 884, we held that the liability attaches if the
hinges' on the allegations in paragraph 16 of the complaint
plaintiff is not entitled to the attachment because the
and paragraph 4 of the affidavit of Daniel Pe which are
requirements entitling him to the writ are wanting, or if the
couched in general terms devoid of particulars of time,
plaintiff has no right to the attachment because the facts
persons, and places to support such a serious assertion
stated in his affidavit, or some of them, are untrue. It is,
that "defendants are disposing of their properties in fraud
therefore, evident that upon the dismissal of an
of the creditors." There is thus the necessity of giving to
attachment wrongfully issued, the surety is liable for
the private respondents an opportunity to ventilate their
damages as a direct result of said attachment.
side in a hearing, in accordance with due process, in order
to determine the truthfulness of the allegations. But no
[…] hearing was afforded to the private respondents the writ
having been issued ex parte. A writ of attachment can only
BENITEZ V. IAC (1987): private respondent Casa Filipina be granted on concrete and specific grounds and not on
Development Corporation filed a complaint against herein general averments merely quoting the words of the rules.
petitioner Helena T. Benitez for rescission of contract, plus
damages, with a prayer for preliminary attachment. […]
SANTOS V. AQUINO, JR. (1992): facts.
Allegation: she misapplied the money belonging to the
applicant. ISSUE: Was the substitution proper?
ISSUE: Din the TC properly conduct the proceedings? SC: there is no rule allowing substitution of attached
properties. The discharge may only be done in two ways:
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SECs. 12 and 13. debtor and that such execution was returned
unsatisfied in whole or to part;
NOTE: The rule is that when real property, or an interest b. that the creditor made a demand upon the surety for
therein, of the judgment debtor is attached, the levy the satisfaction of the judgment; and
creates a lien which nothing can subsequently destroy c. the surety he given notice and a summary hearing
except by the dissolution of the attachment. Prior in the same action as to his liability for the judgment
registration of the lien creates a preference, since the act under his counter-bond. (Towers Assurance
of registration is the operative act to convey and affect the Corporation vs. Ororama Supermart, 80 SCRA 262
land (Lu vs. IAC, et al., 169 SCRA 595; Vda. de Carvajal [1977).
vs. Coronado, 18 SCRA 635, 641).
In the case at bar, LEELIN had substantially complied with
There is no rule allowing substitution of attached property the foregoing requisites. A writ of execution had been
although an attachment may be discharged wholly or in issued and had been refused unsatisfied. It had filed a
part upon the security of a counterbond offered by the motion to charge the Surety on its counter-bond. A notice
defendant upon application to the court, with notice to, and for the hearing of the motion had been served on the
after hearing, the attaching creditor (Sec. 12, Rule 57, surety and summary hearing was held.
Rules of Court), or upon application of the defendant, with
notice to the applicant and after hearing, if it appears that
the attachment was improperly or irregularly issued (Sec.
13, Rule 57, Rules of Court).
VANGUARD ASSURANCE V. COURT OF APPEALS
If an attachment is excessive, the remedy of the defendant (1975):
is to apply to the court for a reduction or partial discharge
of the attachment, not the total discharge and substitution NOTE: A surety in a counterbond is not to be considered
of the attached properties. The reason for this is that the as a special intervenor in the principal case, joining issue
lien acquired by the plaintiff-creditor as of the date of the with the principal defendants; hence, its rights and
original levy would be lost. It would in effect constitute a liabilities need not be ascertained, fixed or adjudicated at
deprivation without due process of law of the attaching the same time with those of the principal defendant before
creditor's interest in the attached property as security for the final judgment, or in a supplemental pleading for that
the satisfaction of the judgment which he may obtain in the purpose.
action.
The procedure laid down in Section 20 of Rule 57 need
not be followed in a case where the plaintiff seeks from the
SEC. 17: PROCEDURE: surety in a counterbond filed by the defendant to lift an
order of attachment previously issued. Said section refers
(1) Execute judgment against the principal debtor; to recovery of damages by a party against whom
(2) attachment was issued and the remedy provided therein is
available only to the defendant, not the plaintiff.
After the judgment for the plaintiff had become executory

LEELIN V. C&S AGRO DEVELOPMENT (1983): and the execution is returned unsatisfied, the liability of the
bond automatically attaches, and if surety fails to satisfy
ISSUE: the judgment against defendant despite therefor, a writ of
NATURE OF COUNTERBOND: execution may issue against the surety to enforce the
obligation of the bond.
NOTE: It is the claim for damages on account of illegal
attachment that may be awarded only after proper hearing
and which shall be included in the final judgment. That TOWERS ASSURANCE V. ORORAMA (1977):
claim must be filed before the trial or before appeal is
NOTE: Under section 17, in order that the judgment
perfected or before the judgment becomes executory, with
creditor might recover from the surety on the counterbond,
due notice to the attaching creditor and his surety,
it is necessary (1) that execution be first issued against the
pursuant to Section 20 of Rule 57 of the Rules of Court. It
principal debtor and that such execution was returned
is thus clear that the cases cited by the Surety requiring
unsatisfied in whole or in part; (2) that the creditor made a
notice of hearing before the finality of the judgment in
demand upon the surety for the satisfaction of the
regards the claim of damages have no applicability in the
judgment, and (3) that the surety be given notice and a
case at bar. The application by the Trial Court of Section
summary hearing in the same action as to his liability for
20, Rule 57, is likewise misplaced.
the judgment under his counterbond.
Under Section 17 of Rule 57, in order that the judgment
The first requisite mentioned above is not applicable to
creditor may recover from the Surety on the counter-bond,
this case because Towers Assurance Corporation
it is necessary:
assumed a solidary liability for the satisfaction of the
a. that execution be first issued against the principal judgment. A surety is not entitled to the exhaustion of the
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properties of the principal debtor (Art. 2959, Civil Code; injunction even if the authority or order sought to be
Luzon Steel Corporation vs. Sia, L-26449, May 15, 1969, implemented emanated from another region.
28 SCRA 58, 63).
DIRECTOR OF THE BUREAU OF
But certainly, the surety is entitled to be, heard before an TELECOMMUNICATIONS V. ALIGAEN (1970): here
execution can be issued against him since he is not a there was a local telephone system in Roxas City (Region
party in the case involving his principal. Notice and VI). However, the Bureau of Telecommunications granted
hearing constitute the essence of procedural due process. PLDT also the license in Roxas City, emanating from
(Martinez vs. Villacete, 116 Phil. 326; Alliance Insurance & Manila, as the Director has offices in Manila. The case for
Surety Co., Inc. vs. Hon. Piccio, 105 Phil. 1192, 1200; injunction was filed in the CFI of Roxas. This Director
Luzon Surety Co., Inc. vs. Beson, L-26865-66, January questioned the jurisdiction of the CFI on the ground that it
30, 1970, 31 SCRA 313) has no jurisdiction as the order emanated from Manila.
SC: PWEDE.
Claim for damages under attachment bond: SEC. 20.
Claims against counter-bond in Sec. 12: SEC. 17. The act sought to be enjoined is within the region where
the court sits.
[…]
While the order to grant license emanated from Manila,
SEC. 3: GROUNDS FOR ISSUANCE OF A nonetheless his order will be implemented in Roxas City,
PRELIMINARY INJUNCTION: which is within the jurisdiction of the court.
 Applicant is entitled to relief demanded, or NOTE: A petition under oath alleging: (1) the legal right of
 Commission, continuance or non-performance of petitioner Belo (now respondent) to establish and operate
the act complained of would work injustice to the a telephone system in Roxas City as authorized by a
applicant; or legislative franchise and the certificate of public
EXAMPLES: convenience issued by the Public Service Commission,
(1) and his having actually established the telephone system
(2) Action to cancel contract on the ground of and operating the same; (2) the violation of petitioner
violations of the terms thereof. Belo's (now respondent) right by the unauthorized or
 Party, court, agency or a person is doing, illegal acts of the respondents (now petitioners) in taking
threatening, or is attempting to do, or is procuring or steps to install another telephone system in Roxas City
suffering to be done some act/s probably in
without previously having negotiated or entered into any
violation of the rights of the applicant respecting the
subject of the action of proceeding. arrangement with petitioner as required by law; and (3) the
(1) EXAMPLE: incompetent evidence → when a injury that would be caused to petitioner Belo (now
spouse, despite the objection of the other respondent) by the acts of respondents (now petitioners)
who is a party to a case, testifies in the case is considered sufficient as basis for the respondent court
against the latter. in issuing the writ of preliminary injunction prayed for.
1. Your action there is to stop the court
from allowing the wife to testify, In the case of Gonzales v. Secretary of Public Works, et
otherwise, it will render the judgment al., wherein the only question raised was whether the
ineffectual. Court of First Instance of Davao had jurisdiction to
entertain a case the main purpose of which was to prevent
SEC. 21, BP 129: the RTC shall exercise jurisdiction: the enforcement of a decision of the Secretary of Public
Works who was in Manila, this Court held that, inasmuch
Regional Trial Courts shall exercise original jurisdiction: as the acts sought to be restrained were to be performed
within the territorial boundaries of the province of Davao,
(1) In the issuance of writs of certiorari, prohibition, the Court of First Instance of Davao had jurisdiction to
mandamus, quo warranto, habeas corpus and
hear and decide the case, and to issue the necessary
injunction which may be enforced in any part of
their respective regions; and injunctive order. This Gonzales case was an action for
(2) In actions affecting ambassadors and other public certiorari and prohibition with preliminary injunction and/or
ministers and consuls. preliminary mandatory injunction to prevent the demolition
of Gonzales' dam in Davao in compliance with the order of
EXAMPLE: Angeles City: its injunctive orders may only be the Secretary of Public Works.
enforced within the respective regions ONLY.
It follows, therefore, that since the acts to be restrained
RULE: the injunction may be issued by the court of a were being done in Roxas City, or within the territorial
region where the order emanated. jurisdiction of respondent court, the latter had jurisdiction
to restrain said acts even if the office of respondent
Even if the implementation of the order will be Director of the Bureau of Telecommunications is in Manila,
implemented in another region. and that of respondent Regional Superintendent of Region
Conversely, where the injunction is sought to be IV is in Iloilo City.
implemented, that court in that region may issue the
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official stationed at Quezon City, namely, respondent

GONZALES V. SEC. of PUBLIC WORKS (1966): wherein Commissioner Edu, was impleaded as respondent in the
the only question raised was whether the Court of First Pangasinan court for a complete determination of the
Instance of Davao had jurisdiction to entertain a case the issues involved, the legality of Edu's order of dismissal
main purpose of which was to prevent the enforcement of being the pivotal issue to determine the merits of the
a decision of the Secretary of Public Works who was in mandamus and injunction aspects of the petition. In other
Manila, this Court held that, inasmuch as the acts sought words Mr. Edu was joined as respondent not for injunction
to be restrained were to be performed within the territorial purposes but mainly for testing the legality of his dismissal
boundaries of the province of Davao, the Court of First order and his transmittal thereof to his co-respondent
Instance of Davao had jurisdiction to hear and decide the registrar at Dagupan City to implement the same and
case, and to issue the necessary injunctive order. This terminate the services of the petitioner in Dagupan City.
Gonzales case was an action for certiorari and prohibition
with preliminary injunction and/or preliminary mandatory
injunction to prevent the demolition of Gonzales' dam in OLONGAPO V. NPC (1987):
Davao in compliance with the order of the Secretary of
Public Works. NOTE: We also find no valid reason to disturb the
conclusion of the trial court that it had no jurisdiction to
issue the writ of preliminary injunction sought by the
LIMJAP V. ANIMAS (1985): appellant. It is a well settled rule in this jurisdiction that the
jurisdiction of courts of first instance, now regional trial
NOTE: There should be no question either, following courts, to control or restrain acts by means of a writ of
Dagupan Electric Corporation, et al. vs. Hon. Paño, et al., injunction is limited to acts which are being committed or
95 SCRA 693 (1980), that the Court of First Instance of about to be committed within the territorial limits of their
Manila (now the Regional Trial Court) has jurisdiction to respective provinces or districts.
issue a Writ of Injunction against PPA or any of its
officials, if need be, since its offices are situated at the The argument of the appellant that the trial court has the
B.F. Homes Condominium, Intramuros, Manila, where its authority to restrain the sale by the NPC of electric power
business is managed by its Board of Directors and to the Municipality of Olongapo since the sale is made in
General Manager, and, therefore, within the territorial Manila, where the principal offices of the NPC are located,
jurisdiction of the Court of First Instance of Manila for and that all the managerial acts of the General Manager,
purposes of Section 44 of Republic Act No. 296, as including the authority to order the enforcement of the sale
amended. and delivery of electric power and energy to Olongapo,
Zambales, emanate from Manila, may be correct in so far
as it concerns the sale and delivery of electric power and
energy alone, . . . . It is to be noted, however, that the
herein appellant not only prayed that the NPC be
DAGUPAN ELECTRIC V. PANO (1980): restrained from selling and delivering electric power and
energy to the Municipality of Olongapo, but that the said
Does the CFI of QC issue the injunctive order to restore
municipality should also be enjoined from harassing
electric connection in Dagupan? YES, as Dagupan
appellant's employees and laborers from constructing,
Electric Company has principal offices in QC.
maintaining and operating its electric light, heat and power
That is where the bOD sits. system and from continuing to operate and maintain the
present plant, and from buying and receiving electric
NOTE: The Court of First Instance of Rizal at Quezon City power and energy from the NPC pursuant to the contract
has jurisdiction over Civil Case No. Q-26502. entered into by said municipality and the NPC.
The Dagupan Electric Corporation has its principal office In any event, the writ of preliminary injunction is an
in Quezon City where the business of the corporation is ancillary remedy with the sole object of preserving the
managed by the Board of Directors. Decisions of the said status quo until the merits of the case can be determined,
corporation are made in Quezon City. The employees of Since the merits of the case have already been
the Dagupan Electric Corporation in Dagupan City merely determined against the appellant, the writ asked for has
carry out the orders issued by the officials of said lost its purpose and effectivity. What it seeks to restrain no
corporation in Quezon City. Hence the acts sought to be longer exists or threatens to exist
restrained are being committed in Quezon City.
LIANGA BAY LOGGING V. ENAGE (1987):

DECANO V. EDU (1980):
NOTE: Clearly, the injunctive writ should not have been
PWEDE, as the act sought to be enjoined is in issued. The provisions of law explicitly provide that Courts
Pangasinan. of First Instance shall have the power to issue writ of
injunction, mandamus, certiorari, prohibition, quo warranto
NOTE: As in the above cited case of Aligaen, the national and habeas corpus in their respective places, if the
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CIVIL PROCEDURE
p
petition filed relates to the acts or omissions of an inferior the Court may already grant the petition.
court, or of a corporation, board, officer or person, within
their jurisdiction. The jurisdiction or authority of the Court
of First Instance to control or restrain acts by means of the  RA 7227: Bases Conversion prevents the court
writ of injunction is limited only to acts which are being from enjoining the development of the bases.
committed within the territorial boundaries of their
respective provinces or districts except where the sole
issue is the legality of the decision of the administrative ALLIED DOMECQ PHIL. INC. V. VILLON (2004):
officials.
NOTE: There is no question that respondent Clark Liberty
A different rule applies only when the point in controversy
is a registered enterprise of the Clark Special Economic
relates solely to a determination of a question of law
Zone and is primarily regulated by R.A. No. 7227,
whether the decision of the respondent administrative
otherwise known as the Bases Conversion and
officials was legally correct or not. We thus declared in
Development Act of 1992. The establishment, registration,
Director of Forestry v. Ruiz: "In Palanan Lumber &
and operation of respondent Clark Liberty and the other
Plywood Co., Inc., supra, we reaffirmed the rule of non-
enterprises within the Clark Special Economic Zone are
jurisdiction of courts of first instance to issue injunctive
projects (involving the private sector) which convert Clark
writs in order to control acts outside of their premises or
Air Base, a military reservation, "into productive uses." In
districts. We went further and said that when the petition
this connection, Section 21 of R.A. No. 7227 provides:
filed with the courts of first instance not only questions the
"SEC. 21. Injunction and Restraining Order. — The
legal correctness of the decision of administrative officials
implementation of the projects for the conversion into
but also seeks to enjoin the enforcement of the said
alternative productive uses of the military reservations are
decision, the court could not validly issue the writ of
urgent and necessary and shall not be restrained or
injunction when the officials sought to be restrained from
enjoined except by an order issued by the Supreme Court
enforcing the decision are not stationed within its territory.
of the Philippines." Verily, the Court of Appeals did not err
when it dismissed CA-G.R. SP No. 63802 for want of
EXISTING LAWS: jurisdiction.
 PD No. 1818: no PI may be issued by a court in a

case involving infrastructure project of the BASES CONVERSION AND DEVELOPMENT
government. AUTHORITY V. UY (2006):
NOTE: Firmly established is the doctrine that "jurisdiction

GARCIA V. BURGOS (1998):
over the subject matter is conferred by law." Section 19 of
NOTE: Section 1 of PD 1818 distinctly provides that "[n]o BP 129 shows that a Regional Trial Court has jurisdiction
court in the Philippines shall have jurisdiction to issue any over all civil cases in which the subject of litigation is
restraining order, preliminary injunction, or preliminary incapable of pecuniary estimation. Jurisprudence has
mandatory injunction in any case, dispute, or controversy recognized complaints for injunction with a prayer for
involving an infrastructure project . . . of the government, . temporary restraining order or writ of preliminary
. . to prohibit any person or persons, entity or government injunction. We explained at length this specie of cases in
official from proceeding with, or continuing the execution Manila Banking Corporation v. Court of Appeals.
or implementation of any such project, . . . or pursuing any
In the factual setting at bar, the Court rules that the
lawful activity necessary for such execution,
Parañaque RTC has jurisdiction over the complaint of
implementation or operation." At the risk of being
respondent Uy it being a case in which the subject of
repetitious, we stress that the foregoing statutory provision
litigation for permanent injunction against the termination
expressly deprives courts of jurisdiction to issue injunctive
of his contract, is incapable of pecuniary estimation. The
writs against the implementation or execution of an
prayer of respondent Uy in Civil Case No. 99-0425 to
infrastructure project. In the case at bar, the assailed
permanently enjoin petitioners from rescinding the LCA, is
March 18, 1996 Order of respondent judge specifically
not forbidden under RA 7227, PD 1818, and RA 8975.
enjoined petitioners from implementing their Memorandum
Said prohibitive laws cover only temporary or preliminary
of Agreement dated September 11, 1995 (except as to the
restraining orders or injunctions to prevent unjustified
Cebu South Coastal Road), which pertains to the
stoppage of the implementation of government projects;
implementation of the Metro Cebu Development Project,
but not permanent injunctions.
Phase III, a major component of which is the Cebu South
Reclamation Project. The petitioners were also enjoined Thus, the Parañaque RTC has jurisdiction to hear
from acting on or implementing all other contracts respondent Uy's action and even grant his supplication for
involving the said reclamation project. The issuance of a permanent injunction. While the issuance of the assailed
said writ of preliminary injunction evidently constitutes a TRO by Judge Helen Ricafort evidently constitutes a
blatant violation of PD 1818. The assailed Order is blatant violation of Section 21 of RA 7227 and hence void,
therefore void for being issued with grave abuse of the same has likewise been rendered moot for being
discretion and without jurisdiction. On this ground alone,
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CIVIL PROCEDURE
p
functus officio, the 20-day validity period of the TRO

having lapsed on January 3, 2000. REASON: because the authority of the sheriff is only to
levy property of the judgment obligor.
HOWEVER, where the writ of execution is issued by a
 RA 8975: labor court (NLRC), and a third party claim is filed, and the
third party claimant opts to file his third party claim, does
DFA V. FALCON (2010): this court have the authority to stop the court of the
NLRC? NO.
NOTE: From the foregoing, it is indubitable that no court,
aside from the Supreme Court, may enjoin a "national May a court issue an injunction against a quasi-judicial
government project" unless the matter is one of extreme agency? No, as a quasi-judicial body is at the same rank
as an RTC.
urgency involving a constitutional issue such that unless
the act complained of is enjoined, grave injustice or
 ONLY if it exercises quasi-judicial function.
irreparable injury would arise.  Exhaustion of administrative agencies: in the
exercise of quasi-judicial body.
As petitioners themselves pointed out, there are three
 If purely executive functions: no room for
types of national government projects enumerated in
such.
Section 2 (a), to wit:
SEC. 4: FORMAL REQUISITES: may be granted ONLY
(a) current and future national government
when:
infrastructure projects, engineering works and service
contracts, including projects undertaken by government-  The application in the action or
owned and -controlled corporations; proceeding is verified; and
 Show facts entitling the applicant to the
(b) all projects covered by R.A. No. 6975, as amended
relief demanded.
by R.A. No. 7718, or the Build-Operate-and-Transfer  You must have a right in esse: CLEAR
(BOT) Law; and RIGHT.
 It is not designed to protect future or
(c) other related and necessary activities, such as site
contingent right.
acquisition, supply and/or installation of equipment and  File a bond: can be dispensed with.
materials, implementation, construction, completion, o ―Unless exempted by the court.‖
operation, maintenance, improvement repair and  If included in a complaint / initiatory
rehabilitation, regardless of the source of funding. pleading: summons to be served.
o If the application is in the complaint itself,
From the foregoing, it can be gleaned that the trial court that will be raffled agad, but the other party
accepted BCA's reasoning that, assuming the e-Passport should be notified of the raffle and such
Project is a project under the BOT Law, Section 2 of the notice shall be preceded with summons
BOT Law must be read in conjunction with Section 5 (c) of and copy of the complaint.
Republic Act No. 9184 or the Government Procurement 
Reform Act to the effect that only the civil works
component of information technology projects are to be
considered "infrastructure." Thus, only said civil works
component of an information technology project cannot be
the subject of a TRO or writ of injunction issued by a lower
court.
A third party who claims over the owner of the attached /

levied property may file a third party claim.
REMEDY OF THE THIRD PARTY CLAIMANT:
(1) To file an action against the bond within 120 days

from its issuance; or
(2) File a separate action to claim title to or
possession of the property, and to protect his
rights, he can ask for PI.
If a court issues the writ of execution and the sheriff of the

that court levies a property, and there is a third party claim
and he opted to file a third party claim, would that
constitute an undue interference by a court against the
processes of a court with co-equal jurisdiction? NO,
BAER.

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What are the different types of actions?

What are the different types of actions?

What is the difference between an action and a special proceeding?

What is the difference between an action and a special proceeding?

REMEDIAL LAW

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SEC. 5: COMMENCEMENT OF ACTION: commenced by SUN INSURANCE V. ASUNCION: if there is non-payment

CABRERA V. TEJANO: the sale was executed on July 2, o RULES:

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SEC. 4: shall not apply to election cases, land registration

Section 4. Splitting a single cause of action; effect of. — If

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 The old Rules prohibited such, as there is a specific CUMULATIVE ALTERNATIVE

NO. 3: INSURANCE V. WARNER: there is an admiralty case

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 8 of 270

The following are juridical persons:

―Entities authorized by law‖ A REAL PARTY IN INTEREST is:

A corporation is a juridical person having separate

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Only a real party in interest is allowed to prosecute HELD:

Plaintiffs alleged that they the bona-fide stallholders

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FOREIGN CORPORATION HELD:

HANG LUNG BANK vs. SAULONG COMMENT:

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HELD: In extra-territorial service of summons, the action is either

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SEC. 15. Entity without juridical personality as HELD:

ESCOLIN’S CIVIL PROCEDURE-Agapito-Bantay-Caligagan-Fogata-Page 18 of 270

MERRILL vs. CA The rule is that a party is estopped to challenge the

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The non-inclusion of a necessary party does not prevent

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VDA DE HABERER vs CA, G.R. Nos. L-42699 to L-

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Effets of the death of a defendant in a civil suit are

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EFFECT OF DEATH OF A PARTY WHEN INVOLVED

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