JUSTICE Z. G.

LAGUILLES NOTES
on Civil Procedure Rules 1-39

General Provisions

RULE 1. APPLICABILITY OF THE RULES OF COURT

These Rules shall apply in all the courts, except in election cases, land registration, cadastral,
naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a
suppletory character and whenever practicable and convenient. (Sec. 1, Rule 1)

What is a Civil Action?

A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention
or redress of a wrong.

► Every ordinary civil action must be based on a cause of action — an act or omission that violates the rights of
the plaintiff. (G.R. No. 191031, Hacbang v. Alo, October 5, 2015)

What is a Special Civil action?

It is one which also governed by the rules for ordinary civil actions, but subject to the specific rules prescribed
for a special civil action.

What is a Criminal action?

A criminal action is one by which the State prosecutes a person for an act or omission punishable by law.

What is a special proceeding?

A special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.

► It is distinguished from an ordinary civil action where a party sues another for the enforcement or protection
of a right, or the prevention or redress of a wrong. To initiate a special proceeding, a petition and not a
complaint should be filed. (Ramon Ching and Po Wing Corp. v. Hon. Jansen R. Rodriguez, G.R. No. 192828, November
28, 2011)

A civil action is commenced by the filing of the original complaint in court. If an additional defendant is
impleaded in a later pleading, the action is commenced with regard to him on the dated of the filing of such
later pleading, irrespective of whether the motion for its admission, if necessary, is denied by the court. (Sec. 6,
Rule 1)

These Rules shall be liberally construed in order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding. (Sec. 6, Rule 1)

► The liberal interpretation of the rules applies only to justifiable causes and meritorious circumstances. (G.R.
No. 207156, Turks Shawarma Co. v. Pajaron, January 16, 2017)

► Where strong considerations of substantive justice are manifest in the petition, the strict application of the
rules of procedure may be relaxed, in the exercise of its equity jurisdiction. Thus, a rigid application of the rules
of procedure will not be entertained if it will only obstruct rather than serve the broader interests of justice in
the light of the prevailing circumstances in the case under consideration. (G.R. No. 181353, HGL Development
Corp v. Penuela, June 6, 2016)

► The rules of procedure are mere tools aimed at facilitating the attainment of justice, rather than its frustration.
A strict and rigid application of the rules must always be eschewed when it would subvert the primary objective
of the rules, that is, to enhance fair trials and expedite justice. Technicalities should never be used to defeat the
substantive rights of the other party. Every party-litigant must be afforded the amplest opportunity for the
proper and just determination of his cause, free from the constraints of technicalities. Considering that there was
substantial compliance, a liberal interpretation of procedural rules in this labor case is more in keeping with the
constitutional mandate to secure social justice." (Ibid)

RULE 2. CAUSE OF ACTION

Meaning of Cause of Action

It is the act or omission by which a party violates the right of another (Rule 2, Sec. 2).

Elements of cause of action:

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 a. a legal right in favor of the plaintiff;
b. a correlative duty of the defendant to respect the plaintiff's right; and
c. an act or omission of the defendant in violation of the plaintiff's right. (G.R. No. 191031, Hacbang v. Alo,
October 5, 2015)

Right of Action distinguished from Cause of Action

Right of action is the right to commence and prosecute an action to obtain the relief sought, while cause of
action is the act or omission by which a party violates the right of
another (Rule 2, Sec. 2).

Elements of Right of Action: (includes matters of timeliness; hence, the question of prescription or statute of
limitations should first be inquired into)
a. Existence of the cause of action;
b. Performance of all conditions precedent; and
c. The action must be instituted by the proper party.

 The cause of action in a Complaint is not determined by the designation given to it by the parties. The
allegations in the body of the Complaint define or describe it. The designation or caption is not
controlling more than the allegations in the Complaint. It is not even an indispensable part of the
Complaint." (G.R. No. 208343, Spouses Laus v. Optimum Security Services, Inc)

Failure to State Cause of Action ( must be distinguished from “ lack of cause of action”

Where there is failure to state a cause of action in a pleading, the remedy of the defendant is to move for
its dismissal on the ground that the pleading asserting the claim states no cause of action. Rule 16, Sec 1 (g)

 In determining the existence of a cause of action, only the allegations in the complaint may properly be
considered. For the court to do otherwise would be a procedural error and a denial of the plaintiff's right
to due process. [Aquino v. Quiazon, G.R. No. 201248, March 11, 2015]

 It is not "lack or absence of cause of action" that is a ground for dismissal of the complaint under Rule 16,
but rather, that "the complaint states no cause of action." [Ibid]

Test of Sufficiency of Action

 Whether or not admitting the facts alleged, the court could render a valid judgment upon the same in
accordance with the prayer in the complaint. [De Guzman v. Tabnagoi Realty, Inc., G.R. No. 154262,
February 11, 2015]

 The question of whether the complaint states a cause of action is determined by its averments regarding
the acts committed by the defendant. Thus, it must contain a concise statement of the ultimate essential
facts constituting the plaintiff's cause of action. To be taken into account are only the material allegations
in the complaint; extraneous facts and circumstances or other matters aliunde are not considered.”
(Juana Complex I Homeowners Association, Inc., et al. vs. Fil-Estate Land, Inc., G.R. No. 152272, March 5, 2012)

 The test of the sufficiency of the facts alleged in the complaint to constitute a cause of action is whether
or not, admitting the facts alleged, the court could render a valid judgment upon the same in accordance
with the prayer of the complaint.(De Guzman v. Tabnagoi Realty, Inc., G.R. No. 154262, February 11, 2015)

 The inquiry is into the sufficiency, not the veracity, of the material allegations, it follows that the analysis
should be confined to the four corners of the complaint, and no other. (Guillermo v. Philippine
Information Agency, G.R. No. 223751, March 15, 2017)

Splitting a Single Cause of Action and its Effects

Q: What is splitting a single cause of action?

A: The act of dividing a single cause of action, claim or demand into two or more parts, and bringing the suit for
one of such parts only, intending to reserve the rest for another separate action is the prohibited act of splitting a
single cause of action (Regalado).

Q: Can a person institute more than one suit for a single cause of action?
A: NO. A party may not institute more than one suit for a single cause of action. (Sec. 3, Rule 2)

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Q: What is the effect if two or more suits are instituted on the basis of the same cause of action?
A: If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment
upon the merits in any one is available as a ground for the dismissal of the others. (Sec. 4, Rule 2)

When a single cause of action is split, the remedy of the defendant is to move for its dismissal under Rule
16 on the ground that:

1) There is another action pending between the same parties for the same cause, or litis pendentia (Sec. 1[e]);
or
2) If the first action has already been finally terminated, on the ground of res judicata (Sec. 1[f]).

 The well-entrenched rule is that 'a party cannot, by varying the form of action, or adopting a different
method of presenting his case, escape the operation of the principle that one and the same cause of
action shall not be twice litigated.' (FCD Pawnshop and Merchandising Co.v. Union Bank of the Philippines,
G.R. No. 207914, January 18, 2017)

 The test to determine whether the causes of action are identical is to ascertain whether the same
evidence will sustain both actions, or whether there is an identity in the facts essential to the
maintenance of 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 a bar to the subsequent action. (Luzon Iron
Development Corp. v. Bridestone Mining and Development Corp., G.R. No. 220546, December 7, 2016)

 A cause of action may give rise to several reliefs, but only one action can be filed. A single cause of
action or entire claim or demand cannot be split up or divided into two or more different actions. The
rule on prohibiting the splitting of a single cause of action is clear.” [Butiong Vs. Plazo, G.R. No. 187524,
August 05, 2015]

 In Esperas v. CA, the Supreme Court held that the ultimate test in determining the presence of identity of
cause of action is to consider whether the same evidence would support the cause of action in both the
first and the second cases. Under the same evidence test, when the same evidence support and establish
both the present and the former causes of action, there is likely an identity of causes of action. [Riviera
Golf Club, Inc., Vs. CCA Holdings, B.V., G.R. No. 173783, June 17, 2015)

Q: What is a litis pendencia?

A: Litis pendentia is a Latin term, which literally means "a pending suit" and is variously referred to in some
decisions as lis pendens and auter action pendant. As a ground for the dismissal of a civil action, it refers to the
situation where two actions are pending between the same parties for the same cause of action, so that one of
them becomes unnecessary and vexatious. It is based on the policy against multiplicity of suits. (Grace Park
International Corp. v. Eastwest Banking Corp., G.R. No. 210606, July 27, 2016)

Joinder and Mis-joinder of Causes of Action.

Joinder of causes of action. — The assertion, in the alternative or otherwise, of as many causes of action as a
party may have against another in one pleading alone is valid. (Rule 2, Section 5)

 The joinder of causes of action is indeed allowed under Section 5, Rule 2 of the 1997 Rules of Court; but
if there are multiple parties, the joinder is made subject to the rules on joinder of parties under Section 6,
Rule 3. (Central Bank Board of Liquidators v. Banco Filipino Savings and Mortgage Bank, G.R. No. 173399,
February 21, 2017)

 By a joinder of actions, or more properly, a joinder of causes of action is meant the uniting of two or
more demands or rights of action in one action, the statement of more than one cause of action in a
declaration. It is the union of two or more civil causes of action, each of which could be made the basis
of a separate suit, in the same complaint, declaration or petition. A plaintiff may under certain
circumstances join several distinct demands, controversies or rights of action in one declaration,
complaint or petition.

 The objectives of the rule or provision are to avoid a multiplicity of suits where the same parties and
subject matter are to be dealt with by effecting in one action a complete determination of all matters in
controversy and litigation between the parties involving one subject matter, and to expedite the
disposition of litigation at minimum cost. The provision should be construed so as to avoid such
multiplicity, where possible, without prejudice to the rights of the litigants.”

 Nevertheless, while parties to an action may assert in one pleading, in the alternative or otherwise, as
many causes of action as they may have against an opposing party, such joinder of causes of action is
subject to the condition, inter alia, that the joinder shall not include special civil actions governed by
special rules. (Lilia B. Ada vs. Florante Baylon, G.R. No. 182435, August 13, 2012)

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Misjoinder of Causes of Action
 Two or more causes of action are joined in one complaint when they should not have been joined. ( Rule
2, Section 6)

 Misjoinder of causes of action is NOT a ground for dismissal of an action. A misjoined cause of action
may, on motion of a party or on the initiative of the court, be severed and proceeded with separately
(Rule 2, Section 6)

Misjoinder of causes of action. — Misjoinder of causes of action is not a ground for dismissal of an action. A
misjoined cause of action may, on motion of a party or on the initiative of the court, be severed and proceeded
with separately.

 The action for partition filed by the petitioners could not be joined with the action for the rescission of
the said donation inter vivos in favor of Florante. Lest it be overlooked, an action for partition is a special
civil action governed by Rule 69 of the Rules of Court while an action for rescission is an ordinary civil
action governed by the ordinary rules of civil procedure. The variance in the procedure in the special
civil action of partition and in the ordinary civil action of rescission precludes their joinder in one
complaint or their being tried in a single proceeding to avoid confusion in determining what rules shall
govern the conduct of the proceedings as well as in the determination of the presence of requisite
elements of each particular cause of action.”

 Nevertheless, misjoinder of causes of action is not a ground for dismissal. Indeed, the courts have the
power, acting upon the motion of a party to the case or sua sponte, to order the severance of the
misjoined cause of action to be proceeded with separately. However, if there is no objection to the
improper joinder or the court did not motu proprio direct a severance, then there exists no bar in the
simultaneous adjudication of all the erroneously joined causes of action. [G.R. No. 182435, August 13,
2012]

 Where there are several claims or causes of action between the same or different parties embodied in the
same complaint, the amount of the demand shall be the totality of the claims in all causes of action,
irrespective of whether the causes of action arose out of the same or different transactions.”

 The causes of action in favor of two or more plaintiffs or against two or more defendants should arise
out of the same transaction or series of transactions and there should be a common question of law or
fact as provided in Sec. 6, Rule 3. (The totality Rule) (Flores v. Mallare-Philips, L-66620, September 24,
1986).

RULE 3. PARTIES TO CIVIL ACTIONS

Real Party in interest. — A real party in interest is the party who stands to be benefited or injured by the
judgment in the suit. (Sec. 2, Rule 3)

General Rule: Unless otherwise authorized by law or these Rules, every action must be prosecuted and
defended in the name of the real party in interest.

Exception: An exception to the rule that every action must be prosecuted or defended in the name of the real
party in interest is in the case of representatives as parties (Rule 3, Section 3).
 To be properly considered as such, the party must have a real, actual, material, or substantial interest
in the subject matter of the action, NOT a mere expectancy or a future, contingent, subordinate, or
consequential interest. (Samahan Ng Magsasaka At Mangingisda Ng Sitio Naswe, Inc. [SAMMANA],
Represented By Rogelio A. Commendador, President, Vs. Tomas Tan, G.R. No. 196028, April 18, 2016)

Q: What is the meaning of “interest”?

A: Interest within the meaning of the Rules of Court means material interest or an interest in issue to be affected
by the decree or judgment of the case, as distinguished from mere curiosity about the question involved. One
having no material interest cannot invoke the jurisdiction of the court as the plaintiff in an action. When the
plaintiff is not the real party in interest, the case is dismissible on the ground of lack of cause of action. (Andy
Ang V. Pacunio, et al, G.R. No. 208928, July 08, 2015]
Failure to Include Real Party in Interested

 [I]f a suit is not brought in the name of or against the real party in interest, a motion to dismiss may be
filed on the ground that the complaint states no cause of action." However, [the dismissal on this ground
entails] an examination of whether the parties presently pleaded are interested in the outcome of the
litigation, and not whether all persons interested in such outcome are actually pleaded. The latter query
is relevant in discussions concerning indispensable and necessary parties, but not in discussions
concerning real parties in interest. Both indispensable and necessary parties are considered as real

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 parties in interest, since both classes of parties stand to be benefited or injured by the judgment of the
suit. (Spouses Lausv. Optimum Security Services, Inc., G.R. No. 208343, February 3, 2016)

Real party in interest applies both to the plaintiff and defendant. The suit may be dismissed if neither of them is
a Real party in interest

Indispensable parties
 Those without whom no final determination can be had of an action; they must be joined under all
conditions (Sec. 7, Rule 3)

 An indispensable party is a party who has such an interest in the controversy or subject matter that a
final adjudication cannot be made, in his absence, without injuring or affecting that interest, a party who
has not only an interest in the subject matter of the controversy, but also has an interest of such nature
that a final decree cannot be made without affecting his interest or leaving the controversy in such a
condition that its final determination may be wholly inconsistent with equity and good conscience. It
has also been considered that an indispensable party is a person in whose absence there cannot be a
determination between the parties already before the court which is effective, complete, or equitable.
Further, an indispensable party is one who must be included in an action before it may properly go
forward. (Caravan Travel and Tours International, Inc. v. Abejar)

Failure to implead indispensable party-litigant

 Absence of an indispensable party renders all subsequent actions of the court null and void for want of
authority to act, not only as to the absent parties but even to those present. The failure to implead an
indispensable party is not a mere procedural matter. Rather, it brings to fore the right of a disregarded
party to its constitutional rights to due process. (David v. Paragas, Jr., G.R. No. 176973, February 25, 2015)

 The nature of the solidary obligation under the surety does not make one an indispensable party. An
indispensable party is a party-in-interest without whom no final determination can be had of an action,
and who shall be joined mandatorily either as plaintiffs or defendants. The presence of indispensable
parties is necessary to vest the court with jurisdiction, thus, without their presence to a suit or
proceeding, the judgment of a court cannot attain real finality. The absence of an indispensable party
renders all subsequent actions of the court null and void for want of authority to act, not only as to the
absent parties but even as to those present. (Living @ Sense, Inc. Vs. Malayan Insurance Company, Inc. G.R.
No. 193753. September 26, 2012)

Purpose of the Rule

The purpose of the rules on joinder of indispensable parties is a complete determination of all issues not
only between the parties themselves, but also as regards other persons who may be affected by the judgment. A
decision valid on its face cannot attain real finality where there is want of indispensable parties. (Florete, Jr. v.
Florete, G.R. NO. 174909 & 177275, January 20, 2016)

Burden of procuring indispensable parties lies with the plaintiff

 The burden of procuring the presence of all indispensable parties is on the plaintiff. The evident purpose
of the rule is to prevent the multiplicity of suits by requiring the person arresting a right against the
defendant to include with him, either as co-plaintiffs or as co-defendants, all persons standing in the
same position, so that the whole matter in dispute may be determined once and for all in one litigation.
(G.R. No. 174909 & 177275, January 20, 2016)

Effects of non-joinder of indispensable parties

The general rule with reference to the making of parties in a civil action requires the joinder of all
indispensable parties under any and all conditions, their presence being a sine qua non of the exercise of judicial
power. For this reason, our Supreme Court has held that when it appears of record that there are other persons
interested in the subject matter of the litigation, who are not made parties to the action, it is the duty of the court
1.) to suspend the trial until such parties are made either plaintiffs or defendants. xxx 2.) Where the petition
failed to join as party defendant the person interested in sustaining the proceeding in the court, the same should
be dismissed. 3.) When an indispensable party is not before the court, the action should be dismissed.

 Settled is the rule that joinder of indispensable parties is compulsory being a sine qua non for the
exercise of judicial power, and, it is precisely “when an indispensable party is not before the court the
action should be dismissed” for such absence renders all subsequent actions of the court null and void
for want of authority to act, not only as to the absent parties by even as to those present. (Guy v. Guy,
G.R. No. 189486, September 05, 2012)

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Joinder of Parties

Elements

a) There must be a right to relief in respect to or arising from the same transaction or series of transaction;
b) There is a question of fact or law common to all the plaintiffs or defendants; and

Such joinder is not otherwise proscribed by the provisions of the Rules on jurisdiction and venue (Sec. 6, Rule 3).

Requisites for joinder of parties:

a. The party joining the causes of action shall comply with the rules on joinder of parties;

b. The joinder shall not include special civil actions or actions governed by special rules;

c. Where the causes of action are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the Regional Trial Court provided that:

1.) one of the causes of action falls within the jurisdiction of said court and,
2.) the venue lies therein; and

d. Where the claims in all the causes action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction.

Necessary Parties
Are person who are not indispensable but who ought to be joined as a party if complete relief is to be
accorded as to those already parties, or for a complete determination or settlement of the claim subject of the
action; may or may not be joined (i.e. joint debtor is a necessary party in a suit against his co-debtor) (Rule 3, Sec.
8).
A necessary party's presence is not imperative, and his or her absence is not debilitating. Nevertheless, it
is preferred that they be included in order that relief may be complete. (Caravan Travel and Tours International,
Inc. v. Abejar, G.R. No. 170631, February 10, 2016)

Indigent Parties
A party may be authorized to litigate his action, claim or defense as an indigent if the court, upon an ex
parte application and hearing, is satisfied that the party is one who has no money or property sufficient and
available for food, shelter and basic necessities for himself and his family. (Sec. 21, Rule 3)

Requisites:

1) Party must have a gross income and that of their immediate family do not exceed an amount double the
monthly minimum wage of an employee; and
2) Party do not own real property with a fair market value as stated in the current tax declaration of more
than P300,000.00.

Effects of declaration of indigency:

Such authority shall include an exemption from payment of docket and other lawful fees, and of
transcripts of stenographic notes which the court may order to be furnished him. The amount of the docket and
other lawful fees which the indigent was exempted from paying shall be a lien on any judgment rendered in the
case favorable to the indigent, unless the court otherwise provides. (Rule 3, Sec. 21)

Grant of the application mandatory if requisites are present:

If the applicant for exemption meets the salary and property requirements under Section 19 of Rule 141,
then the grant of the application is mandatory.

On the other hand, when the application does not satisfy one or both requirements, then the application
should not be denied outright; instead, the court should apply the "indigency test" under Section 21 of Rule 3
and use its sound discretion in determining the merits of the prayer for exemption (Pangcatan v. Maghuyop, G.R.
Nos. 194412 & 194566, November 16, 2016)

Alternative Defendants
Where the plaintiff is uncertain against who of several persons he is entitled to relief, he may join any or
all of them as defendants in the alternative, although a right to relief against one may be inconsistent with a
right to relief against the other. (Rule 3, Section 13)

Class Suit
A suit brought by or defended by a representative member or members of a large group of persons on behalf of
all the members of the group. (Rule 3, Section 12)

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 A class suit is a specie of a representative suit insofar as the persons who institute it represent the entire
class of persons who have the same interest or who suffered the same injury. However, unlike representative
suits, the persons instituting a class suit are themselves real parties in interest and are not suing merely as
representatives. (Segovia v. Climate Change Commission, G. R. No. 211010, March 7, 2017) A class suit can prosper
only:

1) "There is a clear legal basis for the representative suit;

2) There are actual concerns based squarely upon an existing legal right;
3) There is no possibility of any countervailing interests existing within the population represented or
those that are yet to be born; and
4) There is an absolute necessity for such standing because there is a threat or catastrophe so imminent that
an immediate protective measure is necessary.”

A class suit is a representative suit insofar as the persons who institute it represent the entire class of
persons who have the same interest or who suffered the same injury. However, unlike representative suits, the
persons instituting a class suit are not suing merely as representatives. They themselves are real parties in
interest directly injured by the acts or omissions complained of. There is a common cause of action in a class.
The group collectively — not individually — enjoys the right sought to be enforced.”

The same concern in representative suits regarding res judicata applies in class suits. The persons bringing
the suit may not be truly representative of all the interests of the class they purport to represent, but any
decision issued will bind all members of the class.(Paje v. Casiño, G.R. Nos. 207257, 207276, 207282, 207366,
February 3, 2015)

In case of conflict, no class suit:

Where the interests of the plaintiffs and the other members of the class they seek to represent are diametrically
opposed, the class suit will not prosper. (Banda v. Ermita, G.R. No. 166620, April 20, 2010)

Legal capacity is a requirement in class suit:

The party bringing the class suit must have legal capacity to do so. (Chinese Flour Importers Assoc. v.
Price Stabilization Board, 9 Phil. 461).

Representative as parties

A person acting in a fiduciary capacity (i.e. trustees of an express trust, guardians, executors or
administrators). In this case, the rule requires that the name of the beneficiary shall be included in the title of the
case and shall be deemed as the real party in interest (Rule 3, Sec. 3).

When an action is prosecuted or defended by a representative, that representative is not and does not
become the real party in interest. The person represented is deemed the real party in interest. The representative
remains to be a third party to the action instituted on behalf of another. (Resident Maritime Mammals of the
Protected Seascape Tañon Strait v. Reyes, G. R. No. 180771 & 181527, April 21, 2015)

Suits against entities without juridical personality

Under Section 1 of Rule 3, only natural or juridical persons or entities authorized by law may be parties in a
civil action. However, an entity without juridical personality be sued as a defendant when it has entered into a
transaction with the plaintiff.

Two or more persons not organized as an entity with juridical personality to enter into a transaction
may be sued under the name by which they are generally or commonly known but they cannot sue under
such name. “

In the answer of such defendant, the names and addresses of the persons composing said entity must all
be revealed. “(Rule 3, Sec. 15)

In Ocampo v. Mendoza, the Supreme Court held that, for failing to show that it is a juridical entity,
endowed by law with the capacity to bring suits in its own name, PISTON is devoid of any legal capacity to
institute this action. (G.R. No. 190431, January 31, 2017)

Effect of death of party-litigant

Whenever a party to a pending action dies AND the claim is not thereby extinguished, it shall be the
duty of his counsel:

1) To inform the court within 30 days after such death of the fact thereof; and

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 2) To give the name and address of the deceased party's legal representative/s. (Rule 16, Sec. 3)

Failure to comply is a ground for disciplinary action:

Failure to comply by counsel shall be a ground for disciplinary action.

Duty of the counsel to inform the court applies on appeal

The duty of counsel also applies to death of a party in cases pending appeal (Riviera Filipina v. CA, G.R.
No. 117355, April 5, 2002).

When a party to a pending action dies and the claim is not extinguished, the Rules of Court require a
substitution of the deceased in accordance with Section 16 of Rule 3.

The rule on the substitution of parties was crafted to protect every party's right to due process. The
estate of the deceased party will continue to be properly represented in the suit through the duly appointed
legal representative. Moreover, no adjudication can be made against the successor of the deceased if the
fundamental right to a day in court is denied.”

Thus, in all proceedings, the legal representatives must appear to protect the interests of the deceased.
(Saguinsin v. Liban, G.R. No. 189312, July 11, 2016)

The purpose behind the rule on substitution is the protection of the right of every party to due process.
It is to ensure that the deceased party would continue to be properly represented in the suit through the duly
appointed legal representative of his estate. Non-compliance with the rule on substitution would render the
proceedings and the judgment of the trial court infirm because the court acquires no jurisdiction over the
persons of the legal representatives or of the heirs on whom the trial and the judgment would be binding.
(Cardenas v. Heirs of Spouses Aguilar, G.R. No. 1910749, March 2, 2016)

RULE 4. VENUE

Venue distinguished from Jurisdiction

VENUE JURISDICTION
a. Venue is the place where the case is to be a. Jurisdiction is the authority to hear and
heard; determine a case;
b. Jurisdiction is a matter of substantive
b. Venue is a matter of procedural law;
law;
c. Venue establishes a relation between
c. Jurisdiction establishes a relation between
plaintiff and defendant, or petitioner and
the court and the subject matter;
respondent; and,
d. Venue may be conferred by the act or d. Jurisdiction is fixed by law and cannot be
agreement of the parties. conferred by the parties;

Venue of real actions. — In the proper court which has jurisdiction over the area wherein the real property
involved, or a portion thereof, is situated.”

Forcible entry and detainer actions shall be commenced and tried in the municipal trial court of the
municipality or city wherein the real property involved, or a portion thereof, is situated.” (Sec. 1, Rule 4)

As an exception, the parties, through a written instrument, may either introduce another venue where
actions arising from such instrument may be filed, or restrict the filing of said actions in a certain exclusive
venue. (Briones v. Court of Appeals, G.R. No. 204444, January 14, 2015)

Venue of personal actions. — (Sec. 2, Rule 4)

1) Where the plaintiff or any of the principal plaintiffs resides;

2) Where the defendant or any of the principal defendants resides; or
3) In the case of non-resident defendants, where the non-resident defendant may be found.

NOTE: All of the abovementioned venues shall be at the election of the plaintiff.

The foregoing provision is not restrictive, it is merely permissive as manifested by the use of the term
"may." Moreover, the clear language of the ensuing provision of Section 4 expressly allows the venue of
personal actions to be subjected to the stipulation of the parties. Clearly, stipulation on venue is permitted and
must be recognized for as long as it does not defeat the purpose of the Rules which primarily aims for the
convenience of the parties to the dispute. (Radiowealth Finance Co., Inc. v. Nolasco, G.R. No. 227146, November
14, 2016)
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Venue of actions against non-residents (Rule 4, Section 3)

If the non-resident defendant CAN be found in the Philippines:

1) Personal actions shall be commenced where the plaintiff resides; or

2) Real actions shall be commenced where the property is located.
3)

If the nonresident defendant CANNOT be found in the Philippines:

An action may be commenced only if it involves:

1) Personal status of the plaintiff: venue is where the plaintiff resides;

2) Property of the defendant located in the Philippines: venue shall be where the property or a portion thereof
is situated.

When there is more than one defendant/plaintiff in the case, the residences of the principal parties
should be the basis for determining the proper venue (Regalado, 2010).

When the rules on venue do not apply (Rule 4, Section 4)

The rules on venue shall NOT apply:

1) In those cases where a specific rule or law provides otherwise;
2) Where the parties have validly agreed in writing before the filing of the action on the exclusive venue
thereof (Principle of Stipulations on Venue) (Sec. 4).

Requisites for venue to be exclusive:

1) There is a valid written agreement;
2) Executed by the parties before the filing of the action; and
3) Venue is of exclusive or restrictive nature (qualifying words such as only, solely, exclusively in this
court, in no other place, to the exclusion of must be used).

Requisites for venue agreement to be valid: (Rule 4, Section 4)

1) In writing; and
2) Executed by the parties before the filing of the action.

Effects of stipulations on venue

In cases where the complaint assails only the terms, conditions, and/or coverage of a written instrument
and not its validity, the exclusive venue stipulation contained therein shall still be binding on the parties, and
thus, the complaint may be properly dismissed on the ground of improper venue. Conversely, therefore, a
complaint directly assailing the validity of the written instrument itself should not be bound by the exclusive
venue stipulation contained therein and should be filed in accordance with the general rules on venue. To be
sure, it would be inherently consistent for a complaint of this nature to recognize the exclusive venue stipulation
when it, in fact, precisely assails the validity of the instrument in which such stipulation is contained.” (Briones
v. CA, GR. No. 204444, January 14, 2015)

Effect of absence of exclusive words

In the absence of qualifying or restrictive words, such as "exclusively," "waiving for this purpose any
other venue," "shall only" preceding the designation of venue, "to the exclusion of the other courts," or words of
similar import, the stipulation should be deemed as merely an agreement on an additional forum, not as
limiting venue to the specified place. (Briones v. CA, GR. No. 204444, January 14, 2015)
In Radiowealth Finance Co, Inc. v. Nolasco, the Supreme Court held that the RTC carelessly interfered
with the parties' agreement on the venue of their dispute and interrupted what could have been an expeditious
flow of the proceeding. To reiterate, the choice of venue is a matter addressed to the sound judgment of the
parties based on considerations personal to them, i.e., convenience. It is only the parties who may raise objection
on the same. Absent such protest, it is an error for the RTC to decide that the venue was improperly laid as it is
tantamount to needlessly interfering to a mutually agreed term. (G.R. No. 227146, November 14, 2016)

RULE 5. UNIFORM PROCEDURE IN TRIAL COURTS

The procedure in the Municipal Trial Courts shall be the same as in the Regional Trial Courts, except (a)
where a particular provision expressly or impliedly applies only to either of said courts, or (b) in civil cases
governed by the Rule on Summary Procedure.

RULE 6. PLEADINGS

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 Pleadings are the written statements of the respective claims and defenses of the parties submitted to the
court for appropriate judgment.

Kinds Of Pleadings

a. Complaint. — A pleading alleging the plaintiff's cause or causes of action. The names and
residences of the plaintiff and defendant must be stated in the complaint. (Sec. 3, Rule 6)

b. Answer. — A pleading in which a defending party sets forth his defenses. (Sec. 4, Rule 6) The
defenses of a party are alleged in the answer to the pleading asserting a claim against him.

In case the defendant failed to file his answer, the court shall render judgment, either motu proprio or
upon plaintiff's motion, based solely on the facts alleged in the complaint and limited to what is prayed for. The
failure of the defendant to timely file his answer and to controvert the claim against him constitutes his
acquiescence to every allegation stated in the complaint. (Fairland Knitcraft Corp. v. Po, G.R. No. 217694, January
27, 2016)

Counterclaim. – Any claim which a defending party may have against an opposing party. (Sec. 6)

Nature of a counterclaim
A counterclaim is in the nature of a cross complaint such that it must be answered within 10 days from
service. It is a cause of action against plaintiff.

A counterclaim is compulsory if:

(a) it arises out of or is necessarily connected with the transaction or occurrence which is the subject
matter of the opposing party's claim;
(b) it does not require for its adjudication the presence of third parties of whom the court cannot
acquire jurisdiction; and
(c) the court has jurisdiction to entertain the claim both as to its amount and nature, except that in an
original action before the RTC, the counterclaim may be considered compulsory regardless of
the amount. (Metropolitan Bank and Trust Co. v. CPR Promotions and Marketing, Inc., G.R. No.
200567, June 22, 2015)

To determine whether a counterclaim is compulsory or permissive, we have devised the following

tests: (a) Are the issues of fact and law raised by the claim and by the counterclaim largely the same? (b)
Would res judicata bar a subsequent suit on defendants' claims, absent the compulsory counterclaim rule?
(c) Will substantially the same evidence support or refute plaintiffs' claim as well as the defendants'
counterclaim? and (d) Is there any logical relation between the claim and the counterclaim? A positive answer
to all four questions would indicate that the counterclaim is compulsory. (Alba, Jr. v. Malapajo, G.R. No. 198752,
January 13, 2016)

It is elementary that a defending party's compulsory counterclaim should be interposed at the time
he files his Answer, and that failure to do so shall effectively bar such claim. (G.R. No. 200567, June 22, 2015)

Exceptions:
1) If it is a counterclaim which either matured or was acquired by a party after serving his answer. In this
case, it may be pleaded by filing a supplemental answer or pleading before judgment.

2) When a pleader fails to set-up a counterclaim through oversight, inadvertence, excusable negligence, or
when justice requires, he may, by leave of court, set-up the counterclaim by amendment of the pleadings
before judgment (Sec. 10, Rule 11).

A Counterclaim is Permissive, if:

It is a counterclaim which does not arise out of or is necessarily connected with the subject matter of
the opposing party's claim. It is not barred even if it is not set up in the original action.

A plaintiff who fails or chooses not to answer a compulsory counterclaim may not be declared in default
principally because the issues raised in the counterclaim are deemed automatically joined by the allegations of
the complaint (Gojo v. Goyala, G.R. No. 26768, Oct. 30, 1970).

Cross-claim. — A cross-claim is any claim by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or of a counterclaim therein. Such cross-claim
may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or
part of a claim asserted in the action against the cross-claimant. (Sec. 8)

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Counter-counterclaims and counter-crossclaims. — A counter-claim may be asserted against an original
counter-claimant.

A cross-claim may also be filed against an original cross-claimant.

Reply. — A reply is a pleading, the office or function of which is to deny, or allege facts in denial or avoidance
of new matters alleged by way of defense in the answer and thereby join or make issue as to such new matters.
If a party does not file such reply, all the new matters alleged in the answer are deemed controverted.

If the plaintiff wishes to interpose any claims arising out of the new matters so alleged, such claims shall be set
forth in an amended or supplemental complaint.

Third, (fourth, etc.)—party complaint. — A third (fourth, etc.) — party complaint is a claim that a defending
party may, with leave of court, file against a person not a party to the action, called the third (fourth, etc.) —
party defendant for contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim.
(Sec. 11)

Answer to third (fourth, etc.)—party complaint. — A third (fourth, etc.) — party defendant may allege in his
answer his defenses, counterclaims or cross-claims, including such defenses that the third (fourth, etc.) — party
plaintiff may have against the original plaintiff's claim. In proper cases, he may also assert a counterclaim
against the original plaintiff in respect of the latter's claim against the third-party plaintiff. (Sec. 13)

RULE 7. PARTS OF A PLEADING

Caption. — The caption sets forth the name of the court, the title of the action, and the docket number if
assigned.
The title of the action indicates the names of the parties. They shall all be named in the original complaint or
petition; but in subsequent pleadings, it shall be sufficient if the name of the first party on each side be stated
with an appropriate indication when there are other parties. Their respective participation in the case shall be
indicated. (Sec. 1)

Signature and addresses – Every pleading must be signed by the party or counsel representing him, stating in
either case his address which should not be a post office box.

The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his
knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.

An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such deficiency
to be remedied if it shall appear that the same was due to mere inadvertence and not intended for delay.
Counsel who deliberately files an unsigned pleading, or signs a pleading in violation of this Rule, or alleges
scandalous or indecent matter therein, or fails promptly report to the court a change of his address, shall be
subject to appropriate disciplinary action. (Rule 7, Sec.3)

Verification – Except when otherwise specifically required by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit .

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are
true and correct of his knowledge and belief.

A pleading required to be verified which contains a verification based on "information and belief", or upon
"knowledge, information and belief", or lacks a proper verification, shall be treated as an unsigned pleading.

Certification against forum shopping. —

The plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading
asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith:
1) that he has not theretofore commenced any action or filed any claim involving the same issues in
any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other
action or claim is pending therein;
2) if there is such other pending action or claim, a complete statement of the present status thereof;
and
3) if he should thereafter learn that the same or similar action or claim has been filed or is pending,
he shall report that fact within five (5) days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.

In Chua v. People, (G.R. No. 216146, August 24, 2016, citing Fuji Television v. Espiritu), the Supreme Court
distinguished the effect of non-compliance with the requirement of verification and non-forum shopping, to wit:

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 VERIFICATION NON-FORUM SHOPPING
Non[-]compliance therewith or a defect Non-compliance therewith or a defect
therein does not necessarily render the therein, unlike in verification, is
pleading fatally defective. The court may generally not curable by its subsequent
order its submission or correction or act submission or correction thereof, unless
on the pleading if the attending there is a need to relax the Rule on the
circumstances are such that strict ground of "substantial compliance" or
compliance with the Rule may be presence of "special circumstances or
dispensed with in order that the ends of compelling reasons."
justice may be served thereby.
The certification against forum shopping
must be signed by all the plaintiffs or
petitioners in a case; otherwise, those
Verification is deemed substantially
who did not sign will be dropped as
complied with when one who has ample
parties to the case. Under reasonable or
knowledge to swear to the truth of the
justifiable circumstances, however, as
allegations in the complaint or petition
when all the plaintiffs or petitioners
signs the verification, and when matters
share a common interest and invoke a
alleged in the petition have been made in
common cause of action or defense, the
good faith or are true and correct.
signature of only one of them in the
certification against forum shopping
substantially complies with the Rule.

 In the case of natural persons, the rule requires the parties themselves to sign the certification against
forum shopping. The reason for such requirement is that the petitioner himself knows better than
anyone else whether a separate case has been filed or pending which involves substantially the same
issues. (Buisan v. Commission on Audit, G.R. No. January 31, 2017)

 The requirement that a petitioner or principal party should sign the certificate of nonforum shopping
applies even to corporations, considering that the mandatory directives of the Rules of Court make no
distinction between natural and juridical persons.

 A corporation, however, exercises its powers through its board of directors and/or its duly authorized
officers and agents. Physical acts, like the signing of documents, can be performed only by natural
persons duly authorized for the purpose by corporate by-laws or by a specific act of the board of
directors (Pascual and Santos, Inc. v. The Members of the Tramo Wakas Neighborhood Association, Inc., G.R.
No. 144880, November 17, 2004).

 Objections relating to non-compliance with the verification and certification of non-forum shopping
should be raised in the proceedings below, and not for the first time on appeal. (GSIS Family Bank v. BPI
Family Bank, G.R. No. 175278, September 23, 2015)

 The application of the rules must be the general rule, and the suspension or even mere relaxation of its
application, is the exception. This Court may go beyond the strict application of the rules only on
exceptional cases when there is truly substantial compliance with the rule. (Philippine Numismatic v.
Aquino, G.R. No. 206617, January 30, 2017)

Effect of signing by a person not authorized to sign

In Tamondong v. Court of Appeals, the Court categorically stated that “if a complaint is filed for and in
behalf of the plaintiff [by one] who is not authorized to do so, the complaint is not deemed filed. An
unauthorized complaint does not produce legal effect. Hence, the court should dismiss the complaint on the
ground that it has no jurisdiction over the complaint and the plaintiff. This ruling was reiterated in Cosco v.
Kemper, where there Court went on to say that “in order for the court top have authority to dispose of the case
on the merits, it must jurisdiction over the subject matter and the parties. Courts acquire jurisdiction over the
plaintiffs upon the filing of the complaint, and to be bound by a decision, a party should first be subjected to the
court's jurisdiction. The courts could not have delved into the very merits of the case, because legally, there was
no complaint to speak of. The court's jurisdiction cannot be deemed to have been invoked at all. (Atty. Fe Q.
Palmiano-Salvador Vs. Constantino Angeles, Substituted By Luz G. Angeles, G.R. No. 171219, September 3 2012)

Substantial Compliance

The verification requirement is deemed substantially complied with when a person who has sufficient
knowledge to swear to the truth of the allegations in the complaint or petition signs the verification; and matters
alleged therein have been made in good faith or are true and correct. Thus, there is substantial compliance if at

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least one of the petitioners makes a proper verification.”

On the other hand, as a rule, the certificate against forum shopping must be signed by all plaintiffs or
petitioners; otherwise, those who did not sign will be dropped as parties to the case. Under reasonable or
justifiable situations, such as when the plaintiffs or petitioners share a common interest and invoke a common
cause of action or defense, the signature of one of them in the certificate against forum shopping is considered
substantial compliance with the rules. (Bacolor v. VL Makabali Hospital, Inc, G.R. No. 204325, April 18, 2016)

RULE 8. MANNER OF MAKING ALLEGATIONS IN PLEADINGS

In general. — Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement
of the ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the
statement of mere evidentiary facts.

If a defense relied on is based on law, the pertinent provisions thereof and their applicability to him shall be
clearly and concisely stated. (Sec. 1, Rule 8)

Alternative causes of action or defenses. — A party may set forth two or more statements of a claim or defense
alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or
defenses. When two or more statements are made in the alternative and one of them if made independently
would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative
statements. (Section 2, Rule 8. )

Conditions precedent. — In any pleading a general averment of the performance or occurrence of all conditions
precedent shall be sufficient. (Section 3, Rule 8)

Facts showing the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a
representative capacity or the legal existence of an organized association of person that is made a party, must be
averred. A party desiring to raise an issue as to the legal 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 include such supporting
particulars as are peculiarly within the pleader's knowledge. (Sec. 4, Rule 8)

Fraud, mistake, condition of the mind. — In all averments of fraud or mistake the circumstances constituting
fraud or mistake must be stated with particularity. Malice, intent, knowledge, or other condition of the mind of
a person may be averred generally. (Sec. 5, Rule 8)

Judgment. — In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial

tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter
showing jurisdiction to render it. (Sec. 6, Rule 8)

Action or defense based on document. — Whenever an action or defense is based upon a written instrument or
document, the substance of such instrument or document shall be set forth in the pleading, and the original or a
copy thereof shall be attached to the pleading as an exhibit, which shall be deemed to be a part of the pleading,
or said copy may with like effect be set forth in the pleading. (Sec. 7, Rule 8)

Official document or act. — In pleading an official document or official act, it is sufficient to aver that the
document was issued or the act done in compliance with law. (Sec. 9, Rule 8)

Specific denial. ( one with supporting particulars)— A defendant must specify each material allegation of fact
the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters
upon which he relies to support his denial. Where a defendant desires to deny only a part of an averment, he
shall specify so much of it as is true and material and shall deny only the remainder. Where a defendant is
without knowledge or information sufficient to form a belief as to the truth of a material averment made to the
complaint, he shall so state, and this shall have the effect of a denial. (Sec. 10, Rule 8)

Effect of Failure to make specific denials

The genuineness and due execution of the instrument shall be deemed admitted.

Exceptions:
Unless the adverse party, under oath specifically denies them, and sets forth what he claims to be the
facts, but the requirement of an oath does not apply 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. (Rule 8,
Section 8)

RULE 9. EFFECT OF FAILURE TO PLEAD

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General Rule:
Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived.
(Sec. 1, Rule 9)

Exceptions:
When it appears from the pleadings or evidence on record
1) That the court lack jurisdiction over the subject matter;
2) Litis pendentia between same parties for the same cause;
3) Res judicata;
4) Action barred by statute of limitations.

The court shall dismiss the claim. (Sec. 1, Rule 9)

 The exception to the basic rule mentioned operates on the principle of estoppel by laches — whereby a
party may be barred by laches from invoking the lack of jurisdiction at a late hour for the purpose of
annulling everything done in the case with the active participation of said party invoking the plea.
(Cabrera v. Spouses Clarin, G.R. No. 215640, November 28, 2016, citing Tijam v. Sibonghanoy)

Kinds of Defenses — Defenses may either be negative or affirmative.

Negative Defenses - The specific denial (Sec. 10, Rule 9) of the material fact/s alleged in the pleading of the
claimant essential to his cause/s of action. (Sec. 5);

Three Modes of Denial

1) Absolute denial – The defending party specifying each material allegation of fact the truth of which he
does not admit and, whenever practicable, setting forth the substance of the matters upon which he
relies to support his denial.

2) Partial denial – The defending party denies only a part of an averment, and the denial is done by the
defending party specifying so much of the material allegation of ultimate facts as is true and material
and denying only the remainder.

3) Disavowal of knowledge – The defending party shall state that he is without knowledge or
information sufficient to form a belief as to the truth of a material averment made in the complaint by
stating so in the answer.

 Any material averment in the complaint not so specifically denied are deemed admitted except an
averment of the amount of unliquidated damages.(Fernando Medical Enterprises, Inc. v. Wesleyan
University Philippines, Inc.)

NEGATIVE PREGNANT
A negative pregnant is a form of negative expression which carries with it an affirmation or at least an
implication of some kind favorable to the adverse party. It is a denial pregnant with an admission of the
substantial facts alleged in the pleading. Where a fact is alleged with qualifying or modifying language and
the words of the allegation as so qualified or modified are literally denied, it has been held that the
qualifying circumstances alone are denied while the fact itself is admitted.

 If an allegation is not specifically denied or the denial is a negative pregnant, the allegation is
deemed admitted."

 Where a fact is alleged with some qualifying or modifying language, and the denial is conjunctive, a
'negative pregnant' exists, and only the qualification or modification is denied, while the fact itself is
admitted."

 A denial in the form of a negative pregnant is an ambiguous pleading, since it cannot be ascertained
whether it is the fact or only the qualification that is intended to be denied." (Serrano Mahilum v.
Spouses Ilano, G.R. No. 197923, June 22, 2015)

Affirmative defense – is an allegation of a new matter which, while hypothetically admitting the material
allegations in the pleading of the claimant, would nevertheless prevent or bar recovery by him.

Kinds of affirmative defenses:

Affirmative defenses include fraud, statute of limitations, release, payment, illegality, statute of frauds, estoppel,
former recovery, discharge in bankruptcy and any other matter by way of confession and avoidance. (Sec. 5[b])

Failure to plead compulsory counterclaim or cross-claim

A compulsory counterclaim, or a cross-claim, not set up shall be barred. (Sec. 2, Rule 9)

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Exception: If the counterclaim or cross-claim matured or was acquired by a party after serving his answer, he
may, with the permission of the court, be allowed to present his counterclaim or cross-claim by filing a
supplemental answer or pleading before judgment (Rule 11, Sec. 9).

When a pleader fails to set up a counterclaim or a cross-claim through oversight, inadvertence, or excusable
neglect, or when justice requires, he may, by leave of court, set up the counterclaim or cross-claim by
amendment before judgment. (Sec. 10, Rule 11).

DEFAULT

If the defending party fails to answer within the time allowed therefor, the court shall, upon motion of the
claiming party with notice to the defending party, and proof of such failure, declare the defending party in
default. Thereupon, the court shall proceed to render judgment granting the claimant such relief as his pleading
may warrant, unless the court in its discretion requires the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court. (Rule 9, Sec. 3)

Effect of order of default. — A party in default shall be entitled to notice of subsequent proceedings but not to
take part in the trial. (Rule 9, Sec. 3(a))

Relief from order of default. — A party declared in default may at any time after notice thereof and before
judgment file a motion under oath to set aside the order of default upon proper showing that his failure to
answer was due to fraud, accident, mistake or excusable negligence and that he has a meritorious defense. In
such case, the order of default may be set aside on such terms and conditions as the judge may impose in the
interest of justice. (Rule 9, Sec. 3(b))

 The remedies of the motion to set aside order of default, motion for new trial, and petition for relief from
judgment are mutually exclusive, not alternative or cumulative. This is to compel defendants to remedy
their default at the earliest possible opportunity. Depending on when the default was discovered and
whether a default judgment was already rendered, a defendant declared in default may avail of only
one of the three remedies.”

 Thus, if a defendant discovers his or her default before the trial court renders judgment, he or she shall
file a motion to set aside order of default. If this motion to set aside order of default is denied, the
defendant declared in default cannot await the rendition of judgment, and he or she cannot file a motion
for new trial before the judgment becomes final and executory, or a petition for relief from judgment
after the judgment becomes final and executory” (Lui Enterprises, In. v. Zuellig Pharma Corp., G.R. No.
193494, March 12, 2014)

Effect of partial default. — When a pleading asserting a claim states a common cause of action against several
defending parties, some of whom answer and the others fail to do so, the court shall try the case against all upon
the answers thus filed and render judgment upon the evidence presented. (Rule 9, Sec. 3(c))

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. (Rule 9, Sec. 3(d))

 The raison d'être in limiting the extent of relief that may be granted is that it cannot be presumed that
the defendant would not file an Answer and allow himself to be declared in default had he known that
the plaintiff will be accorded a relief greater than or different in kind from that sought in the Complaint.
38 No doubt, the reason behind Section 3 (d), Rule 9 of the Rules of Court is to safeguard defendant's
right to due process against unforeseen and arbitrarily issued judgment. This, to the mind of this Court,
is akin to the very essence of due process. It embodies "the sporting idea of fair play" 39 and forbids the
grant of relief on matters where the defendant was not given the opportunity to be heard thereon.
(Leticia Diona, rep. By her attorney-in-fact, Marcelina Diona Vs. Romeo A. Balangue, Sonny A. Balangue,
Reynaldo A. Balangue, and Esteban A. Balangue, Jr. G.R. No. 173559. January 7, 2013)

Where no defaults allowed. — If the defending party in an action for annulment or declaration of nullity of
marriage or for legal separation fails to answer, the court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists, and if there is no collusion, to intervene for the State in
order to see to it that the evidence submitted is not fabricated. (Rule 9, Sec. 3(e))

RULE 10. AMENDMENTS

Pleadings may be amended by adding or striking out an allegation or the name of any party, or by
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correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other
respect, so that the actual merits of the controversy may speedily be determined, without regard to
technicalities, and in the most expeditious and inexpensive manner. (Rule 10, Section 1)

Amendments as a matter of right. — A party may amend his pleading once as a matter of right at any time
before a responsive pleading is served or, in the case of a reply, at any time within ten (10) days after it is
served.

 The right of a plaintiff to amend his pleading once as a matter of right before a responsive pleading is
served, has been held to be one which the court should always grant, otherwise mandamus will lie
against it since it is a ministerial duty of the court to accept amendment as a matter of right. (Ong Peng v.
Custodio, L-14911, March 25, 1961).

 If the purpose of the amendment is to confer jurisdiction upon the court then the court cannot admit the
amended complaint. Not having acquired jurisdiction over the case by the filing of the original
complaint, the lower court has neither the power nor the jurisdiction to act on the motion for the
admission of the amended complaint, much less to allow such amendment, since it is elementary that
the court must first acquire jurisdiction over the case in order to act validly therein. (Rosario v.
Carangdang, G.R. No. L-7076, April 28, 1955)

 The cause of action must exist at the time the action was begun, and the plaintiff will not be allowed by
an amendment to introduce a cause of action which had no existence when the action was commenced.
(Surigao Mine Exploration Co. v. Harris, G.R. No. L-45543, May 17,1939)

Amendments by leave of court. — Except as provided in the next preceding section, substantial amendments
may be made only upon leave of court. But such leave may be refused if it appears to the court that the motion
was made with intent to delay. Orders of the court upon the matters provided in this section shall be made
upon motion filed in court, and after notice to the adverse party, and an opportunity to be heard. (Sec. 3, Rule
10)

When amendments by leave of court NOT allowed

1. Cause of action, defense or theory of the case is changed;
2. Amendment is intended to confer jurisdiction to the court;
3. Amendment seeks to cure the defect in the cause of action;
4. Amendment is made with intent to delay.

 In Guntalilib v. Dela Cruz, the respondents' Complaint was amended even before petitioner could file
any responsive pleading thereto; under the 1997 Rules, a party may amend his pleading once as a matter
of right at any time before a responsive pleading is served. No motion to admit the same was required;
as the amendment is allowed as a matter of right, prior leave of court was unnecessary. Indeed, even if
such a motion was filed, no hearing was required therefor, because it is not a contentious motion. (G.R.
No. 200042, July 7, 2016)

 A substantial alteration in the cause of action or defense is not a bar to amend the original complaint so
long as the amendment is not meant for delay. (Citystate Savings Bank, Inc. v. Aguinaldo, G.R. No. 200018.
April 16, 2015)

 It is well-settled that amendment of pleadings is favored and should be liberally allowed in the
furtherance of justice in order to determine every case as far as possible on its merits without regard to
technicalities. This principle is generally recognized in order that the real controversies between the
parties are presented, their rights determined and the case decided on the merits without unnecessary
delay to prevent circuity of action and needless expense. (ibid)

Formal amendments. — A defect in the designation of the parties and other clearly clerical or typographical
errors may be summarily corrected by the court at any stage of the action, at its initiative or on motion,
provided no prejudice is caused thereby to the adverse party. (Rule 10, Section 4)

Amendment to conform to or authorize presentation of evidence. — When issues not raised by the pleadings are
tried with the express or implied consent of the parties they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but
failure to amend does not effect the result of the trial of these issues. If evidence is objected to at the trial on the
ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended
and shall do so with liberality if the presentation of the merits of the action and the ends of substantial justice
will be subserved thereby. The court may grant a continuance to enable the amendment to be made. (Rule 10,
Section 5)

Supplemental pleadings. — Upon motion of a party the court may, upon reasonable notice and upon such terms
as are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which
have happened since the date of the pleading sought to be supplemented. The adverse party may plead thereto
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within ten (10) days from notice of the order admitting the supplemental pleading. (Rule 10, Section 5)

Rule 10 of the 1997 Revised Rules of Court allows the parties to supplement their pleadings by setting forth
transactions, occurrences, or events that happened since the date of the pleading sought to be supplemented.

 However, the option of a party-litigant to supplement a pleading is not without limitation. A

supplemental pleading only serves to bolster or add something to the primary pleading. Its usual
function is to set up new facts that justify, enlarge, or change the kind of relief sought with respect to the
same subject matter as that of the original complaint. (G.R. No. 173399, February 21, 2017, Central Bank
Board of Liquidators v. Banco Filipino Savings and Mortgage Bank)

Filing of amended pleadings. — When any pleading is amended, a new copy of the entire pleading,
incorporating the amendments, which shall be indicated by appropriate marks, shall be filed. (Sec. 7, Rule 10)

Effect of amended pleadings. — An amended pleading supersedes the pleading that it amends. However,
admissions in superseded pleadings may be received in evidence against the pleader, and claims or defenses
alleged therein not incorporated in the amended pleading shall be deemed waived. (Sec. 8, Rule 10)

Supplemental Pleadings distinguished from Amended Pleadings

Amended Pleadings Supplemental Pleadings

Refers to transaction, occurrences or events Refers to transactions, occurrences or events

already existing at the time of the filing of which have happened since the date of the
the original action. pleading sought to be supplemented.

Can be a matter of right such as when made

Always with leave of court.
before a responsive pleading is served.

A new copy of the entire pleading must be

No need to file but must serve a copy to the
filed incorporating the amendments and
court and the adverse party.
indicated by appropriate marks.

An amended pleading supersedes the

Original pleadings stands.
original one.

 It must be underscored that the service of the initiatory pleading has nothing to do with how courts
acquire jurisdiction over the person of the defendant in an ordinary civil action. Rather, it is the
propriety of the trial court's service of summons — same as the CA's service of its resolution indicating
its initial action on the certiorari petition — which remains material to the matter of the court's
acquisition jurisdiction over the defendant's/respondents' person. (G.R. No. 204796, Reicon v. Diamond
Dragon Realty, Feb. 4, 2015)

 The procedural rule, which requires that amendments to a pleading be indicated with appropriate
marks, has for its purpose the convenience of the Court and the parties. It allows the reader to be able to
immediately see the modifications. However, failure to use the appropriate markings for the deletions
and intercalations will not affect any substantive right. Certainly, its absence cannot cause the denial of
any substantive right. (Republic v. Sandiganbayan, G.R. No. 195295, October 5, 2016)

RULE 12. BILL OF PARTICULARS

In general, a bill of particulars is the further specification of the charges or claims in an action, which an
accused may avail of by motion before arraignment, to enable him to properly plead and prepare for trial.

In civil proceedings, a bill of particulars has been defined as a complementary procedural document
consisting of an amplification or more particularized outline of a pleading, and is in the nature of a more
specific allegation of the facts recited in the pleading. 47 The purpose of a motion for bill of particulars in civil
cases is to enable a party to prepare his responsive pleading properly.”

In criminal cases, a bill of particulars details items or specific conduct not recited in the Information but
nonetheless pertain to or are included in the crime charged. Its purpose is to enable an accused: to know the
theory of the government's case; to prepare his defense and to avoid surprise at the trial; to plead his acquittal or
conviction in bar of another prosecution for the same offense; and to compel the prosecution to observe certain
limitations in offering evidence.” (Enrile v. People, G.R. No. 213455, August 2015)

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Vagueness in the allegations in the complaint not a ground for dismissal
An action cannot be dismissed on the ground that the complaint is vague or indefinite. The remedy of
the defendant is to move for a bill of particulars or avail of the proper mode of discovery (Galeon v. Galeon, G.R.
No. L-30380, Feb. 28, 1973).

Remedy if the allegations fails to state a cause of action

If the pleading is not only indefinite or ambiguous but fails to state a cause of action, the remedy of the
party is to file a motion to dismiss on the ground that the pleading states no cause of action. (Primer-Reviewer on
Remedial Law, Vol.I, Civil Procedure, Riguera, 2nd ed., 2013)

When to file?
The motion for bill of particulars shall be filed before responding to a pleading. Hence, it must be filed
within the period granted by the Rules (Rule 11) for the filing of a responsive pleading.

Actions of the court

Upon the filing of the motion, the clerk of court must immediately bring it to the attention of the court
which may either deny or grant it outright, or allow the parties the opportunity to be heard. (Rule 12, Section 2)

Compliance with the order and effect of noncompliance

Compliance with Order

If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten
(10) days from notice of the order, unless a different period is fixed by the court. The bill of particulars or a more
definite statement ordered by the court may be filed either in a separate or in an amended pleading, serving a
copy thereof on the adverse party. (Rule 12, Section 3)

Effect of Noncompliance

 If the order is not obeyed, or in case of insufficient compliance therewith, the court may order
the striking out of the pleading or the portions thereof to which the order was directed or make
such other order as it deems just. (Rule 12, Section 4)

 If the plaintiff fails to obey, his complaint may be dismissed with prejudice UNLESS otherwise
ordered by the court (Rule 12, Sec. 4; Rule 17, Section 3);
 If defendant fails to obey, his answer will be stricken off and his counterclaim dismissed, and he
will be declared in default upon motion of the plaintiff (Rule 12, Section 4; Rule 17, Section 4; Rule
9, Sec. 3).

Effect on the period to file a responsive pleading

After service of the bill of particulars or of a more definite pleading, or after notice of denial of his
motion, the moving party may file his responsive pleading within the period to which he was entitled at the
time of filing his motion, which shall not be less than five (5) days in any event. (Rule 12, Section 5)

RULE 13. Filing and Service of Pleadings, Judgments and Other Papers

Filing is the act of presenting the pleading or other paper to the clerk of court.

Service is the act of providing a party with a copy of the pleading or paper concerned. If any party has
appeared by counsel, service upon him shall be made upon his counsel or one of them, unless service upon the
party himself is ordered by the court. Where one counsel appears for several parties, he shall only be entitled to
one copy of any paper served upon him by the opposite side. (Sec. 2, Rule 13)

Personal service is required precisely because it often happens that hearings do not push through
because, while a copy of the motion may have been served by registered mail before the date of the hearing,
such is received by the adverse party already after the hearing. Thus, the rules prefer personal service. But it
does not altogether prohibit service by registered mail when such service, when adopted, ensures as in this case
receipt by the adverse party. (G.R. No. 178789, November 14, 2012, Lim v. NAPOCOR)

While personal service is the preferred method of serving summons, the Rules of Court are also mindful
that this is sometimes impracticable or even impossible. Thus, Rule 14 also allows the sheriff (or other proper
court officer) to resort to substituted service instead.

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

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unknown, service may be made by delivering the copy to the clerk of court, with proof of failure of both
personal service and service by mail. The service is complete at the time of such delivery. (Sec. 8, Rule 13)

Completeness of service. — Personal service is complete upon actual delivery. Service by ordinary mail is
complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides. Service by
registered mail is complete upon actual receipt by the addressee, or after five (5) days from the date he received
the first notice of the postmaster, whichever date is earlier. (Sec. 10)

 Clearly, service made through registered mail is proved by the registry receipt issued by the mailing
office and an affidavit of the person mailing of facts showing compliance with the rule. (G.R. No. 198572,
January 13, 2016, Alba, Jr., v. Malapajo)

 Though filing of pleadings thru a private courier is not prohibited by the Rules, it is established in
jurisprudence that the date of actual receipt of pleadings by the court is deemed the date of filing of such
pleadings, and not the date of delivery thereof to a private letter-forwarding agency. (Bautista v. Bautista,
G.R. No. 202088, March 8, 2017)

 In National Power Corp v. Southern Philippines Power Corp., (G.R. No. 219627, July 4, 2016), The Supreme
Court found clear and persuasive reason for the Court to relax the rules. Here, the Energy Regulatory
Commission previously allowed petitioner to file its other pleadings through a private courier (such as
LBC) despite its prescribed mode on the filing of pleadings being either personally or by registered mail.
This liberality extended by the Commission on petitioner's earlier filings gave it a reasonable ground to
believe that its filing of a motion for reconsideration through the same private courier would be
considered sufficient compliance with the Energy Regulatory Commission Rules of Practice and
Procedure. Unfortunately, the Motion for Reconsideration reached the Commission four (4) days
beyond the due date.”

Petitioner's delay in filing the motion for reconsideration was far from being intentional and
dilatory. Petitioner simply followed its usual mode of filing its pleadings, which had been previously
acceptable to the Commission. The Energy Regulatory Commission itself adopts a liberal policy in the
construction of its Rules of Practice and Procedure "to secure the most expeditious and least expensive
determination of every proceeding . . . on its merits." 68 Hence, the Commission should have given due
course to petitioner's Motion for Reconsideration, given petitioner's satisfactory explanation for missing
the deadline.” (ibid)

RULE 14. SUMMONS

What is summons?
Summons is a writ by which the defendant is notified of the action brought against him or her. Its
purpose is two-fold: to acquire jurisdiction over the person of the defendant and to notify the defendant that an
action has been commenced so that he may be given an opportunity to be heard on the claim against him.
(National Petroleum Gas, In. v. Rizal Commercial Banking Corp., G.R. No. 183370, August 17, 2015)

How can the court acquire jurisdiction over the defendant?

In civil cases, jurisdiction over a party is acquired either through his voluntary appearance in court or
upon a valid service of summons. When a party was not validly served summons and did not voluntarily
submit to the court's jurisdiction, the court cannot validly grant any relief against him. (Ang v. Chinatrust, G>R.
No. 200693, April 18, 2016)

[W]hile proper service of summons is necessary to vest the court jurisdiction over the defendant, the
same is merely procedural in nature and the lack of or defect in the service of summons may be cured by the
defendant's subsequent voluntary submission to the court's jurisdiction through his filing a responsive pleading
such as an answer. Guy v. Gacott, G.R. No. 206147, January 13, 2016)

Jurisdiction over the res

Under Section 15, service of summons only confers jurisdiction over the res and not over the person of
the defendant.

Nature and purpose of summons in relation to actions in personam, in rem and quasi in rem
a) Action in Personam – To acquire jurisdiction over the person of the defendant.
b) Action in Rem or Quasi in Rem –

1.To give notice to the defendant that an action has been commenced against him; and
2. To afford the defendant an opportunity to be heard on the claim against him.
Rule on unknown defendant or when the whereabouts is unknown

Under the old rule, the distinction between the nature of actions was important for it determines the

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mode of service of summons to be made. However, in Santos v. PNOC (G.R. No. 170943, September 23, 2008), the
Supreme Court held that the in rem/in personam distinction was significant under the old rule because it was
silent as to the kind of action to which the rule was applicable. Because of this silence, the court limited the
application of the old rule to in rem actions only. This has been changed.

The present rule expressly states that it applied to any action where the defendant is designated as
unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by
diligent inquiry. Thus, it now applies to any action, whether in personam, in rem or quasi in rem.

Voluntary appearance

Instances of submission to court's jurisdiction

1. filing of motions to admit answer;
2. for additional time to file answer, for reconsideration of a default judgment;
3. and to lift order of default with motion for reconsideration. (G.R. Nos. 158836, 158967, 160726 & 160778,
September 30, 2015)

Other forms of voluntary appearance:

a) Appearance of counsel in behalf of defendant
b) Filing of pleadings or papers in court
c) A telegraphic motion for postponement
d) The filing of a motion for dissolution of attachment.

Special Appearance to file a motion to dismiss on grounds aside from lack of jurisdiction over the person of
the defendant shall NOT be deemed a voluntary appearance.

While Rule 14, Section 20 of the Rules of Court provides that voluntary appearance is equivalent to service of
summons, the same rule also provides that "[t]he inclusion in a motion to dismiss of other grounds aside from
lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Sunrise
Garden Corp. v. Court of Appeals, (G.R. Nos. 158836, 158967, 160726 & 160778, September 30, 2015)

In Philippine Commercial International Bank v. Spouses Dy Hong Pi, et al., 214 this court discussed that
voluntary appearance in court may not always result in submission to the jurisdiction of a court.

Preliminarily, jurisdiction over the defendant in a civil case is acquired either by the coercive power of
legal processes exerted over his person, or his voluntary appearance in court.

As a general proposition, one who seeks an affirmative relief is deemed to have submitted to the
jurisdiction of the court. It is by reason of this rule that we have had occasion to declare that the filing of
motions to admit answer, for additional time to file answer, for reconsideration of a default judgment,
and to lift order of default with motion for reconsideration, is considered voluntary submission to the
court's jurisdiction. This, however, is tempered by the concept of conditional appearance, such that a
party who makes a special appearance to challenge, among others, the court's jurisdiction over his
person cannot be considered to have submitted to its authority.

Prescinding from the foregoing, it is thus clear that:

1. Special appearance operates as an exception to the general rule on voluntary appearance;

2. Accordingly, objections to the jurisdiction of the court over the person of the defendant must be
explicitly made, i.e., set forth in an unequivocal manner; and

3. Failure to do so constitutes voluntary submission to the jurisdiction of the court, especially in

instances where a pleading or motion seeking affirmative relief is filed and submitted to the court
for resolution.

The appearance of respondent First Alliance Real Estate Development, Inc. and K-9 Security Agency
should not be deemed as a voluntary appearance because it was for the purpose of questioning the
jurisdiction of the trial court. The records of this case show that the defense of lack of jurisdiction was
raised at the first instance and repeatedly argued by K-9 Security Agency and respondent First Alliance
Real Estate Development, Inc. in their pleadings. (G.R. Nos. 158836, 158967, 160726 & 160778, September
30, 2015)

MODES OF SERVICE OF SUMMONS

Personal service
Whenever practicable, the summons shall be served by handling a copy thereof to the defendant in person, or, if
he refuses to receive and sign for it, by tendering it to him. (Rule 14, Section 6)

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Substituted service

If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding
section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some
person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or
regular place of business with some competent person in charge thereof. (Rule 14, Section 7)

 In an action strictly in personam, summons shall be served personally on the defendant whenever
practicable. Personal service is made by personally handing a copy of the summons to the defendant or
by tendering it to him if he refuses to receive and sign for it. (G.R. No. 200693, April 18, 2016, Ang vs.
China Trust)

Elements of valid substituted service:

First, the party relying on substituted service or the sheriff must establish the impossibility of prompt personal
service. Before substituted service of summons can be resorted to, the sheriff must have made several attempts
to personally serve the summons within a reasonable period of one month. And by "several attempts," the
sheriff is expected to have tried at least thrice on at least two different dates.
Second, there must be specific details in the return describing the circumstances surrounding the attempted
personal service. The sheriff must describe the efforts he took and the circumstances behind the failure of his
attempts. The details in the return serve as evidence to prove the impossibility of prompt personal service.

Third, if substituted service is made at the defendant's house or residence, the sheriff must leave a copy of the
summons with a person of "suitable age and discretion residing therein" This refers to a person who has reached the
age of full legal capacity and has sufficient discernment to comprehend the importance of a summons and his
duty to deliver it immediately to the defendant.

Finally, if substituted service is made at the defendant's office or regular place of business, the sheriff must
instead leave a copy of the summons with a "competent person in charge thereof." This refers to the person
managing the office or the business of the defendant, such as the president or the manager.

 A serving officer's failure to comply with any of these elements results in the court's failure to acquire
jurisdiction over the person of the defendant. However, proof that the defendant actually received the
summons in a timely manner or his failure to deny the same (which amounts to voluntary appearance)
would satisfy the requirements of due process. The constitutional requirement of due process requires
that the service be such as may be reasonably expected to give the notice desired. Once the service
reasonably accomplishes that end, the requirement of justice is answered, traditional notions of fair play
are satisfied, and due process is served. (G.R. No. 200693, April 18, 2016.

Constructive service (by publication)

a) Service upon a defendant where his identity is unknown or his whereabouts are unknown

In any action where the defendant is designated as an unknown owner, or the like, or whenever
his whereabouts are unknown and cannot be ascertained by diligent inquiry, service may, by leave of
court, be effected upon him by publication in a newspaper of general circulation and in such places and
for such time as the court may order. (Rule 14, Section 14)

b) Service upon residents temporarily outside the Philippines

When any action is commenced against a defendant who ordinarily resides within the
Philippines, but who is temporarily out of it, service may, by leave of court, be also effected out of the
Philippines, as under the preceding section. (Rule 14, Section 16) (Note: See Extraterritorial Service for this
section refers to it)

Extra-territorial service, when allowed

When the defendant does not reside and is not found in the Philippines, and the action affects the
personal status of the plaintiff or relates to, or the subject of which is, property within the Philippines, in which
the defendant has or claims a lien or interest, actual or contingent, or in which the relief demanded consists,
wholly or in part, in excluding the defendant from any interest therein, or the property of the defendant has
been attached within the Philippines, service may, by leave of court, be effected out of the Philippines by
personal service as under section 6; or by publication in a newspaper of general circulation in such places and
for such time as the court may order, in which case a copy of the 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 may deem

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sufficient. Any order granting such leave shall specify a reasonable time, which shall not be less than sixty (60)
days after notice, within which the defendant must answer. (Rule 14, Section 15)

Service of Summons through other modes

Extra-territorial service may be validly served by telefax or email as the rule provides “any other other
manner the court may deem sufficient.”

The Court had acquired jurisdiction over said defendant, through service of the summons addressed to
him upon Mrs. Schenker, it appearing from said answer that she is the representative and attorney-in-fact of her
husband. She had authority to sue, and had actually sued on behalf of her husband. (Gemerple v. Schenker, G.R.
No. L-18164 January 23, 1967)

However, in the case Valmonte v. CA, Mrs. Valmonte did not appoint Mr. Valmonte as her attorney-in-
fact to represent her in litigations and in court. Mr. Valmonte was merely acting as his wife's counsel in
negotiations with but this cannot be construed as an authorization. (Valmonte v. CA, G.R. No. 108538. January 22,
1996)

Service upon prisoners and minors

When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him by
the officer having the management of such jail or institution who is deemed deputized as a special sheriff for
said purpose. (Rule 14, Section 9)

When the defendant is a minor, insane or otherwise an incompetent, service shall be made upon him
personally and on his legal guardian if he has one, or if none his guardian ad litem whose appointment shall be
applied for by the plaintiff. In the case of a minor, service may also be made on his father or mother. (Rule 14,
Section 10)

Proof of service

Rule 14, Section 18. Proof of service. — The proof of service of a summons shall be made in writing by the
server and shall set forth the manner, place, and date of service; shall specify any papers which have been
served with the process and the name of the person who received the same; and shall be sworn to when made
by a person other than a sheriff or his deputy.

Rule 14, Section 19. Proof of service by publication. — If the service has been made by publication, service
may be proved by the affidavit of the printer, his foreman or principal clerk, or of the editor, business or
advertising manager, to which affidavit a copy of the publication shall be attached and by an affidavit showing
the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to
the defendant by registered mail to his last known address.

Rule 15. MOTIONS

Definition. A motion is an application for relief other than by a pleading. (Rule 15, Section 1)

Under the rules on Small Claims Cases a motion is an oral or written request asking for an affirmative action
from the court, that includes a letter.

Motions versus pleadings

A motion is an application for relief other than by a pleading. (Rule 15, Section 1). A motion prays for another
relief other than the main cause of action or the main defense, while a pleading prays for a relief which is
directly related to the cause of action or defense.

Contents and forms of motions

Contents
A motion shall state the relief sought to be obtained and the grounds upon which it is based, and if required by
these Rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other
papers. (Rule 15, Section 3)

Form
All motions shall be in writing except those made in open court or in the course of a hearing or trial. (Rule 15,
Section 2)

Notice of hearing and hearing of motions

Except for motions which the court may act upon without prejudicing the rights of the adverse party, every
written motion shall be set for hearing by the applicant.

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Every written motion required to be heard and the notice 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. (Rule 15, Section 4)

 A motion that does not contain a notice of hearing is a mere scrap of paper and presents no question
which merits the attention and consideration of the court. It is not even a motion for it does not comply
with the rules, and, hence, even the clerk has no right to receive it.(Mendez v. Shari'a District Court, G.R.
No. 201614, January 12, 2016)

 The logic for such requirement is simple: a motion invariably contains a prayer which the movant makes
to the court which is usually in the interest of the adverse party to oppose. The notice of hearing to the
adverse party is therefore a form of due process; it gives the other party the opportunity to properly
vent his opposition to the prayer of the movant. In keeping with the principles of due process, therefore,
a motion which does not afford the adverse party a chance to oppose should simply be disregarded.
Principles of natural justice demand that a right of a party should not be affected without giving it an
opportunity to be heard.”

 In keeping with the principles of due process, therefore, a motion which does not afford the adverse
party the chance to oppose it should simply be disregarded. 28 Failure to comply with the required
notice and hearing is a fatal defect that is deleterious to respondents cause.(Acampado v. Spouses Cosmilla,
G.R. No. 198531, September 28, 2015)

Omnibus motion rule

Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment, or
proceeding shall include all objections then available, and all objections not so included shall be deemed
waived. (Rule 15, Section 8)
Exception
Motions arguing that the court has no jurisdiction over the subject matter, that there is another action pending
between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of
limitations (Rule 9, Section 1)

Litigated Motions

They are motions which the court may not act upon without prejudicing the rights of the adverse party.
Made with notice to the adverse party to give an opportunity to oppose e.g., motion for reconsideration, motion
to dismiss motion to declare defendant in default.

Examples of Litigious Motions:

1. Motion for reconsideration
2. Motion to dismiss
3. Motion to declare defendant in default
4. Motion for execution

Ex Parte Motions

They are motions which the court may act upon without prejudicing the rights of the adverse party.
Made without the presence or a notification to the other party because the question generally presented is not
debatable e.g., motion for extension of time to file answer, motion for postponement, motion for extension of
time to file record on appeal.

Examples of Ex Parte Motions:

1. Motion for postponement
2. Motion to set case for pre-trial

Pro-forma motions
They are motions which do not satisfy the requirements of the rules and one which will be treated as a
motion intended to delay the proceedings (Riano, 2007 citing Marikina Valley Dev't. Corp. v. Hon. Flojo, G.R. No.
110801, December 8, 1995).

RULE 16. MOTION TO DISMISS

Grounds.(Rule 16, Sec. 1)

a. Lack of jurisdiction over the person of the defendant;
b. Lack of jurisdiction over the subject matter of the claim;
c. Venue is improperly laid;

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 d. Plaintiff has no legal capacity to sue;
e. There is another action pending between the same parties for the same cause (Litis Pendentia);
f. Cause of action is barred by a prior judgment or by statute of limitations (Res judicata/ Prescription);
g. Lack of Cause of action;
h. Claim or demand in the plaintiff's pleading has been paid, waived, abandoned, extinguished;
i. Claim on which action is founded is unenforceable under the statute of frauds;
j. Condition precedent for filing has not been complied with (this includes prior recourse to barangay conciliation,
or failure to make attempts to reach a compromise in cases between members of the same family)
k. Strategic Lawsuit Against Public Participation (Under the Rules on Environmental cases)

Instances of motu proprio dismissal

Section 1, Rule 9 provides for only four instances when the court may motu proprio dismiss the claim,
namely: (a) lack of jurisdiction over the subject matter; (b) litis pendentia; (c) res judicata; and (d) prescription of
action.

The ground for dismissal must be evident from the pleadings or from the evidence on record before a
Court can dismiss a case motu proprio. (De Leon v. Chu, G.R. No. 186522, September 2, 2015)

Resolution of motion

After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the
pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not
indubitable. (Rule 16, Sec. 3)

Remedies of plaintiff when the complaint is dismissed

The plaintiff may:

a. File a motion for reconsideration, to appeal from the order of dismissal

b. Appeal from the order of dismissal
c. Re-file the complaint

Remedies of the defendant when the motion is denied

The defendant may:

a. File a motion for reconsideration; or

b. File a petition for certiorari; or
c. Prohibition

Remedy for denial of motion to dismiss

An order denying a motion to dismiss is an interlocutory order which neither terminates nor finally
disposes of a case as it leaves something to be done by the court before the case is finally decided on the merits.
Thus, as a general rule, the denial of a motion to dismiss cannot be questioned in a special civil action for
certiorari which is a remedy designed to correct errors of jurisdiction and not errors of judgment. 18 As
exceptions, however, the defendant may avail of a petition for certiorari if the ground raised in the motion to
dismiss is lack of jurisdiction over the person of the defendant or over the subject matter, 19 or when the denial
of the motion to dismiss is tainted with grave abuse of discretion. (Municipality of Tangkal, Lanao Del Norte v.
Balindong, G.R. No. 193340, January 11, 2017)

Effect of dismissal of complaint on certain grounds

General rule: The action may be re-filed.

Exceptions: The action can no longer be re-filed if it was dismissed on the grounds of:

a. Res judicata;
b. Extinguishment of the claim or demand;
c. Prescription; or
d. Unenforceability of the claim

When grounds pleaded as affirmative defenses

If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be
pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be

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had thereon as if a motion to dismiss had been filed. (Rule 16, Sec. 6)

Bar by dismissal

The action can no longer be re-filed if it was dismissed on the grounds of:
a. Res judicata;
b. Extinguishment of the claim or demand;
c. Prescription; or
d. Unenforceability of the claim

RULE 17. DISMISSAL OF ACTIONS

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 judgment. Upon such notice being filed, the court shall issue an order
confirming the dismissal. (Rule 17, Sec. 1)

Two-Dismissal Rule

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. (Rule 17, Sec. 1) Thus, when the same complaint had twice been dismissed
by the plaintiff under Sec.1 by simply filing a notice of dismissal, the second dismissal shall be with prejudice.

As a general rule, dismissals under Section 1 of Rule 17 are without prejudice except when it is the second
time that the plaintiff caused its dismissal. Accordingly, for a dismissal to operate as an adjudication upon the
merits, i.e. with prejudice to the re-filing of the same claim, the following requisites must be present:

(1) There was a previous case that was dismissed by a competent court;
(2) Both cases were based on or include the same claim;
(3) Both notices for dismissal were filed by the plaintiff; and
(4) When the motion to dismiss filed by the plaintiff was consented to by the defendant on the ground that
the latter paid and satisfied all the claims of the former.

 The purpose of the "two-dismissal rule" is "to avoid vexatious litigation." 73 When a complaint is
dismissed a second time, the plaintiff is now barred from seeking relief on the same claim. (Ching v.
Cheng, G.R. No. 175507, October 8, 2014)

Dismissal upon motion by plaintiff; effect on existing counterclaim

Except as provided in the preceding section, a complaint shall not be dismissed at the plaintiff's instance
save upon approval of the court and upon such terms and conditions as the court deems proper. If a
counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiffs motion for
dismissal, the dismissal shall be limited to the complaint. The dismissal shall be without prejudice to the right of
the defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from notice of
the motion he manifests his 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 compromised without the approval of the court. (Rule 17, Sec. 2)

Dismissal due to the fault of plaintiff

If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in
chief on the complaint, or to prosecute his action for an 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 defendant or upon the
court's own motion, without 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 an adjudication upon the merits, unless otherwise
declared by the court. (Rule 17, Sec. 3)

Test of Non-prosequitur

This Court has said that "[t]he fundamental test for non prosequitur is whether, under the circumstances,
the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptitude. There
must be unwillingness on the part of the plaintiff to prosecute."

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 To constitute failure to prosecute, his non-appearance must be equated with unwillingness to proceed
with the trial as when both plaintiff and counsel made no appearance at all, or with the assumption that
plaintiff has already lost interest in prosecuting his action, in the same way that should the ground for
dismissal be delay, this delay or failure to proceed must be for an unreasonable length of time beyond
the reasonable allowance which by judicial leniency a litigant is normally entitled.

Likewise —

While a court can dismiss a case on the ground of non prosequitur, the real test of such power is
whether, under the circumstances, plaintiff is chargeable with want of due diligence in failing to
proceed with reasonable promptitude. In the absence of a pattern or a scheme to delay the disposition of
the case or a wanton failure to observe the mandatory requirement of the rules on the part of the
plaintiff, . . . courts should decide to dispense rather than wield their authority to dismiss. (Laurel v.
Vardeleon, G.R. No. 202967, August 15, 2015)

Dismissal of counterclaim, cross-claim or third-party complaint

The provisions of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or 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 summary judgment is served or, if there is none, before the introduction of
evidence at the trial or hearing. (Rule 17, Sec. 4)

RULE 18. PRE-TRIAL

Concept of Pre-Trial

Pre -trial is a mandatory procedural device by which the court is called upon, after the filing of the last
pleading, to compel the parties and their lawyers to appear before it for the purposes enumerated under Section
2, Rule 18.

When conducted? (Sec. 1, Rule 18)

After the last pleading has been served and filed, if shall be the duty of the plaintiff to promptly move ex
parte that the case be set for pre-trial.

The motion is to be filed within 5 days after the last pleading joining the issue has been served and filed
(Admin. Circular No. 3-99, Jan. 15, 1999).

If the plaintiff fails to file said motion within the given period, the Clerk of Court shall issue a notice of
pre-trial. (A.M. No. 03-1-09-SC, Re: Pre-trial guidelines, Effective August 16, 2004)

The plaintiff need not wait until the last pleading has been actually served and filed as the expiration of
the period for filing the last pleading will suffice. (Sarmiento v. Juan, No. 56605 January 28, 1983).

Nature and purpose (Sec. 2, Rule 18)

The pre-trial is mandatory. The court shall consider:

a) The possibility of an amicable settlement or of a submission to alternative modes of dispute resolution;
b) The simplification of the issues;
c) The necessity or desirability of amendments to the pleadings;
d) The possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary
proof;
e) The limitation of the number of witnesses;
f) The advisability of a preliminary reference of issues to a commissioner;
g) The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the
action should a valid ground therefor be found to exist;
h) The advisability or necessity of suspending the proceedings; and
i) Such other matters as may aid in the prompt disposition of the action.

Notice of pre-trial
The notice of pre-trial shall be served on counsel, or on the party who has no counsel. The counsel
served with such notice is charged with the duty of notifying the party represented by him. (Sec. 3, Rule 18)

Appearance of parties
It shall be the duty of the parties and their counsel to appear at the pre-trial. The non-appearance of a

26 | P a g e
party may be excused only if a valid cause is shown therefor or if a representative shall appear in his behalf
fully authorized in writing to enter into an amicable settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions of facts and of documents. (Sec. 4, Rule 18)

Effect of failure to appear

The failure of the plaintiff to appear when so required pursuant to the next preceding section shall be
cause for dismissal of the action. The dismissal shall be with prejudice, unless other-wise ordered by the court.
A similar failure on the part of the defendant shall be cause to allow the plaintiff to present his evidence ex parte
and the court to render judgment on the basis thereof. (Sec. 5, Rule 18)

Pre-trial brief (Sec. 6, Rule 18)

The parties shall file with the court and serve on the adverse party, in such manner as shall ensure their
receipt thereof at least three (3) days before the date of the pre-trial, their respective pre-trial briefs which shall
contain, among others:

a) A statement of their willingness to enter into amicable settlement or alternative modes of dispute
resolution, indicating the desired terms thereof;
b) A summary of admitted facts and proposed stipulation of facts;
c) The issues to be tried or resolved;
d) The documents or exhibits to be presented stating the purpose thereof;
e) A manifestation of their having availed or their intention to avail themselves of discovery procedures or
referral to commissioners; and
f) The number and names of the witnesses, and the substance of their respective testimonies.

Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial.

 Clearly, the said Rules command, in no uncertain terms, the filing of the preliminary conference brief
and compliance with the required contents of the said brief. By the Rules' express language, the failure
to comply therewith shall have the same effect as failure to appear at the preliminary conference which,
in turn, shall be a sufficient cause for the dismissal of the protest. (Cabrera v. COMELEC, G.R. No. 182084,
October 8, 2008)

Distinction between pre-trial in civil case and pre-trial in criminal case

CIVIL CASE CRIMINAL CASE

The presence of the defendant is required
The presence of the accused is not
unless he is duly represented by his counsel
indispensable unless required by the court,
with authority to enter into a compromise
he is just required to sign the written
agreement, failure of which the case would
agreement arrived at the pretrial if he is in
proceed as if the defendant has been
conformity therewith.
declared in default.
The offended party is not required to be
present at the pre-trial but must appear at
The presence of the plaintiff is required at
the
the pre-trial unless excused or represented
arraignment for the purpose of plea
by person fully authorized in writing to
bargaining, determination of civil liability
perform the acts specified in Sec 4, Rule 18.
and other matters requiring his presence. (If
Failure of which the case may be dismissed
the offended party fails to appear, and the
with or without
accused offer to plea to a lesser offense, the
prejudice.
same may be allowed with the
conformity of the prosecutor alone.
Does not require filing of pre-trial brief but
attendance only in a pre-trial conference to
A pre-trial brief is required
consider the matters stated in sec 2, rule18
(Regalado)

Effect of failure to set the case for pre-trial

Under Section 1, Rule 18 of the 1997 Rules of Civil Procedure, as amended, it is the duty of the plaintiff, after the
last pleading has been served and filed, to promptly move ex parte that the case be set for pre-trial. On August
16, 2004, A.M. No. 03-1-09-SC (Re: Proposed Rule on Guidelines to be Observed by Trial Court Judges and
Clerks of Court in the Conduct of Pre- Trial and Use of Deposition-Discovery Measures) took effect, which
provides that:

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Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex parte that the case
be set for pre-trial conference. If the plaintiff fails to file said motion within the given period, the Branch
COC shall issue a notice of pre-trial.

In BPI v. Spouses Genuino, the Supreme Court held:

Nevertheless, nowhere in the text of A.M. No. 03-1-09-SC does it remove the plaintiff's duty under
Rule 18, Section 1 of the Rules of Court to set the case for pre-trial after the last pleading has been served and
filed. Nowhere does it repeal Rule 17, Section 3 of the Rules of Court that allows dismissals due to plaintiff's
fault, including plaintiff's failure to comply with the Rules for no justifiable cause. Nowhere does it impose a
sole burden on the trial court to set the case for pre-trial.

Reading A.M. No. 03-1-09-SC together with Rule 17, Section 3 and Rule 18, Section 1 of the Rules of Court
accommodates the outright dismissal of a complaint upon plaintiff's failure to show justifiable reason for not
setting the case for pre-trial within the period provided by the Rules. Thus, trial courts must consider the
facts of each case.

This court has allowed cases to proceed despite failure by the plaintiff to promptly move for pre-trial when
it finds that "the extreme sanction of dismissal of the complaint might not be warranted":

It must be stressed that even if the plaintiff fails to promptly move for pre-trial without any
justifiable cause for such delay, the extreme sanction of dismissal of the complaint might not be
warranted if no substantial prejudice would be caused to the defendant, and there are special and
compelling reasons which would make the strict application of the rule clearly unjustified.
xxx xxx xxx

While "heavy pressures of work" was not considered a persuasive reason to justify the failure to
set the case for pre-trial in Olave v. Mistas, however, unlike the respondents in the said case,
herein respondent never failed to comply with the Rules of Court or any order of the trial court at
any other time. Failing to file a motion to set the case for pre-trial was her first and only technical
lapse during the entire proceedings. Neither has she manifested an evident pattern or a scheme to
delay the disposition of the case nor a wanton failure to observe the mandatory requirement of
the rules. Accordingly, the ends of justice and fairness would best be served if the parties are
given the full opportunity to litigate their claims and the real issues involved in the case are
threshed out in a full-blown trial. Besides, petitioners would not be prejudiced should the case
proceed as they are not stripped of any affirmative defenses nor deprived of due process of law.

This is not to say that adherence to the Rules could be dispensed with. However, exigencies and
situations might occasionally demand flexibility in their application. Indeed, on several occasions,
the Court relaxed the rigid application of the rules of procedure to afford the parties opportunity
to fully ventilate the merits of their cases. This is in line with the time-honored principle that cases
should be decided only after giving all parties the chance to argue their causes and defenses.
Technicality and procedural imperfection should thus not serve as basis of decisions.

Finally, A.M. No. 03-1-09-SC or the new Guidelines to be Observed by Trial Court Judges and
Clerks of Court in the Conduct of Pre-Trial and Use of Deposition-Discovery Measures, which
took effect on August 16, 2004, aims to abbreviate court proceedings, ensure prompt disposition
of cases and decongest court dockets, and to further implement the pre-trial guidelines laid down
in Administrative Circular No. 3-99 dated January 15, 1999. A.M. No. 03-1-09-SC states that:
"Within five (5) days from date of filing of the reply, the plaintiff must promptly move ex-parte
that the case be set for pre-trial conference. If the plaintiff fails to file said motion within the given
period, the Branch COC shall issue a notice of pre-trial." As such, the clerk of court of Branch 17 of
the Regional Trial Court of Malolos should issue a notice of pre-trial to the parties and set the case
for pre-trial. 37 (Emphasis supplied, citations omitted)

Rule 19. INTERVENTION

Definition – a proceeding in a suit or action by which a third person is permitted by the court to become a party
by intervening in the pending case after meeting the conditions and compliance with the requirement set by the
Rules.

Nature:
Intervention is ancillary and supplemental to an existing action. Hence, it cannot exist independent of the
principal action and the dismissal of the latter shall also cause the dismissal of the complaint-in-intervention.

General rule: Intervention is discretionary.

Exceptions: It is a matter of right when:

1) Intervenor turns out to be an indispensable party

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 2) Class suit

Note:
Intervention is a prohibited pleading in forcible entry and unlawful detainer cases under Sec. 13, Rule 70.

Requisites for intervention

A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or
an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of
property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in
the action. The court shall consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties, and whether or not the intervenor's rights may be fully
protected in a separate proceeding. (Rule 18, Sec. 1)

A leave of court is necessary in order that the third party may be allowed to intervene in the action.

An intervention cannot legally alter the nature of the action and the issue joined by the original parties.
(Clardidades v. Mercader, G.R. No. L-20341, May 14, 1966)

Time to intervene

The motion to intervene may be filed at any time before rendition of judgment by the trial court. A copy of the
pleading-in-intervention shall be attached to the motion and served on the original parties. (Rule 18, Sec. 2)

Remedy for the denial of motion to intervene

Answer to Complaint in Intervention (Rule 18, Sec.4)

Must be filed within 15 days from notice of the order admitting the same, unless otherwise fixed by the court.

Remedies if motion for intervention is denied

1) Appeal;
2) File a petition for mandamus if there is grave abuse of discretion.
3) If the grant of intervention is improper, the remedy available to the parties is Certiorari.
4) File a separate action

In Risos-Vidal v. Commission on Elections, (G.R. No. 206666, January 21, 2015) citing Ongco v. Dalisay, (677
SCRA 232, 241, July 18, 2012) the Supreme Court pronounced:

“Since Lim intervened only in the present petition for certiorari before this Court, the
Rules of Court on intervention directly applies. Section 2, Rule 19 of the Rules of Court provides
that the time to intervene is at any time before the rendition of judgment by the trial court.

The Court explained in Ongco v. Dalisay that "the period within which a person may intervene
is restricted and after the lapse of the period set in Section 2, Rule 19, intervention will no longer
be warranted. This is because, basically, intervention is not an independent action but is
ancillary and supplemental to an existing litigation."

In Ongco, the Court further traced the developments of the present rule on the period to file a
motion for intervention. The former rule was that intervention may be allowed "before or during
a trial." Thus, there were Court rulings that a motion for leave to intervene may be filed "before
or during a trial," even on the day when the case is submitted for decision as long as it will not
unduly delay the disposition of the case. There were also rulings where the Court interpreted
"trial" in the restricted sense such that the Court upheld the denial of the motion for intervention
when it was filed after the case had been submitted for decision. In Lichauco v. CA, intervention
was allowed at any time after the rendition of the final judgment. In one exceptional case, the
Court allowed the intervention in a case pending before it on appeal in order to avoid injustice.

To cure these inconsistent rulings, the Court clarified in Ongco that "[t]he uncertainty in these
rulings has been eliminated by the present Section 2, Rule 19, which permits the filing of the
motion to intervene at any time before the rendition of the judgment, in line with the ruling in
Lichauco.

The justification for this amendment is that before judgment is rendered, the court, for good
cause shown, may still allow the introduction of additional evidence as this is still within a
liberal interpretation of the period for trial. Also, since no judgment has yet been rendered, the
matter subject of the intervention may still be readily resolved and integrated in the judgment
disposing of all claims in the case, without requiring an overall reassessment of these claims as
would be the case if the judgment had already been rendered.

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 The Court held in Ongco that under the present rules, [t]he period within which a person may
intervene is also restricted. . . after the lapse of this period, it will not be warranted anymore.
This is because, basically, intervention is not an independent action but is ancillary and
supplemental to an existing litigation.
The Court further held in Ongco that "there is wisdom in strictly enforcing the period set by Rule
19 of the Rules of Court for the filing of a motion for intervention. Otherwise, undue delay
would result from many belated filings of motions for intervention after judgment has already
been rendered, because a reassessment of claims would have to be done. Thus, those who slept
on their lawfully granted privilege to intervene will be rewarded, while the original parties will
be unduly prejudiced."

Rule 20. SUBPOENA

Subpoena

Subpoena is a process directed to a person requiring him to either:

a. Attend and to testify at the hearing or the trial of an action or at any investigation conducted
by a competent authority;
b. Give his deposition;
c. Bring with him any books, documents or other things under his control.

Subpoena may be issued by: (Rule 21, Sec.2)

1. The court before whom the witness is required to attend;

2. The court of the place where the deposition is to be taken;
3. The officer or body authorized by law to do so in connection with the investigations conducted
by said officer or body; or
4. Any Justice of the Supreme Court or of the Court of Appeals in any case or investigation
pending within the Philippines.

Subpoena duces tecum

A process by which the court to compel the production of books, records, things or documents therein
specified. (Roco v. Contreras, et.al., G.R. No. 158275, June 18, 2005, 500 Phil 275)

Subpoena ad testificandum
Ordinary subpoena. Requires a person to whom the order is directed to attend and to testify at the
hearing or the trial of an action or at any investigation conducted by a competent authority or for the taking of
his deposition. It is used to compel a person to testify. (Roco v. Contreras, et.al., supra)

Service of subpoena
Service of a subpoena shall be made in the same manner as personal or substituted service of summons.
The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to
him the fees for one day's attendance and the 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 made so as to allow the witness a reasonable time for preparation and 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. (Rule 21, Sec.6)

Compelling attendance of witnesses; contempt

In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the
service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy,
to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of
such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that
his failure to answer the subpoena was willful and without just excuse. (Rule 21, Sec.8)

Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a
contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the
disobedience thereto shall be punished in accordance with the applicable law or Rule. (Rule 21, Sec.9)

The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than one
hundred (100) 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 the court in which his case is pending was obtained. (Rule 21,
Sec.10)

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Quashing of subpoena

Grounds for quashing subpoena duces tecum

Court may quash a subpoena duces tecum upon motion promptly made, and in any event, at or before
the time specified if:

a. It is unreasonable or oppressive;
b. The relevancy of the books, documents or things does not appear;
c. The person in whose behalf the subpoena is issued fails to advance the reasonable cost of the
production thereof; or
d. The witness fees and the kilometrage allowed by these Rules were not tendered when the
subpoena was served.

Grounds for quashing subpoena ad testificandum

1) The witness is not bound thereby; where the residence is more than 100km from place of trial.
2) The witness fees and the kilometrage allowed by these Rules were not tendered when the subpoena was
served.

“Viatory Right” of the witnesses– If witness resides more than 100 km from the place where he is to travel by
the ordinary course of travel, or if he is a detention prisoner and no permission is obtained from the court in
which his case is pending, then he cannot be compelled to attend the trial. The right is available only in CIVIL
cases.
There is no viatory right in criminal cases. (People v. Montejo, G.R. No. L-24154, Oct. 31, 1967)

Modes of discovery

Discovery: (A) device employed by a party to obtain information about relevant matters on the
case from the adverse party in preparation for the trial. (Riano 2011)

The modern pre-trial procedure by which one party gains vital information concerning the case in order to aid
him in his litigation. (Riguera 2013, citing Steven Gifis, Law Dictionary 61 [1975]).

Purpose: to narrow and clarify the basic issues between the parties, to ascertain the facts relative to the issues
and enable the parties to obtain the fullest possible knowledge of issues and facts before civil trials.

The primary purpose of discovery is to enable the parties to obtain the fullest possible knowledge of the issues
and facts before trial and thus prevent the situation where trials are carried on in the dark. It makes the parties
lay down their cards on the table so that justice can be rendered on the merits of the case. (Riguera 2013, citing
Koh v. IAC, 144 SCRA 259).

Modes or Methods of Discovery provided by the Rules of Court:

1) Depositions pending action (Rule 23); or Depositions before action or pending appeal (Rule 24);
2) Interrogatories to parties (Rule 25);
3) Request for admission by adverse parties (Rule 26);
4) Motion for Production or inspection of documents or things (Rule 27); and
5) Motion for physical and mental Examination of persons (Rule 28).

Availing modes of discovery is not mandatory but the failure to avail may be sanctioned under Rules 25 and 26.

Bill of Particular is distinguished from Modes of Discovery

The purpose of the Bill of Particular is to compel to clarify vague statements of ultimate facts. While Modes of
Discovery is to compel other party to reveal his evidence and evidentiary facts.

Prior Leave of Court, When Required

Rules 27 and 28 always require prior leave of court, unlike other modes of discovery which could be availed of
without leave of court as long as the defendant has filed or served a responsive pleading.

Rule 23. Depositions Pending Action.

Definition – Deposition is a written testimony of a witness given in the course of a judicial proceeding in
advance of the trial or hearing upon oral examination or in response to written interrogatories and where an
opportunity is given for cross-examination (Republic vs. Sandiganbayan, G.R. No. 112710, May 30, 2001).

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Deposition is a method of pre-trial discovery which consists in taking the testimony of a person under oath upon oral
examination (oral deposition) or upon written interrogatories. The term deposition also refers to the testimony
or statement so taken. (Riguera 2013)

Uses; scope of examination

Applies also for depositions under Rule 24

The purpose for which a deposition may be used depends on who the deponent is and on who will be using the
deposition. Rule 23, Section 4(c) lays down the relevant rules:

a) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony
of the deponent as a witness. This is a common use of a deposition, to impeach a witness who is under
cross-examination.

b) The deposition of a party or of anyone who at the time of the taking the deposition was an officer,
director, or managing agent of a public or private corporation, partnership, or association which is a
party may be used by an adverse party for any purpose.

c) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the
court finds:

1. that the witness is dead; or

2. that the witness resides at a distance more than 100 kilometers from the place of trial or
hearing or is out of the Philippines, unless it appears that his absence was procured by the
party offering the deposition;
3. that the witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment;
4. that the party offering the deposition has been unable to procure the attendance of the
witness by subpoena; or
5. upon application and notice, that such exceptional circumstance exist as to make it
desirable, in the interest of justice and with due regard to the importance of presenting the
testimony of the witness orally in open court, to allow the deposition to be used. (Rule 23,
Section 4)

When is deposition pending action taken? (Rule 24, Sec.1)

1. With leave of court

a) after jurisdiction has been obtained over any defendant or over property subject of the action;
b) deposition of a person confined in prison

2. Without leave of court

After an answer has been served.

General rule:
Plaintiff may not be permitted to take depositions before answer is served.

Reason: He must wait for the joinder of issues because only this time that it can be determined what is relevant.

Exception: Under special circumstances where there is necessity and good reason for presenting a strong case.
Thus, there must be necessity and good reason for the taking of the testimony immediately.

Example: Where the witness is aged or infirm.

 An answer ex abudanti cautela (out of abundant caution or to be on the safe side) does not make their
answer less of an answer and when such answer is filed, deposition may be made without leave of court
(Rosete v. Lim G.R No.136051, June 8, 2006).

Scope of Examination
Applies also for depositions under Rule 24

Deponent may be examined regarding any matter which is:

1. Not privileged;
2. Relevant to the subject of the pending action;
3. Not restricted by court order for the protection of parties and deponents;
4. Not meant to annoy, embarrass or oppress the deponent or party.

When may objections to admissibility be made?

Subject to the provisions of section 29 of this Rule, objection may be made at the trial or hearing, to

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receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the
evidence if the witness were then present and testifying. (Rule 23, Sec. 6)

Effect of errors and irregularities in depositions. —

a) As to notice. — All errors and irregularities in the notice for taking a deposition are waived unless
written objection is promptly served upon the party giving the notice.

b) As to disqualification of officer. — Objection to taking a deposition because of disqualification of the officer

before whom it is to be taken is waived unless made before the taking of the deposition begins or as
soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.

c) As to competency or relevancy of evidence. — Objections to the competency of witness or the competency,

relevancy, or materiality of testimony are not waived by failure to make them before or during the
taking of the deposition, unless the ground, of the objection is one which might have been obviated or
removed if presented at that time.

d) As to oral examination and other particulars. — Errors and irregularities occurring at the oral examination
in the manner of taking the deposition in the form of the questions or answers, in the oath or
affirmation, or in the conduct of the parties and errors of any kind which might be obviated, removed,
or cured if promptly prosecuted, are waived unless reasonable objection thereto is made at the taking of
the deposition.

e) As to form of written interrogatories. — Objections to the form of written interrogatories submitted under
sections 25 and 26 of this Rule are waived unless served in writing upon the party propounding them
within the time allowed for serving succeeding cross or other interrogatories and within three (3) days
after service of the last interrogatories authorized.

a) As to manner of preparation. — Errors and irregularities in the manner in which the testimony is
transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or
otherwise dealt with by the officer under sections 17, 19, 20 and 26 of this Rule are waived unless a
motion to suppress the deposition or some part thereof is made with reasonable promptness after such
defect is, or with due diligence might have been, ascertained.

When may taking of deposition be terminated or its scope limited?

At any time during the taking of the deposition, on motion or petition of any party or of the deponent,
and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to
annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the Regional
Trial Court of the place where the deposition is being taken may order the officer conducting the examination to
cease forthwith from taking the deposition, or may limit 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 shall be resumed
thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party
or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an
order. In granting or refusing such order, the court may impose upon either party or upon the witness the
requirement to pay such costs or expenses as the court may deem reasonable. (Rule 23, Sec. 18)

RULE 25. Written interrogatories to adverse parties

Under the same conditions specified in section 1 of Rule 23, any party desiring to elicit material and
relevant facts from any adverse parties shall file and serve upon the latter written interrogatories to be answered
by the party served or, if the party served is a public or private corporation or a partnership or association, by
any officer thereof competent to testify in its behalf. (Rule 25, Sec. 1)

Consequences of refusal to answer

The examination may completed on other matters or adjourned as the proponent of the question may
prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken,
for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to
answer any interrogatory submitted under Rules 23 or 25.

If the application is granted, the court shall require the refusing party or deponent to answer the
question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it
may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the
proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney's fees.

If the application is denied and the court finds that it was filed without substantial justification, the court
may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the

33 | P a g e
refusing party or deponent the amount of the reasonable expenses incurred in opposing the application,
including attorney's fees. Rule 29, Sec. 1)

If a party or an officer or managing agent of a party wilfully fails to appear before the officer who is to
take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories
submitted under Rule 25 after proper service of such interrogatories, the court on motion and notice, may strike
out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter
a judgment by default against that party, and in its discretion, order him to pay reasonable expenses incurred by
the other, including attorney's fees. (Rule 29, Sec. 5)
Effect of failure to serve written interrogatories

Unless thereafter allowed by the court for good cause shown and to prevent a failure of justice, a party
not served with written interrogatories may not be compelled by the adverse party to give testimony in open
court, or to give a deposition pending appeal. (Rule 25, Sec. 6)

RULE 26. ADMISSION

Request for admission

At any time after issues have been joined, a party may file and serve upon any other party may file and
serve upon any other party a written request for the admission by the latter of the genuineness of any material
and relevant document described in and exhibited with the request or of the truth of any material and relevant
matter of fact set forth in the request. Copies of the documents shall be delivered with the request unless copy
have already been furnished. (Rule 26, Sec. 1)

 A request for admission must be served directly upon the party requested. Otherwise, that party cannot
be deemed to have admitted the genuineness of any relevant matters of fact set forth therein on account
of failure to answer the request for admission. (Riguera 2013, citing Lañada vs. CA, 1 February 2002).

Implied admission by adverse party

Each of the matters of which an admission is requested shall be deemed admitted unless, within a
period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within
such further time as the court may allow on motion, the party to whom the request is directed files and serves
upon the party requesting the admission a sworn statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those
matters. (Rule 26, Sec. 2(1))

Objections to any request for admission shall be submitted to the court by the party requested within the
period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his
compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as
early as practicable. (Rule 26, Sec. 2(2))

Exceptions:

1. The requested party files and serves upon the party requesting the admission a sworn statement either
specifically denying or setting forth in detail the reasons why he cannot truthfully either admit or deny
those matters., within a period designated in the request, which shall not be less than 15 days after
service thereof or within such further time as the court may allow on motion.

2. When the request for admission is not directly served upon the party requested, the party requested
cannot be deemed to have admitted the genuineness of any relevant matters of fact set forth therein on
account of failure to answer the request for admission. (Riguera 2013, citing Lañada vs. CA, 1 February
2002).

Consequences of failure to answer request for admission

If a party after being served with a request under Rule 26 to admit the genuineness of any document or
the truth of any matter of fact serves a sworn denial thereof and if the party requesting the admissions thereafter
proves the genuineness of such document or the truth of any such matter of fact, he may apply to the court for
an order requiring the other party to pay him the reasonable expenses incurred in making such proof, including
attorney's fees. Unless the court finds that there were good reasons for the denial or that admissions sought
were of no substantial importance, such order shall be issued. (Rule 29, Sec. 4)

Effect of admission

Any admission made by a party pursuant to such request is for the purpose of the pending action only

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and shall not constitute an admission by him for any other purpose nor may the same be used against him in
any other proceeding. (Rule 26, Sec. 3)

Effect of failure to file and serve request for admission

Unless otherwise allowed by the court for good cause shown and to prevent a failure of justice a party
who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue
which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present
evidence on such facts. (Rule 26, Sec. 5)

RULE 27. Production or inspection of documents or things

Upon motion of any party showing good cause therefor, the court in which an action is pending may (a)
order any party to produce and permit the inspection and copying or photographing, by or on behalf of the
moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain evidence material to any matter involved in the action and
which are in his possession, custody or control, or (b) order any party to permit entry upon designated land or
other property in his possession or control for the purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant object or operation thereon. The order shall specify the
time, place and manner of making the inspection and taking copies and photographs, and may prescribe such
terms and conditions as are just. (Rule 27, Sec. 1)

RULE 28. Physical and mental examination of persons

This mode of discovery is available in an action in which the mental or physical condition
of a party is in controversy.

Examples:
1. Annulment of contract on the ground of insanity
2. Petition for guardianship of a person alleged to be insane
3. Action for damages where the issue is the extent of injuries of plaintiff (Riano)

Requisites:

1. Physical or mental condition must be the subject of controversy.

2. Motion showing good cause must be filed.
3. Notice of motion must be given to the party to be examined and to all other parties.

When examination may be ordered? (Rule 28, Sec.1)

In an action in which the mental or physical condition of a party is in controversy, the court in which the
action is pending may in its discretion, order him to submit to a physical or mental examination by a physician.

Since the results of the examination are intended to be made public, the same are not covered by the physician-
patient privilege. Furthermore such examination is not necessary to treat or cure the patient but to assess the
extent of injury or to evaluate his physical or mental condition (Rule 130, Sec. 24[c]).

Requisites:

1. Physical or mental condition must be the subject of controversy.

2. Motion showing good cause must be filed.
3. Notice of motion must be given to the party to be examined and to all other parties.

Report of Findings (Rule 28, Sec.3)

A copy of the detailed written report of the examining physician may be delivered to the party
examined, if the latter should request.

Order for Examination (Rule 28, Sec.2)

Requisites:
1. Physical or mental condition must be the subject of controversy.
2. Motion showing good cause must be filed.
3. Notice of motion must be given to the party to be examined and to all other parties.

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Report of Findings (Rule 28, Sec.3)

A copy of the detailed written report of the examining physician may be delivered to the party
examined, if the latter should request.
Waiver of Privilege (Rule 28, Sec.4)

A party examined waives any privilege he may have in that action or any other involving the same
controversy:
1) By requesting and obtaining a report of the examination so ordered; or
2) By taking the deposition of the examiner.

Consequences of Requesting and Obtaining a Report of Examination

Where the party examined requests and obtains a report on the results of the examination, the
consequences are that:

a) He has to furnish the other party a copy of the report of any previous or subsequent examination of the
same physical and mental examination; and

b) He waives any privilege he may have in that action or any other involving the same controversy
regarding the testimony of any other person who has so examined him or may thereafter examine him
(Regalado).

Prior Leave of Court, when required

Rules 27 and 28 always require prior leave of court, unlike other modes of discovery which could be
availed of without leave of court as long as the defendant has filed or served a responsive pleading.

RULE 29. Consequences of refusal to comply with modes of discovery

Sanctions:

Refusal to answer any question (Rule 29, Sec. 1)

a. Examination may be completed on other matters, or adjourned, as the proponent of the question
may prefer;
b. Upon application by the proponent, the court may compel the deponent to answer the questions;
c. If the refusal was without substantial justification, court may require the refusing party or
deponent or the counsel advising the refusal or both of them, to pay the proponent the amount
of the reasonable expenses incurred in obtaining the order, including attorney's fees.

The remedies above are available under Rule 23 and Rule 25.

Refusal to answer designated or particular questions or refusal to produce documents or things or to submit
to physical examination (Rule 29, Sec.3)

a. Order that the matters regarding which questions were asked shall be taken to be established for
purposes of the action in accordance with the claim of the party obtaining the order;
b. Refuse to allow the disobedient party to support or oppose designated claims or defenses;
c. Strike out all or any part of the pleading of the disobedient party;
d. In lieu of the foregoing orders or in addition thereto, an order directing the arrest of any party or
agent of any party for disobeying any such orders, except an order to submit to a physical or
mental examination.

Refusal to be sworn (Rule 29, Sec. 2)

If a party or other witness refuses to be sworn or refuses to answer question after being directed to do so by the
court of the place in which deposition is being taken, such refusal may considered a contempt of that court.

Refusal to admit (Rule 29, (Sec. 4)

The court upon proper application may order the former to pay the reasonable expenses in making such proof,
including attorney's fees.

If:
a. A party requests for the admission of either:
b. the genuineness of any document, or
c. the truth of any matter of fact

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 d. The party requested refuses to admit the same and thereafter serves a sworn denial thereof, and;
e. Later, the party requesting for admission proves the genuineness or truthfulness, as the case
may be; then, the party requesting for the admission may apply to the court for an order
requiring the adverse party to pay reasonable expenses incurred in making such proof,
including attorney's fees.

Failure to attend depositions or to serve answers to interrogatories (Rule 29, Sec. 5)

1. 1.Strike out all or any part of the pleading of the disobedient party;
2. Render a judgment by default against the disobedient party;
3. Order him to pay reasonable expenses incurred, including attorney's fees.

Other sanctions:
a. Stay further proceedings until order is obeyed;
b. Dismiss the action or proceeding;
c. Arrest the disobedient party or his agent.

Note:
The Republic of the Philippines cannot be required to pay expenses and attorney's fees under this Rule.
The matter of how and when the above sanctions should be applied is one that primarily rests on the sound
discretion of the court where the case is pending.

RULE 30. TRIAL

It is an examination before a competent court or tribunal of the facts or law put in issue in a case for the
purpose of determining such issue.
In a limited sense, trial refers to the stage of a case when the parties present their evidence before the
court up to the point when the case is deemed submitted for decision. (Riguera 2013)

General rule: Decision should not be made without trial.

Exceptions: When is there judgment without trial

1. Judgment on the pleading (Rule 34);
2. Summary judgment (Rule 35);
3. Judgment on compromise;
4. Judgment by confession;
5. Dismissal with prejudice (Rule 17);
6. Judgment under Rule on Summary Procedure;
7. Stipulation of facts. (Sec. 6 Rule 30)

Notice of Trial (Rule 30, Sec.1)

The clerk shall notify the parties of the date of trial, upon entry of the case in the trial calendar in such manner as shall
ensure their receipt of that notice at least 5 days before such date.

Adjournments and postponements (Rule 30, Section 2)

General rule: A court may adjourn a trial from day to day, and to any stated time

Limitations: The court shall have no power to:

1. Adjourn a trial for more than 1 month for each adjournment; or
2. More than 3 months in all; except when authorized in writing by the court administrator, the Supreme
Court.

Exception: The court can go beyond the period provided by law when authorized in writing by the Court
Administrator of the Supreme Court.

Requisites of motion to postpone trial

a) For absence of evidence

A motion to postpone a trial on the ground of absence of evidence can be granted only upon
affidavit showing the materiality or relevancy of such evidence, and that due diligence has been used to
procure it. But if the adverse party admits the facts to be given in evidence, even if he objects or reserves
the right to object to their admissibility, the trial shall not be postponed. (Rule 30, Sec.3)

b) For illness of party or counsel

A motion to postpone a trial on the ground of illness of a party or counsel may be granted if it
appears upon affidavit or sworn certification that the presence of such party or counsel at the trial is
indispensable and that the character of his illness is such as to render his non-attendance excusable.

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 (Rule 30, Sec.4)

Agreed statement of facts

The parties to any action may agree, in writing, upon the facts involved in the litigation, and submit the
case for judgment on the facts agreed upon, without the introduction of evidence.

If the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts in
such order as the court shall prescribe. (Rule 30, Sec.6)

Exceptions: Judgment based on stipulation of facts is not allowed in actions for declaration of nullity of marriage,
annulment of marriage and legal separation. (Riguera 2013, citing Arts. 48 & 60, Family Code)

Order of trial; reversal of order

Subject to the provisions of section 2 of Rule 31, and unless the court for special reasons otherwise
directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

a) The plaintiff shall adduce evidence in support of his complaint;

b) The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and
third-party complaints;
c) The third-party defendant if any, shall adduce evidence of his defense, counterclaim, cross-claim and
fourth-party complaint;
d) The fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;
e) The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in
support of their defense, in the order to be prescribed by the court;
f) The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons
and in the furtherance of justice, permits them to adduce evidence upon their original case; and
g) Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court
directs the parties to argue or to submit their respective memoranda or any further pleadings.

If several defendants or third-party defendants, and so forth, having separate defenses appear by
different counsel, the court shall determine the relative order of presentation of their evidence. (Rule 30,
Sec.5)

Trial in reverse – defendant presents evidence ahead of the plaintiff.

When proper
If the defendant instead of filing a motion to dismiss files an answer, invoking the ground as an
affirmative defense.

RULE 31. Consolidation or severance of hearing or trial

Consolidation.

When actions involving a common 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 may order all the actions consolidated,
and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
(Rule 31, Section 1)

Separate trials.

The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim,
cross-claim, counterclaim, or third-party complaint, or of any separate issue or of any number of claims, cross-
claims, counterclaims, third-party complaints or issues. (Rule 31, Section 2)

Delegation of reception of evidence

The judge of the court where the case is pending shall personally receive the evidence to be adduced by
the parties. However, in default or ex parte hearings, and in any case where the parties agree in writing, the court
may delegate the reception of evidence to its clerk of court who is a member of the bar. The clerk of court shall
have no power to rule on objections to any question or to the admission of exhibits, which objections shall be
resolved by the court upon submission of his report and the transcripts within ten (10) days from termination of
the hearing. (Rule 30, Section 9)

RULE 32. Trial by commissioners

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Who is a commissioner?

Commissioner is the person to whom a cause pending in court is referred, for him to take testimony, hear the
parties and report thereon to the court, and upon whose report, if confirmed, judgment is rendered.

Who are included under the term commissioner”

The word "commissioner" includes a referee, an auditor and an examiner. (Rule 32, Section 1)

a) Reference by consent or ordered on motion

By written consent of both parties, the court may order any or all of the issues in a case to be
referred to a commissioner to be agreed upon by the parties or to be appointed by the court. As used in
these Rules, the word "commissioner" includes a referee, an auditor and an examiner. (Rule 32, Section 1)

b) Powers of the commissioner

Subject to other specifications and limitations stated in the order, the commissioner has and shall
exercise the power to regulate the proceedings in every hearing before him and to do all acts and take all
measures necessary or proper for the efficient performance of his duties under the order. He may issue
subpoenas and subpoenas duces tecum, swear witnesses, and unless otherwise provided in the order of
reference, he may rule upon the admissibility of evidence. The trial or hearing before him shall proceed
in all respects as it would if held before the court. (Rule 32, Section 3)

c) Commissioner's report; notice to parties and hearing on the report

Report of commissioner

Upon the completion of the trial or hearing or proceeding before the commissioner, he shall file
with the court his report in writing upon the matters submitted to him by the order of reference. When
his powers are not specified or limited, he shall set forth his findings of fact and conclusions of law in his
report. He shall attach thereto all exhibits, affidavits, depositions, papers and the transcript, if any, of the
testimonial evidence presented before him. (Rule 32,Section 9)

Notice to parties of the filing of report.

Upon the filing of the report, the parties shall be notified by the clerk, and they shall be allowed
ten (10) days within which to signify grounds of objections to the findings of the report, if they so desire.
Objections to the report based upon grounds which were available to the parties during the proceedings
before the commissioner, other than objections to the findings and conclusions therein, set forth, shall
not be considered by the court unless they were made before the commissioner. (Rule 32, Section 10)

Hearing upon report.

Upon the expiration of the period of ten (10) days referred to in the preceding section, the report
shall be set for hearing, after which the court shall issue an order adopting, modifying, or rejecting the
report in whole or in part, or recommitting it with instructions, or requiring the parties to present
further evidence before the commissioner or the court. (Rule 32, Section 11)

RULE 33. Demurrer to evidence

Definition – Demurrer to Evidence is an objection by one of the parties in an action, to the effect that the
evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or
sustain the issue. (Republic v. Spouses Gimenez, G.R. No. 174673, January 11, 2016)

 The court, in passing upon the sufficiency of the evidence raised in a demurrer, is merely required to
ascertain whether there is competent or sufficient evidence to sustain the indictment or to support a
verdict of guilt. Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in
character, weight or amount as will legally justify the judicial or official action demanded according to
the circumstances. To be considered sufficient therefore, the evidence must prove: (a) the commission of
the crime, and (b) the precise degree of participation therein by the accused. Thus, when the accused
files a demurrer, the court must evaluate whether the prosecution evidence is sufficient enough to
warrant the conviction of the accused beyond reasonable doubt." (Macapagal-Arroyo v. People, G.R. Nos.
220598 & 220953, July 19, 2016)
 A demurrer to evidence may be issued when, upon the facts and the law, the plaintiff has shown no
right to relief. Where the plaintiff's evidence together with such inferences and conclusions as may
reasonably be drawn therefrom does not warrant recovery against the defendant, a demurrer to

39 | P a g e
 evidence should be sustained. A demurrer to evidence is likewise sustainable when, admitting every
proven fact favorable to the plaintiff and indulging in his favor all conclusions fairly and reasonably
inferable therefrom, the plaintiff has failed to make out one or more of the material elements of his case,
or when there is no evidence to support an allegation necessary to his claim. It should be sustained
where the plaintiff's evidence is prima facie insufficient for a recovery. (Republic v. Spouses Gimenez, G.R.
No. 174673, January 11, 2016)

Effect of denial

1. Defendant shall have the right to present evidence. (Rule 33, Section 1)
2. The date for reception of defendant's evidence should be set.
3. The order is interlocutory and therefore not appealable but can be subject of petition for certiorari in
case of grave abuse of discretion or oppressive exercise of judicial authority.

Effect of grant

1. The case shall be dismissed. (Rule 33, Section 1)

2. The appellate court should render judgment on the basis of the evidence submitted by the plaintiff.
3. If, on appeal, the order of dismissal is reversed, the movant shall be deemed to have waived his right to
present evidence. In practical terms, this means that the plaintiff already wins the case since the
appellate court should forthwith render judgment for the plaintiff on the basis of his evidence alone.
(Riguera 2013)

If the motion is granted but on appeal the order of dismissal is reversed he shall be deemed to have
waived the right to present evidence. (Rule 33, Section 1)

DEMURRER TO EVIDENCE IN CIVIL CASES AS DISTINGUISHED FROM THAT OF CRIMINAL CASES

CIVIL CASE CRIMINAL CASES

Leave of court is not required before filing a It may be filed with or without leave of
demurrer. court (Sec. 23, Rule 119).
If the demurrer is granted, the order of
dismissal is appealable (Sec. 1, Rule 33)
The order of dismissal is not appealable
But if on appeal, the appellate court reverses the
because of the constitutional policy against
order of dismissal, the defendant loses his
double jeopardy.
right to present evidence (Radiowealth vs.
Spouses Del Rosario, G.R. No. 138739, July 6,
2000).
Court denies the demurrer:
a. if demurrer was with leave, accused may
adduce evidence in his defense.

If the demurrer is denied, the defendant may b. if the demurrer was without leave, the
proceed to present his evidence. accused waives the right to present
evidence and submits the case for judgment
on the basis of the evidence for the
prosecution. (Macapagal-Arroyo v. People,
G.R. Nos. 220598 & 220953, July 19, 2016)

RULE 36. Judgments and final orders

What is a judgment?

It is the final consideration and determination by a court of the rights of the parties, upon matters submitted to
it in an action or proceeding.

Requisites of a Valid Judgment:

a) The court or tribunal must be clothed with authority to hear and determine the matter before it (Riano
2011 citing Acosta vs. COMELEC, 293 SRA 578, 580) The term "clothed with authority" includes jurisdiction
over the subject matter of the case and over the person of the defendant, or over the res, in an action in
personam or quasi in rem. (Riguera 2013)

b) Parties must have been given an opportunity to adduce evidence in their behalf (Riano 2011 citing Acosta

40 | P a g e
 vs. COMELEC, 293 SRA 578, 580). Indispensible parties should have been impleaded. (Riguera 2013)

c) It should be in writing. A verbal judgment is, in contemplation of law, not in esse, therefore, ineffective
(Riano 2011, citing Corpus vs. Sandiganbayan, 442 SCRA 294, 309);

d) It should contain a dispositive part (Riano 2011, citing Cu-Unjieng vs. Mabalacat Sugar Co., 70 Phil. 384)
and should be signed by the judge and filed with the clerk of court.

What is Findings of fact?

These are statement of facts and not conclusions of law. Statement of facts in judgment must contain not only
the ultimate facts. The supporting evidentiary facts must as well be established. This rule, however, does not
require that the court shall state in its decision all the facts found in the records. (Riano 2011, citing People vs.
Derpo, 168 SCRA 447, 455).

Contents of a judgment

a) The opinion of the court – Contains the findings of facts and conclusions of law;
b) The disposition of the case – The final and actual disposition of the rights litigated (the dispositive part);
and
c) Signature of the judge (Herrera, p. 145)

Judgment without trial

Default judgment –
A binding judgment in favor of either party based on some failure to take action by the other party.
Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has
failed to appear before a court of law.

It is a judgment granting the claimant such relief as his pleading may warrant after the defending party
fails to answer within the time allowed therefore, upon motion of the claiming party, with notice to the
defending party, and proof of such failure to answer. (Sec. 3 Rule 9)
 Judgments which are merely voidable cannot be collaterally attacked, and until set aside in a proper
proceeding for the purpose, possess all the attributes of valid judgments. The reason for the rule
prohibiting the making of a collateral attack on a judgment of a court having jurisdiction is that public
policy forbids an indirect collateral contradiction or impeachment of such a judgment. It is not a mere
technicality. Instead, it is a rule of fundamental and substantial justice which should be followed by all
courts. (Ching v. San Pedro College of Business Administration, G.R. No. 213197, October 21, 2015)

ENTRY OF JUDGMENT AND FINAL ORDER

When made?
If no appeal or motion for new trial or reconsideration is filed within the time provided in these Rules,
the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date
of finality of the judgment or final order shall be deemed to be the date of its entry. The record shall contain the
dispositive part of the judgment or final order and shall be signed by the clerk, within a certificate that such
judgment or final order has become final and executory. (Rule 36, Section 2)

Importance of Date of Entry

It is the starting point of the 6-month period for filing a petition for relief (Sec. 3 Rule 38), the 5-year
period for filing a motion for execution (Sec. 6 Rule 39), and the 10-year period for filing an action for revival of
judgment (Art. 1144 Civil Code). (Riguera 2013)

KINDS OF JUDGMENT:

Sin Perjuico Judgment

It is a judgment without statement of the facts in support of its conclusions. Such a judgment is void for
it violates Sec. 15, Article VIII of the Constitution. Thus, the party adversely affected would be unable to file a
motion for reconsideration or appeal the judgment for he has to speculate on the grounds upon which the judge
based his decision. (Riguera 2013)

Nunc Pro Tunc Judgment or Order

One rendered to record some judicial act done at a former time but which was not carried into the
record. Since the only function of a nunc pro tunc judgment or order is to place into the record a judicial action
actually taken, it cannot correct judicial errors, however flagrant and glaring these may be. (Riguera 2013, citing
Henderson vs. Tan, 87 Phil. 466), nor can it construe what a judgment means. (Ibid., citing Lichauco vs. Tan Po, 51

41 | P a g e
Phil. 862).

Several Judgments (Rule 36, Sec.4)

A judgment rendered by a court against one or more defendants, but not against all, leaving the action
to proceed against the others (Riano 2011, citing Sec.4 Rule 36)

Separate Judgments (Rule 36, Sec.5)

This kind of judgment presupposes that there are several claims for relief presented in a single action.
The court may render separate judgment on one of the several claims. The judgment will terminate the action
with respect to that claim and the action shall proceed as to the remaining claims. The court may stay the
execution of the separate judgment until the rendition of a judgment on all the other claims. (Riano 2011, citing
Sec. 5 Rule 36)

Memorandum decision
It is a decision of appellate court which adopts the true findings of fact and conclusion of fact and
conclusion of the trial court if it is affirming the latter's decision.

Appeal on Separate or Several Judgments

Appeal on either is not allowed unless the court allows the appeal. (Sec. 1(g) Rule 41).

Where an appeal is allowed, the same shall be taken by filing a notice of appeal and a record on appeal
within 30 days from notice of the order allowing the appeal. (Sec. 3 Rule 41).

Judgment against Entity without Juridical Personality (Rule 36, Sec. 6)

The judgment shall set out their individual or proper names if known.

Doctrine of Immutability of Judgments

The doctrine of immutability of judgment maintains that once a judgment has attained finality, the same
can no longer be changed or modified in any respect, either by the court that rendered it or by any other court.
(Gomeo Metal Corp. v. Court of Appeals, G.R. No. 202531, August 17, 2016)

 Under the doctrine of finality of judgment or immutability of judgment, a decision that has acquired
finality becomes immutable and unalterable, and may no longer be modified in any respect, even if the
modification is meant to correct erroneous conclusions of fact and law, and whether it be made by the
court that rendered it or by the Highest Court of the land. Any act which violates this principle must
immediately be struck down.”

 But like any other rule, it has exceptions, namely: (1) the correction of clerical errors; (2) the so-called
nunc pro tunc entries which cause no prejudice to any party; (3) void judgments; and (4) whenever
circumstances transpire after the finality of the decision rendering its execution unjust and inequitable.
(Gomeo Metal Corp. v. Court of Appeals, G.R. No. 202531, August 17, 2016 citing FGU Insurance v.
Regional Trial Court, 659 Phil. 117, 123 (2011))

Effects of finality of judgment:

a. The prevailing party is entitled to have the judgment executed as a matter of right and the
issuance of the corresponding writ of execution becomes a ministerial duty of the court.
b. The court rendering the judgment loses jurisdiction over the case so that it can no longer
correct the judgment in substance, except clerical errors and omissions due to inadvertence or
negligence.
c. Res judicata supervenes.

When a judgment or final order becomes final and executory?

A judgment becomes final and executory upon the expiration of the period to appeal therefrom and no
appeal has been perfected (Sec. 1 Rule 39)
The judgment attains finality by the lapse of the period for taking an appeal without such appeal or
motion for reconsideration being filed.

Doctrine of the law of the case

Law of the case has been defined as the opinion delivered on a former appeal, and means, more
specifically, that whatever is once irrevocably established as the controlling legal rule of decision between the
same parties in the same case continues to be the law of the case, whether correct on general principles or not, so
long as the facts on which such decision was predicated continue to be the facts of the case before the court.

The doctrine of law of the case simply means, therefore, that when an appellate court has once declared

42 | P a g e
the law in a case, its declaration continues to be the law of that case even on a subsequent appeal,
notwithstanding that the rule thus laid down may have been reversed in other cases. For practical
considerations, indeed, once the appellate court has issued a pronouncement on a point that was presented to it
with full opportunity to be heard having been accorded to the parties, the pronouncement should be regarded
as the law of the case and should not be reopened on remand of the case to determine other issues of the case,
like damages. But the law of the case, as the name implies, concerns only legal questions or issues thereby
adjudicated in the former appeal. (Development Bank of the Philippines (DBP) v. Guariña Agricultural and Realty
Development Corporation, G.R. No. 160758. January 15, 2014.)

FINAL JUDGMENT
A final judgment or order is one that finally disposes of a case, leaving nothing more to be done by the
Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the
trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a
judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once
rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and
liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties'
next move . . . and ultimately, of course, to cause the execution of the judgment once it becomes "final" or, to use
the established and more distinctive term, "final and executory."

INTERLOCUTORY
Conversely, an order that does not finally dispose of the case, and does not end the Court's task of
adjudicating the parties' contentions and determining their rights and liabilities as regards each other, but
obviously indicates that other things remain to be done by the Court, is "interlocutory," e.g., an order denying a
motion to dismiss under Rule 16 of the Rules . . . Unlike a "final" judgment or order, which is appealable, as
above pointed out, an "interlocutory" order may not be questioned on appeal except only as part of an appeal
that may eventually be taken from the final judgment rendered in the case. (Heirs of Dimaampao v. Alug, G.R. No.
198223, February 18, 2015)

Post-judgment remedies
Remedies against judgment or final orders:

Before finality
1) Motion for new trial or reconsideration (Rule 37)
2) Appeal
3) Reopening of the case

After finality
1) Relief from judgment (Rule 38)
2) Annulment of judgment (Rule 47)
3) Special Civil Action for Certiorari (Rule 65)
4) Collateral attack

RULE 35. Summary judgment

A determination made by a court without a full trial. Such judgment may be issued as to the merits of an
entire case, or of specific issues in that case.

A judgment rendered by a court without a full-blown trial, if the court finds that, except as to the
amount of damages, there is no genuine issue as to any material fact and the plaintiff or defendant is entitled to
a judgment as a matter of law. (Riguera 2013)

When available?

 For a full-blown trial to be dispensed with, the party who moves for summary judgment has the burden
of demonstrating clearly the absence of genuine issues of fact, or that the issue posed is patently
insubstantial as to constitute a genuine issue.

 Genuine issue means an issue of fact which calls for the presentation of evidence as distinguished from
an issue which is fictitious or contrived. (Republic v. Pilipinas Shell Petroleum Corp., G.R. No. 209324,
December 9, 2015)

Burden of proof
 The party who moves for summary judgment has the burden of demonstrating clearly the absence of
any genuine issue of fact, or that the issue posed in the complaint is patently unsubstantial so as not to
constitute a genuine issue for trial. Trial courts have limited authority to render summary judgments
and may do so only when there is clearly no genuine issue as to any material fact. When the facts as
pleaded by the parties are disputed or contested, proceedings for summary judgment cannot take the

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 place of trial. (Yap v. Siao, G.R. Nos. 212493 & 212504, June 1, 2016)

Requisites of a valid summary judgment:

a. Upon filing of a motion
b. After issues have been joined
c. The court finds that there is no genuine issue as to any material fact based on the pleadings,
supporting affidavits, depositions and admissions on file EXCEPT as to the amount of
damages.
d. The moving party is entitled to a judgment as a matter of law.

When NOT Proper?

In actions for:
a. Declaration of nullity of marriage
b. Annulment of marriage
c. Legal separation

Exhibits to Support the Motion for Summary Judgment

For the claimant

A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at
any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon all or any part thereof. (Rule 35, Section 1)

For the defendant

A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at
any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to
all or any part thereof. (Rule 35, Section 2)

When the case not fully adjudicated

If on motion under this Rule, judgment is not rendered upon the whole case or for all the reliefs sought and a
trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it
and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what
are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear
without substantial controversy, including the extent to which the amount of damages or other relief is not in
controversy, and directing such further proceedings in the action as are just. The facts so specified shall be
deemed established, and the trial shall be conducted on the controverted facts accordingly. (Rule 35, Section 4)

Partial Summary Judgment

A judgment not on the entire case but only on the specified factual issues, with the court proceeding to try the
other factual issues Note: Propriety of Summary Judgment may be corrected only on appeal or other direct
review, not by certiorari.

May a partial summary judgment be appealed separately from the judgment in the entire case?
No. A partial summary judgment as a rule is not appealable separately from the judgment in the entire
case, unless allowed by the court under Sec.1(f) Rule 41. Hence, the failure to appeal separately from a partial
summary judgment or to challenge it by a special civil action for certiorari does not make the same final and
executory. (Riguera 2013, citing Philippine Business Bank vs. Chua, 15 November 2010).

Partial summary judgment not to be considered a final judgment

Rule 35 on summary judgments, admits of a situation in which a case is not fully adjudicated on motion, and
judgment is not rendered upon all of the reliefs sought. In Philippine Business Bank v. Chua, we had occasion to
rule that a careful reading of its Section 4 reveals that a partial summary judgment was never intended to be
considered a "final judgment," as it does not "[put] an end to an action at law by declaring that the plaintiff
either has or has not entitled himself to recover the remedy he sues for." (Riguera 2013, citing Philippine Business
Bank vs. Chua, 15 November 2010).

Separate judgment allowed on entirely different subject matter after rendition of partial summary judgment

Section 4 of Rule 35 pertains to a situation in which separate judgments were necessary because some facts
existed without controversy, while others were controverted. However, there is nothing in this provision or in
the Rules that prohibits a subsequent separate judgment after a partial summary judgment on an entirely
different subject matter had earlier been rendered. There is no legal basis for petitioner's contention that a
judgment over the Swiss accounts bars a motion for summary judgment over the Arelma account. (Imelda
Romualdez- Marcos, Vs. Republic Of The Philippines, G.R. No. 189505)

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Affidavits and attachments

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated
therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or
served therewith. (Rule 35, Section 5)

Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to this Rule are
presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or
counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused
him to incur including attorney's fees, it may, after hearing further adjudge the offending party or counsel guilty
of contempt. (Rule 35, Section 6)

RULE 34. Judgment on the pleadings

A judgment on the pleadings is a judgment on the facts as pleaded, and is based exclusively upon the
allegations appearing in the pleadings of the parties and the accompanying annexes.

It is settled that the trial court has the discretion to grant a motion for judgment on the pleadings filed by a party
if there is no controverted matter in the case after the answer is filed.

 A genuine issue of fact is that which requires the presentation of evidence, as distinguished from a
sham, fictitious, contrived or false issue. (Comglasco Corp. v. Santos Car Check Center Corp., G. R. No.
202989, March 25, 2015)

Grounds:

1. When answer fails to tender an issue because of: a)general denial of material allegations of the
compliant; b) insufficient denial of the material allegations of the complaint; or
2. When answer admits the material allegation of the adverse party's pleading, the court, may, on motion
of that party, direct judgment on such pleading (Sec. 1, Rule 34)
3. Under the Rules on Summary Procedure, should the defendant fails to answer the complaint within 10
days from service of summons (Sec. 6 RSP);
4. Where the defendant is declared in default, the court shall proceed to render judgment granting the
claimant such relief as his pleading may warrant, unless the court in its discretion requires the claimant
to submit evidence (Sec. 3 Rule 9)
5. During pre-trial, the court may render a judgment on the pleadings if it finds a valid ground therefor.
(sec. 2(g) Rule 18).
6. As a penalty for non-compliance or refusal to answer in discovery proceedings, the court may render
judgment by default against the recalcitrant or disobedient party. (Secs. 3 & 5, Rule 29)(Riguera 2013)

When NOT Proper

1. When the answer raises an issue.

2. In actions for annulment of marriage or for legal separation, or declaration of nullity of marriage.
3. Issue is the amount of unliquidated damages (Sec. 11 Rule 8).
4. Only questions of law are being alleged.

Judgment on the Pleadings may be Rendered Only Upon Motion

A court may direct judgment on the pleadings only if there is a motion to that effect. (Sec.1 Rule 34) However,
trial court may render a judgment on the pleadings if, after the pre-trial, the facts warrant such a judgment
(Regalado, Tenth Edition, citing Taleon vs. Sec. of Public Works & Communication, L-24281, May 19, 1967)
Judgment on the pleadings distinguished from summary judgments

SUMMARY JUDGMENT JUDGMENT OF THE PLEADINGS

Based not only on the pleadings but also on Based solely on the pleadings, without
depositions, admissions and affidavits introduction of evidence
Generally available only to the plaintiff,
Available to both parties. unless the defendant presents a
counterclaim.
There may be issues involved in the case but The answer fails to tender an issue or there
these issues are irrelevant is an admission of material allegations

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 No genuine issue of fact to be tried except as
No issue of fact at all.
to the amount of damages.
10-day notice of hearing required 3-day notice of hearing required

RULE 37. Motion for new trial or reconsideration

Grounds for New Trial:

Within the period for taking an appeal, the aggrieved party may move the trial court to set aside the judgment
or final order and grant a new trial for one or more of the following causes materially affecting the substantial
rights of said party:

a. Fraud, accident, mistake or excusable negligence which ordinary prudence could not have guarded
against and by reason of which such aggrieved party has probably been impaired in his rights; or

b. Newly discovered evidence, which he could not, with reasonable diligence, have discovered and
produced at the trial, and which if presented would probably alter the result.

Grounds for Motion for Reconsideration:

Within the same period, the aggrieved party may also move for reconsideration upon the grounds that the
damages awarded are excessive, that the evidence is insufficient to justify the decision or final order, or that the
decision or final order is contrary to law. (Rule 37, Section 1)

What is the kind of fraud referred under Rule 37?

Fraud in Sec. 1(a) Rule 37 refers to extrinsic fraud, that is, deception or trickery by which the aggrieved party was
prevented from having trial or presenting his case before the court. (Riguera 2013)
What is intrinsic fraud?

Intrinsic Fraud refers to acts of a party during the trial which does not affect the presentation of the case (ex.
presentation of a forged promissory note). It is not a ground for new trial.

Denial of the motion; effect

A motion for new trial shall include all grounds then available and those not so included shall be deemed
waived. A second motion for new trial, based on a ground not existing nor available when the first motion was
made, may be filed within the time herein provided excluding the time during which the first motion had been
pending.

What is extrinsic fraud?

Extrinsic Fraud connotes any fraudulent scheme executed by the prevailing party outside of the trial against the
losing party who because of such fraud is prevented from presenting his side of the case (ex. prevent witness from
testifying). Fraud, as a ground for new trial, must be extrinsic or collateral, that is, it is the kind of fraud which
prevented the aggrieved party from having a trial or presenting his case to the court, or was used to procure the
judgment without fair submission of the controversy (Regalado).

When to file?

Motion for new trial or reconsideration must be filed within 15 days from notice of judgment and resolved by
the court within 30 days from submission for resolution.

Second motion for reconsideration not allowed

No party shall be allowed a second motion for reconsideration of a judgment or final order. (Rule 37, Section 5)

Grant of the motion; effect

If a new trial is granted in accordance with the provisions of this Rules the original judgment or final order shall
be vacated, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial,
insofar as the same is material and competent to establish the issues, shall be used at the new trial without
retaking the same. (Rule 37, Section 6)

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Remedy when motion is denied, fresh 15-day period rule

An order denying a motion for new trial or reconsideration is not appealed, the remedy being an appeal from
the judgment or final order. (Rule 37, Section 9)

 “To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to
appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the
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 Rule 40 governing appeals from the Municipal
Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts
to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals; and
Rule 45 governing appeals by certiorari to the Supreme Court. The new rule aims to regiment or make
the appeal period uniform, to be counted from receipt of the order denying the motion for new trial,
motion for reconsideration (whether full or partial) or any final order or resolution. (NATIONAL Power
Corporation V. The Provincial Treasurer Of Benguet, G.R. No. 209303. November 14, 2016 citing Neypes
v. CA, (GR 141524, September 14, 2005 )

RULE 38. Relief from judgments, orders and other proceedings

Relief from Judgments

A petition for relief is an equitable remedy and is allowed only in exceptional cases from final judgments or
orders where no other remedy is available (Regalado, 10th Ed., citing Palmores vs. Jimenez, 90 Phil. 773). It will not
be entertained if the proper remedy is appeal or certiorari (Ibid., citing Fajardo vs. Bayona, 98 Phil. 659).

Kinds of Relief from Judgments, Orders and other Proceedings

a. Relief from judgment, order or other proceedings (Rule 38, Sec.1)

b. Relief from denial of appeal (Rule 38, Sec.2)

Grounds for availing of the remedy

Judgment or final order entered against a party through: (FAME)

1. Fraud (extrinsic fraud),

2. Accident,
3. Mistake, or
4. Excusable negligence

and no other remedy is available.

Similar to a Motion for New Trial

Petition for Relief under Sec. 1 is similar to a motion for new trial on the ground of FAME, the difference being
that the motion for new trial under Rule 37 is filed before the judgment becomes final, while a petition for relief
in this section presupposes a final judgment or order (Riguera)

Time to file petition

A petition provided for in either of the preceding sections of this Rule must be verified, filed within sixty (60)
days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more
than six (6) months after such judgment or final order was entered, or such proceeding was taken (Rule 38, Sec.3)

RULE 39. EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS

 Execution contemplates the usual situation where a judgment is susceptible of enforcement the moment
it acquires the character of finality and a judgment becomes final and executory by operation of law, not
by judicial declaration.

 Execution is fittingly called the fruit and end of law, and aptly called the life of law.

 Execution is the process of the court for carrying its decree into effect. In an action to recover possession
of lands, as in this case, if the judgment is for the Plaintiff, the writ of execution will be an order to
deliver the possession to the Plaintiff. (Heirs of Guiambangan v. Municipality of Kalamansig, Sultan Kudarat,

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 G.R. 204899, July 27, 2016)

The appellate court may, on motion in the same case, when the interest of justice so requires, direct the
court of origin to issue the writ of execution.

When can a judgment be executed?

Once a judgment is issued by the court in a case, and that judgment becomes final and executory, the
principle of immutability of judgments automatically operates to bar any modification of the judgment. The
modification of a judgment requires the exercise of the court's discretion. At that stage — when the judgment
has become final and executory — the court is barred from exercising discretion on the case; the bar exists even
if the modification is only meant to correct an erroneous conclusion of fact or law as these are discretionary acts
that rest outside of the court's purely ministerial jurisdiction. (Spouses Tabalno v. Dingal, Sr., G.R. No. 191526,
October 5, 2015)

Under Supreme Court Circular No. 24-94, a Motion for the Issuance of a Writ of Execution must contain
a notice to the adverse party –
Execution shall issue as a matter of right, on motion, upon a judgment or order that disposes of
the action or proceeding upon the expiration of the period to appeal therefrom if no appeal has been
duly perfected.

If the appeal has been duly perfected and finally resolved, such execution may forthwith be
applied for in the lower court from which the action originated, on motion of the judgment obligee,
submitting therewith certified true copies of the judgment or judgments or the final order or orders
sought to be enforced and of the entry thereof, with notice to the adverse party.

The appellate court may, on motion in the same case, when the interest of justice so requires,
direct the court of origin to issue the writ of execution. (Pallada vs Rtc Of Kalibo, G.R. No. 129442. March
10, 1999)

General Rule
Where the judgment or order has become executory, the court cannot refuse to issue a writ of execution.

Exceptions

a. When the subsequent facts and circumstances transpire which render such execution unjust or
impossible;
b. On equitable grounds, as when there has been a change in the situation of the parties which makes the
execution inequitable (Albar v. Carandang, L-18003, 29 Sept. 1962);
c. Where the judgment has been novated by the parties (Dormitorio v. Fernandez, et al., L-25889, 21 Aug.
1976);
d. When a petition for relief or an action to enjoin the judgment is filed and a preliminary injunction is
prayed for and granted (see Sec. 5, Rule 38);
e. When the judgment has become dormant, the 5-year period under Sec. 6 of this Rule having expired
without the judgment having been revived (Cunanan v. CA, et al., L- 25511, 28 Sept. 1968); or
f. Where the judgment turns out to be incomplete (Del Rosario v. Villegas, 49 Phil. 634) or is conditional
since, as a matter of law, such judgment cannot become final. (Cu Unjieng, etc. v. Mabalacat Sugar Co., 70
Phil. 380) (Regalado).

EXECUTION PENDING APPEAL

 It bears emphasis that an execution pending appeal is deemed an exception to the general rule, which
allows an execution as a matter of right only in any of the following instances:
a. when the judgment has become final and executory;
b. when the judgment debtor has renounced or waived his right of appeal;
c. when the period for appeal has lapsed without an appeal having been filed; or
d. when, having been filed, the appeal has been resolved and the records of the case have been
returned to the court of origin. (Abenion v. Pilipinas Shell Petroleum Corp., G.R. Nos. 200749 &
208725, February 6, 2017)

 It is fundamental that every litigation must come to an end. While a litigant's right to initiate an action in
court is fully respected, once his case has been adjudicated by a competent court in a valid final
judgment, he should not be permitted to initiate similar suits hoping to secure a favorable ruling, for this
will result to endless litigations detrimental to the administration of justice. After all, the winning party
also has the correlative right to enjoy the finality of the resolution of his case by the execution and
satisfaction of the judgment, which is the "life of the law," as Acil in this case. (Vicente v. Acil Corp., G.R.
No. 196461, July 15, 2015)

PROVISIONAL REMEDIES

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 (ANCILLARY WRITS OR AUXILLARY REMEDIES)

KINDS OF PROVISIONAL REMEDIES

a. Preliminary Attachment
b. Preliminary Injunction
c. Receivership
d. Replevin
e. Support Pende Lite

 are writs and processes available during the pendency of an action to preserve and protect certain rights and
interests pending the result of the final judgment in the case. They are provisional because they constitute
temporary measures availed of during the pendency of the action, and ancillary because they are mere
incidents in and are dependent upon the result of the main action. (Regalado)

RULE 57. PRELIMINARY ATTACHMENT

NATURE: One issued at the commencement of the action or at any time before judgment as SECURITY for the
satisfaction of any judgment.

A writ of preliminary attachment is a provisional remedy issued upon the order of the court where an action is
pending. Through the writ, the property or properties of the defendant may be levied upon and held thereafter by the
sheriff as security for the satisfaction of whatever judgment might be secured by the attaching creditor against the
defendant. The provisional remedy of attachment is available in order that the defendant may not dispose of the
property attached, and thus prevent the satisfaction of any judgment that may be secured by the plaintiff from the
former. (G.R. No. 219345, Security Bank Corp v. Great Wall Commercial Press Co., Inc., January 30, 2017)

The writ of preliminary attachment is only a provisional remedy, which is not a cause of action in itself but is
merely adjunct to a main suit. (Ibid)

PURPOSE:
1. To seize the property of the debtor in advance of the final judgment and to hold it for purposes of
satisfying the said judgment.
2. To enable the court to acquire jurisdiction over the action by the actual or constructive seizure of the
property in instances where summons cannot be effected.

GROUNDS:

a. Recovery of a specified amount of money or damages, other than moral or exemplary on a cause of action
arising from law, contact, quasi-contract, delict or quasi-delict.

(Hence cannot be issued for moral and exemplary damages and other unspecified or unliquidated claims
(Insular Savings Bank vs. Court of Appeals, 460 SCRA 122)

Action for money or property embezzled ( fraudulent misapplication or conversion)

b. Recovery of property unjustly or fraudulently taken, detained or converted (defendant here has concealed,
removed or disposed of the property for the purpose of preventing its being found or taken by the
applicant or authorized person).

c. Fraud in contracting or performing an obligation the fraudulent act itself is the incipient cause of
defraudation, i.e., issuing a bum check in exchange for a merchandise. This will include both dolo causante and
dolo incidente.

o Fraud is never presumed; it must be averred i n the Affidavit of merit with particularity. (Watercraft
Venture vs. Alfred Raymond Wolfe, G.R.No. 181721, September 9, 2015).

o While fraud cannot be presumed, it need not be proved by direct evidence and can well be inferred
from attendant circumstances. Fraud by its nature is not a thing susceptible of ocular observation or
readily demonstrable physically; it must of necessity be proved in many cases by inferences from
circumstances shown to have been involved in the transaction in question. (G.R. No. 219345, Security
Bank Corp v. Great Wall Commercial Press Co., Inc., January 30, 2017)

d. Removal or disposal of property with intent to defraud ( the plaintiff or the creditor)

e. Where the adverse party does not reside and is not found in the Philippines, or on whom summons may be
served by publicaton.

o Grounds under Rule 57 are specific and exclusive; non- reliance thereon may expose the Judge to
charge of abuse of discretion under Rule 65 and may result to the lifting or discharge of the
attachment.

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REQUIREMENTS:

a. AFFIDAVIT – which must contain all the allegations required and the circumstances on why it should be
granted. need not be executed by the applicant. It may be executed by other persons who know the facts.

CONTENTS:
1. that a sufficient cause of action exists;
2. that the case is one of those mentioned in Section 1 17 hereof;
3. that there is no other sufficient security for the claim sought to be enforced by the action; and
4. that the amount due to the applicant, or the value of the property the possession of which he is entitled to
recover, is as much as the sum for which the order is granted above all legal counterclaims. (G.R. No.
181721, Watercraft Venture Corp. v. Wolfe, September 9, 2015)

The sufficiency or insufficiency of an affidavit depends upon the amount of credit given it by the judge,
and its acceptance or rejection, upon his sound discretion. (Ibid)

b. BOND – answers for all damages incurred by the party against whom the attachment was issued.

Requisites:
1. Note that there is nothing in the Rules which require a specific amount. Practice has always been that the
same should at least be equivalent to the sum total of the obligation.

2. Could be Cash, Surety, Corporate or Property, propriety of which shall always be addressed to the
sound discretion of the Court.

ISSUANCE AND CONTENTS OF THE ORDERS

a. Are solved against the applicant in case of doubt; onus of proving the existence of the ground lies with the
applicant
b. while ordinarily applied for at the inception of the case, this is actually available at any time before
judgment
c. may be issued ex- parte ( Section 2, Rule 57) or with notice and hearing at the court’s discretion; ex-parte in
cases of extreme urgency and so as to preempt any possible disposition of the property by the adverse party
to the detriment of the attaching creditor ( Mindanao Savings and Loan Association, Inc. vs. CA ( 172 SCRA 480)

 For the issuance of an ex-parte issuance of the preliminary attachment to be valid, an affidavit of merit and an
applicant's bond must be filed with the court 14 in which the action is pending. (G.R. No. 181721, Watercraft
Venture Corp. v. Wolfe, September 9, 2015)

DURATION OF THE ATTACHMENT:

Addressed to the sound discretion of the court but this could sometimes extend up to judgment, in which
case, the preliminary nature of the attachment could become final.

REMEDIES AGAINST ATTACHMENT:

a. Posting of Counterbond;
b. Lifting or Discharge due to an improvident issuance ; in both instances, a hearing is required.

Contemporaneous Service of the following:

a. Copy of the Complaint;

b. Summons;
c. Order granting the Writ;
d. Writ itself

Strict Compliance for:

a. Conduct of Summary Hearing;

b. Motion to Discharge not allowed to dwell on the merits or matters of defense; attention solely focused on
the propriety of the Order granting the Writ.

GROUNDS FOR DISCHARGE OR DISSOLUTION OF A WRIT OF ATTACHMENT

a. the debtor has posted a counter-bond or has made the requisite cash deposit;
b. the attachment was improperly or irregularly issued as where there is no ground for attachment, or the
affidavit and/or bond filed therefor are defective or insufficient;
c. the attachment is excessive, but the discharge shall be limited to the excess;
d. the property attachment is exempt from preliminary attachment; or
e. the judgment is rendered against the attaching creditor. (G.R. No. 187922, Marphil Export Corp. V. Allied
Bank Corp., September 21, 2016)

50 | P a g e
TERCERIA in Attachment
The aggrieved third party may also avail himself of the remedy of "terceria" by executing an affidavit of his
title or right of possession over the property levied on attachment and serving the same to the office making the levy
and the adverse party. Such party may also file an action to nullify the levy with damages resulting from the
unlawful levy and seizure, which should be a totally separate and distinct action from the former case. The
abovementioned remedies are cumulative and any one of them may be resorted to by one third-party claimant
without availing of the other remedies. (G.R. No. 124642, Ching v. Court of Appeals, February 23, 2004)

RULE 58. PRELIMINARY INJUNCTION

NATURE: A judicial writ, process, or proceedings whereby a party is ordered to do or refrain from doing a particular
act.

 The possibility of irreparable damage without proof of an actual existing right is not a ground for a
preliminary injunction. (G.R. No. 182944, DPWH v. City Advertising Ventures Corp., November 9, 2016)

 Preceded most often by a TRO (note that a WPI is not necessarily preceded by a TRO which is intended
merely to preserve the Status Quo)

PURPOSE:
a. to preserve the status quo or to prevent future wrongs in order to preserve, and
b. protect the interests of the petitioners during the pendency of the action. (Novecio v. Lim, G.R. No. 193809,
March 23, 2015)

REQUISITES (Section 3)

The following requisites must be proved before a writ of preliminary injunction will issue:

a. The applicant must have a clear and unmistakable right to be protected, that is, a right in esse;
b. There is a material and substantial invasion of such right;
c. There is an urgent need for the writ to prevent irreparable injury to the applicant; and,
d. No other ordinary, speedy, and adequate remedy exists to prevent the infliction of irreparable injury. (G.R.
Nos. 205875 & 208916, Liberty Broadcasting Network, Inc. v. Atlocom Wireless System, Inc., June 30, 2015)

 “ irreparable injury” means such injury which is not capable of pecuniary or monetary calculation or where
amount is not identified or quantified.

 In satisfying these requisites, parties applying for a writ of preliminary injunction need not set out their
claims by complete and conclusive evidence. Prima facie evidence suffices:

It is crystal clear that at the hearing for the issuance of a writ of preliminary injunction, mere
prima facie evidence is needed to establish the applicant's rights or interests in the subject matter of the
main action. It is not required that the applicant should conclusively show that there was a violation
of his rights as this issue will still be fully litigated in the main case. Thus, an applicant for a writ is
required only to show that he has an ostensible right to the final relief prayed for in his complaint.

Spouses Nisce v. Equitable PCI Bank (545 Phil. 138 (2007) discussed the requisites, vis-a-vis the proof
required, for issuing a writ of preliminary injunction:

The plaintiff praying for a writ of preliminary injunction must further establish that he or she has a
present and unmistakable right to be protected; that the facts against which injunction is directed
violate such right; and there is a special and paramount necessity for the writ to prevent serious
damages. In the absence of proof of a legal right and the injury sustained by the plaintiff, an order for
the issuance of a writ of preliminary injunction will be nullified. Thus, where the plaintiff's right is
doubtful or disputed, a preliminary injunction is not proper. The possibility of irreparable damage
without proof of an actual existing right is not a ground for a preliminary injunction.

However, to establish the essential requisites for a preliminary injunction, the evidence to be
submitted by the plaintiff need not be conclusive and complete. The plaintiffs are only required to
show that they have an ostensible right to the final relief prayed for in their complaint. A writ of
preliminary injunction is generally based solely on initial or incomplete evidence. Such evidence need
only be a sampling intended merely to give the court an evidence of justification for a preliminary
injunction pending the decision on the merits of the case, and is not conclusive of the principal action
which has yet to be decided. (G.R. No. 182944, DPWH v. City Advertising Ventures Corp., November 9,
2016)

 Hearing is always required per Section 5 of Rule 58 unlike in Attachment which could be issued ex-parte or
after due notice. However, if on the face of the pleadings, the applicant for WPI is not entitled thereto, courts
may outrightly deny the motion without conducting a hearing for the purpose. Courts are disinclined to

51 | P a g e
 impose a mandatory hearing requirement on applications for injunction that are prima facie palpably without
merit or impossible to grant. To impose the mandatory hearing requirement will be an undue imposition on
the overly burdened trial courts. Otherwise, our trial courts will be forced to hear out the sort of litigation-
happy attention-deprived miscreants who abuse the judicial processes by filing complaints against real or
imaginary persons based on trivial or inexistent slights. ( New Sound Broadcasting Network Inc. and Consolidated
Broadcasting System, inc. v. Hon. Cesar Dy et. al. G.R. Nos. 170270, April 2, 2009.)

Prior Notice is indispensable for the issuance of a writ of Preliminary Injunction and a Temporary Restraining Order.

Exception:
If the matter is of extreme urgency and the applicant may suffer injustice and injury, the court may issue an
ex parte TRO effective for only seventy-two (72) hours from issuance, renewable after summary hearing for a period
not exceeding twenty (20) hours which includes the original 72 hours if previously granted. (Sec. 5, Rule 58)

Note on 72-hour TRO

- This is to be issued by the Executive Judge alone in multiple sala station courts. The regular Judge is
not mandated to extend the said 72- hours TRO which in the first place must have been justified by an
extreme urgency as determined by the Judge.

 Note that under the current Supreme Court Circular, the duration of the WPI shall not exceed 6 months from
its issuance. In which case, the trial court is thus expected to dispose or decide the main case within the same
period, otherwise, this may subject the Judge to administrative sanctions.

Preliminary Mandatory Injunction in cases cognizable by the MTC

( to restore the status quo in ejectment cases and to preserve that status quo which has been restored)

Preliminary Injunction in a Petition for Relief from Judgment under Rule 38.

Prohibitions of TRO or WPI in government projects ( under RA 8975, an Act to Ensure the expeditious implementation
and completion of government projects) under the following cases:

a. Acquisition, clearance and development of the right-of-way and or site/ location of any national government
project;
b. Bidding or awarding of contracts of the national government;
c. Commencement, execution of any such contract or project;
d. Termination or rescission of such contract/ project/ undertaking or authorization of any other lawful activity
necessary for such contract or project.

Important note:

Trial courts are enjoined from issuing orders releasing imported articles impounded by the Bureau of Customs. It is
settled in jurisprudence that the Collector of Customs has exclusive jurisdiction over seizure and forfeiture
proceedings and regular courts cannot interfere therewith or stifle and put it to naught. ( Zuno vs. Cabredo, 402
SCRA 75.)

RULE 59. RECEIVERSHIP

Who is a receiver?
 A person appointed by the court in behalf of all the parties to an action for the purpose of preserving the
property involved in the suit and to protect the rights of all the parties under the direction of the court.

 The general rule is that neither party to a litigation should be appointed as receiver without the consent of the
other because a receiver should be a person indifferent to the parties and should be impartial and
disinterested. The receiver is not the representative of any of the parties but of all of them to the end that their
interests may be equally protected with the least possible inconvenience and expense. (Commodities Storage
& Ice Plant Corporation v. Court of Appeals, 340 Phil. 551 (1997)

 Receiver must be someone who is totally disinterested or detached to the case, he is not the agent or is acting
for and in behalf of any of the litigants.

PURPOSE:

 Primarily intended to prevent dissipation or wastage of assets; object is the property subject of the pr
oceedings; can be applied for at the commencement of the action, pendency of the action, appeal or execution
proceedings.

 Cannot be granted in a mere suit for collection of a sum of money, there must be an allegation of dissipation
or wastage of assets

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Appointment of Receiver
 Receiver must up a Bond (before and after) in light of the numerous tasks that he is expected to discharge.
(Sec. 2)
 Receiver shall be sworn to perform all his duties faithfully. (Sec. 4)

GENERAL POWERS OF RECEIVER (Sec. 6)

a. to bring and defend, in such capacity, action in his own name;
b. to take and keep possession of the property in controversy;
c. to receive rents;
d. to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he
is the receiver;
e. to compound for and compromise the same;
f. to make transfer;
g. to pay outstanding debts;
h. to divide the money and other property that shall remain among the persons legally entitled to receive the
same;
i. and generally to do such acts respecting the property as the court may authorize.

However, funds in the hands of a receiver may be invested only by order of the court upon the written
consent of all the parties to the action.

No action may be filed by or against a receiver without leave of the court which appointed him.

ACTION AGAINST THE RECEIVER

The rule which requires leave of the appointing court before an action may be maintained against a receiver, is true
only when the receivership is still pending. (National City Bank of New York v. New York Tong Lin & Marine
Insurance Co. 067 Phil 544 (1939)

RULE 60. REPLEVIN

Replevin is an action whereby the owner or person entitled to repossession of goods or chattels may recover those
goods or chattels from one who has wrongfully distrained or taken, or who wrongfully detains such goods or
chattels. (Malayan Insurance Company, Inc. v. Alibudbud, G.R. No. 209011, April 20, 2016)

PURPOSE
 It is designed to permit one having right to possession to recover property in specie from one who has
wrongfully taken or detained the property. The term may refer either to the action itself, for the recovery of
personalty, or to the provisional remedy traditionally associated with it, by which possession of the property
may be obtained by the plaintiff and retained during the pendency of the action." (Ibid)

 Can be availed of at any time at the commencement of the action or at any time before answer

Requirements:

a. Affidavit of Merit- Which must set forth the circumstances relied upon;
b. Bond – Which must be twice the value of the property sought to be replevied.)

The applicant need not be the owner; it is enough that he is entitled to its possession ( Yang vs. Valdez, 177 SCRA
141)

TERCERIA in Replevin

 It is similar to third-party claims in Attachment and Execution under Rule 39. This is the instance where the
implementation of the writ shall not push through if the third-party claimant presents or executes an
Affidavit of Title. Court action; need for an indemnity bond.

 No implementation of the writ of replevin in properties under custodia legis as distinguished from
attachment. Reason for this, if it would be otherwise, there would be interference with the possession of the
property before the function of the law had been performed as to the process under which the property was
taken ( Chua vs. Court of Appeals, 222 SCRA 85).

 Judgment could be in the alternative: delivery of the property itself or judgment for a sum of money; note
that the plaintiff may refuse to receive the property replevied under certain conditions.

 The Court ruled in Navarro v. Escobido (G.R. No. 153788, November 27, 2009) that prior demand is not a
condition precedent to an action for a writ of replevin, since there is nothing in Section 2, Rule 60 of the Rules
of Court that requires the applicant to make a demand on the possessor of the property before an action for a
writ of replevin could be filed. (G.R. No. 182963, June 3, 2013)

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RULE 61. SUPPORT PENDENTE LITE (ALIMONY)

PURPOSE:
a. To compel adverse party to provide support while action is pending in court;
b. No bond is required from the applicant;
c. The application must be verified and shall be set for hearing not more than three (3) days from filing of the
petition.

In Lim-Lua v. Lua, (G.R. No. 175279-80, June 5, 2013) the Supreme Court held:

Judicial determination of support pendente lite in cases of legal separation and petitions for declaration of
nullity or annulment of marriage are guided by the following provisions of the Rule on Provisional Orders.

Sec. 2. Spousal Support. — In determining support for the spouses, the court may be guided by the
following rules:

a. In the absence of adequate provisions in a written agreement between the spouses, the
spouses may be supported from the properties of the absolute community or the conjugal
partnership.

b. The court may award support to either spouse in such amount and for such period of time as
the court may deem just and reasonable based on their standard of living during the
marriage.

c. The court may likewise consider the following factors: (1) whether the spouse seeking
support is the custodian of a child whose circumstances make it appropriate for that spouse
not to seek outside employment; (2) the time necessary to acquire sufficient education and
training to enable the spouse seeking support to find appropriate employment, and that
spouse's future earning capacity; (3) the duration of the marriage; (4) the comparative
financial resources of the spouses, including their comparative earning abilities in the labor
market; (5) the needs and obligations of each spouse; (6) the contribution of each spouse to
the marriage, including services rendered in home-making, child care, education, and career
building of the other spouse; (7) the age and health of the spouses; (8) the physical and
emotional conditions of the spouses; (9) the ability of the supporting spouse to give support,
taking into account that spouse's earning capacity, earned and unearned income, assets, and
standard of living; and (10) any other factor the court may deem just and equitable.

d. The Family Court may direct the deduction of the provisional support from the salary of the
spouse.

Sec. 3. Child Support. — The common children of the spouses shall be supported from the
properties of the absolute community or the conjugal partnership.

Subject to the sound discretion of the court, either parent or both may be ordered to
give an amount necessary for the support, maintenance, and education of the child. It shall be
in proportion to the resources or means of the giver and to the necessities of the recipient.

In determining the amount of provisional support, the court may likewise consider
the following factors: (1) the financial resources of the custodial and non-custodial parent and
those of the child; (2) the physical and emotional health of the child and his or her special
needs and aptitudes; (3) the standard of living the child has been accustomed to; (4) the non-
monetary contributions that the parents will make toward the care and well-being of the
child.

The Family Court may direct the deduction of the provisional support from the
salary of the parent.

The support granted may be in money or other forms in accordance with Article 194 of the
Family Code, which provides as follows, (all in keeping with the financial capacity of the family):

a. Everything indispensable for sustenance;

b. Dwelling;
c. Clothing;
d. Medical attendance;
e. Education; and,
f. Transportation

Note the variable nature of an Order granting Support Pendente Lite to the changing capacity of the
giver and the equally changing needs of the recipient.

Who may ask for support?

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 By express provision of Section 1 of Rule 61, any party , not only the plaintiff, may apply for such as long as
there are legal grounds to support such application.

When is it filed?
Can be applied for at the commencement of the action or at any time before judgment.

PROCEDURE:

1. a verified application shall be filed, stating the grounds and the financial conditions of the parties;
2. must be supported by affidavits, depositions or other authentic documents in support thereof.

NOTES:

 If the right to support is put in issue in the pleadings or the fact from which the right to support arises has not
been established, the Court cannot grant support pendent lite. (Francisco vs. Zulueta, 61 Phil. 752)

 Support Pendente Lite in a criminal case which resulted to the birth of an offspring. It is important that what is
pending is a criminal case and the civil aspect thereof is likewise instituted therein and has not been the
subject of reservation or waiver .

o Note very well that here, the movant for Support pendente lite is available notwithstanding the fact
that there is no conviction yet. Also, the remedies of restitution and reimbursement under Rule 39
become available once it is determined that there is no right to support ( i.e., accused is acquitted).

o Order of execution: upon motion or motu proprio; could also result to contempt citation.

 Execution upon motion of a third person ( Section 5, Rule 61).

DEPOSIT or Escrow ( by virtue of jurisprudence, Reyes vs. Lim, 408 SCRA 560).

 allowed as a provisional remedy in the exercise of the court’s equity jurisdiction: In an action for Specific
Performance and Nullification of Sale and title plus damages, the buyer moved that the seller be ordered to
deposit with the cashier of the trial court the P10 Milion downpayment on the land by the buyer to prevent
the dissipation of the amount pending the resolution of the case.

OTHER PROVISIONAL REMEDIES:

1. Under the Rule on the Writ of Amparo ( TPO, WPO, IO, PO);
2. Special Provisional Remedies under RA 8369 or Family Court Cases
3. Seizure and Sequestration Orders under the Human Security Act preventing terrorism;
4. Protection Order and Barangay Protection Order in VAWC cases ( RA 9262);
5. Freezing of Monetary Instrument or Property, or Authority to Inquire into Bank Deposits under AMLA
Cases;
6. Stay Order in Corporate Rehabilitation
7. TEPO in Environmental Cases.

SPECIAL CIVIL ACTION

What is a Special Civil action?

It is one which also governed by the rules for ordinary civil actions, but subject to the specific rules prescribed for a
special civil action.

Special civil actions initiated by filing of a Petition:

1. Declaratory relief other than similar remedies;

2. Review of adjudication of the COMELEC and COA;
3. Certiorari, prohibition and mandamus;
4. Quo warranto; and
5. Contempt

Special civil actions initiated by filing of a Complaint:

55 | P a g e
 1. Interpleader;
2. Expropriation;
3. Foreclosure of real estate mortgage;
4. Partition; and
5. Forcible entry and unlawful detainer.

INTERPLEADER (RULE 62)

Interpleader is a special civil action filed by a person against whom two conflicting claims are made upon the same
subject matter and over which he claims no interest, to compel the claimants to interplead and to litigate their
conflicting claims among themselves (Sec. 1).

Interpleader is a person who has property in his possession or an obligation to render, wholly or partially without
claiming any right therein, or an interest in which in whole or in part is not disputed by the claimants, comes to court
and asks that the persons who consider themselves entitled to demand compliance with the obligation be required to
litigate among themselves in order to determine finally who is entitled to the same.

► An interpleader complaint may be filed by a lessee against those who have conflicting claims over the rent due for
the property leased. This remedy is for the lessee to protect him or her from "double vexation in respect of one
liability." He or she may file the interpleader case to extinguish his or her obligation to pay rent, remove him or her
from the adverse claimants' dispute, and compel the parties with conflicting claims to litigate among themselves. (Lui
Enterprise, Inc. v. Zuellig Pharma Corp., G.R. No. 193494, March 12, 2014)

An action of interpleader is afforded to protect a person not against double liability but against double vexation in
respect of one liability. (RCBC v. Metro Container Corp., G.R. No. 127913, September 13, 2001)

Requisites for interpleader

(1) There must be two or more claimants with adverse or conflicting interests to a property in the custody or
possession of the plaintiff;

(2) The plaintiff in an action for interpleader has no claim upon the subject matter of the adverse claims or if he has an
interest at all, such interest is not disputed by the claimants;

(3) The subject matter of the adverse claims must be one and the same; and

(4) The parties impleaded must make effective claims.

When to file

Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no
interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he
may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims
among themselves (Sec. 1).

RULE 63. DECLARATORY RELIEFS AND SIMILAR REMEDIES

An action for declaratory relief is brought to secure an authoritative statement of the rights and obligations of
the parties under a contract or a statute for their guidance in the enforcement or compliance with the same (Meralco
vs. Philippine Consumers Foundation, 374 SCRA 262).

PURPOSE:

 [T]he purpose of an action for declaratory relief is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, or contract for their guidance in the enforcement thereof, or
compliance therewith, and not to settle issues arising from an alleged breach thereof. (Aquino v. Municipality
of Malay Aklan, G.R. No. 211356, September 29, 2014)

 A petition for declaratory relief gives a practical remedy for ending controversies that have not reached the
state where another relief is immediately available; and supplies the need for a form of action that will set
controversies at rest before they lead to a repudiation of obligations, an invasion of rights, and a commission
of wrongs. (Ibid)

WHO MAY FILE?

By one "whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental
56 | P a g e
regulation. (Sec. 1)

SUBJECT MATTER IN A PETITION FOR DECLARATORY RELIEF:

1. Deed;
2. Will;
3. Contract or other written instrument;
4. Statute;
5. Executive order or regulation;
6. Ordinance; or
7. Any other governmental regulation (Sec. 1).

WHEN FILED?

The petition for declaratory relief is filed before there occurs any breach or violation of the deed, contract,
statute, ordinance or executive order or regulation. (Sec. 1) The trial court has no jurisdiction over the petition for
declaratory relief if the statute, deed, contract, etc, has already been breached. When a court assumed jurisdiction over
a Petition for declaratory relief when there was already a breach of the subject instrument or government regulation,
the orders made by that court would be null and void for want of jurisdiction. (Department of Finance v. Dela Cruz,
Jr., G.R. No. 209331, August 24, 2015 citing Tambunting, Jr. v. Spouses Sumabat (507 Phil. 94 (2005))

ESSENTIAL REQUISITES

1. there must be a justiciable controversy;

2. the controversy must be between persons whose interests are adverse; and
3. the party seeking declaratory relief must have a legal interest in the controversy. (Macasiano v. NHA, G.R.
No. 107921, July 1, 1993)
4. The issue is ripe for judicial determination (Republic vs. Orbecido III, 472 SCRA 114, 2005).

WHEN COURT MAY REFUSE TO MAKE JUDICIAL DECLARATION

Except in actions falling under the second paragraph of section 1 of this Rule, the court, motu proprio or upon
motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision
would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration
or construction is not necessary and proper under the circumstances. (Sec. 5)

CONVERSION INTO ORDINARY ACTION

If before the final termination of the case, a breach or violation of an instrument or a statute, executive order
or regulation, ordinance, or any other governmental regulation should take place, the action may thereupon be
converted into an ordinary action, and the parties shall be allowed to file such pleadings as may be necessary or
proper. (Sec. 6)

REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON

ELECTIONS AND THE COMMISSION ON AUDIT (RULE 64)

1. A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may
be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65 (Sec. 2). The filing of a
petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be
reviewed, unless the SC directs otherwise upon such terms as it may deem just (Sec. 8).

2. Decisions of the Civil Service Commission shall be appealed to the Court of Appeals which has exclusive
appellate jurisdiction over all judgments or final orders of such commission (RA 7902).

3. The petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution
sought to be reviewed. The filing of a motion for new trial or reconsideration of said judgment or final order
or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period
herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period,
but which shall not be less than five (5) days in any event, reckoned from notice of denial (Sec. 3).

Distinction in the application of Rule 65 to judgments of the COMELEC and COA and the application of Rule 65
to other tribunals, persons and officers

Rule 64 Rule 65
Directed only to the judgments, final orders or Directed to any tribunal, board or officers
resolutions of the COMELEC and COA; exercising judicial or quasi-judicial functions;
Filed within 30 days from notice of the Filed within 60 days from notice of the
judgment; judgment;

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 The filing of a motion for reconsideration or a
motion for new trial if allowed, interrupts the
The period within which to filed the petition
period for the filing of the petition for
if the motion for reconsideration or new trial
certiorari. If the motion is denied, the
is denied, is 60 days from notice of the denial
aggrieved party may file the petition within the
of the motion.
remaining period, but which shall not be less
than 5 days reckoned from the notice of denial.

RULE 65. CERTIORARI, PROHIBITION AND MANDAMUS

A petition for certiorari under Rule 65 is proper to correct errors of jurisdiction committed by the lower court,
or grave abuse of discretion which is tantamount to lack of jurisdiction. This remedy can be availed of when there is
no appeal or any plain, speedy, and adequate remedy in the ordinary course of law.(Cunanan v. Court of Appeals, G.R.
No. 205573, August 17, 2016)

It is a limited form of review confined to errors of jurisdiction. An error of jurisdiction is one where the officer
or tribunal acted without or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess
of jurisdiction. On the other hand, an error of judgment is one which the court may commit in the exercise of its
jurisdiction. They only involve errors in the court or tribunal's appreciation of the facts and of the law. Errors of
jurisdiction are reviewable on certiorari; errors of judgment, only by appeal. (Tan Po Chu v. CA, G.R. No. 184348,
April 4, 2016)

If appeal is available, an appeal must be taken even if the ground relied upon is grave abuse of discretion.
(Yellow Bus Line Employees Union v. Yellow Bus Line, Inc., G.R. No. 190876, June 15, 2016 citing Philippine Electric
Corporation v. Court of Appeals, et al., G.R. No. 168612, December 10, 2014)

Exception to the rule, the Court has allowed petitions for certiorari to be filed in lieu of an appeal "(a)
when the public welfare and the advancement of public policy dictate; (b) when the broader interests of
justice so require; (c) when the writs issued are null; and (d) when the questioned order amounts to an
oppressive exercise of judicial authority." (Yellow Bus Line Employees Union v. Yellow Bus Line, Inc., Ibid

DISTINCTIONS

CERTIORARI PROHIBITION MANDAMUS

Mandamus is an
extraordinary writ
commanding a tribunal,
Certiorari is an extraordinary Prohibition is an corporation, board or person,
writ annulling or modifying extraordinary writ to do an act required to be
the proceedings of a tribunal, commanding a tribunal, done:
board or officer exercising corporation, board or person,
judicial or quasi-judicial whether exercising judicial,
(a) When he unlawfully
functions when such tribunal, quasi-judicial or ministerial
neglects the performance of
board or officer has acted functions, to desist from
an act which the law
without or in excess of its or further proceedings when
specifically enjoins as a duty,
his jurisdiction, or with grave said proceedings are without
and there is no other plain,
abuse of discretion amounting or in excess of its jurisdiction,
speedy and adequate remedy
to lack or excess of jurisdiction, or with abuse of its discretion,
in the ordinary course of law;
there being no appeal or any there being no appeal or any
or
other plain, speedy and other plain, speedy and
adequate remedy in the adequate remedy in the
ordinary course of law (Sec. 1, ordinary course of law (Sec. 2, (b) When one unlawfully
Rule 65). Rule 65). excludes another from the use
and enjoyment of a right or
office to which the other is
entitled (Sec. 3, Rule 65).
Directed against a person
Directed against a person
exercising judicial or quasi- Directed against a person
exercising to judicial or quasi-
judicial functions, or exercising ministerial duties
judicial functions
ministerial functions
Object is to correct Object is to prevent Object is to compel
Purpose is to compel
Purpose is to annul or modify Purpose is to stop the performance of the act
the proceedings proceedings required and to collect
damages
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 Person or entity must have Person or entity must have
Person must have neglected a
acted without or in excess of acted without or in excess of
ministerial duty or excluded
jurisdiction, or with grave jurisdiction, or with grave
another from a right or office
abuse of discretion. abuse of discretion

REQUISITES

CERTIORARI PROHIBITION MANDAMUS

The petition is directed
That the petition is directed against a tribunal,
against a tribunal, board or corporation, board or person The plaintiff has a clear legal
officer exercising judicial or exercising judicial, quasi- right to the act demanded;
quasi-judicial functions; judicial, or ministerial
functions;
The tribunal, corporation,
The tribunal, board or officer board or person must have It must be the duty of the
has acted without, or in excess acted without or in excess of defendant to perform the act,
of jurisdiction or with abuse of jurisdiction or with grave which is ministerial and not
discretion amounting to lack or abuse of discretion discretionary, because the
excess or jurisdiction amounting to lack of same is mandated by law;
jurisdiction;
There is no appeal or any There is no appeal or any
The defendant unlawfully
plain, speedy and adequate plain, speedy and adequate
neglects the performance of
remedy in the ordinary course remedy in the ordinary
the duty enjoined by law;
of law. course of law.
Accompanied by a certified Accompanied by a certified
true copy of the judgment or true copy of the judgment or
order subject of the petition, order subject of the petition, There is no appeal or any
copies of all pleadings and copies of all pleadings and plain, speedy and adequate
documents relevant and documents relevant and remedy in the ordinary
pertinent thereto, and sworn pertinent thereto, and sworn course of law.
certification of non-forum certification of non-forum
shopping under Rule 46. shopping under Rule 46.

 The remedies of appeal and certiorari are mutually exclusive and not alternative or successive. A party
cannot substitute the special civil action of certiorari under Rule 65 of the Rules of Court for the remedy of
appeal. The existence and availability of the right of appeal are antithetical to the availability of the special
civil action for certiorari. (HGL Development Corp. v. Penuela, G.R. No. 181353, June 6, 2016)

CONDITION SINE QUA NON

The general rule is that a motion for reconsideration is a condition sine qua non before a petition for certiorari
may lie, its purpose being to grant an opportunity for the court a quo to correct any error attributed to it by a re-
examination of the legal and factual circumstances of the case. (People v. Valdez, G.R. Nos. 216007-09, December 8,
2015)

Exceptions:

(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;
(b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the
lower court, or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further delay would
prejudice the interests of the Government or of the petitioner or the subject matter of the petition is
perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial
court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and,
(i) where the issue raised is one purely of law or public interest is involved. (Ibid)

WHEN FILED. (Sec. 4)

The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a
motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day
period shall be counted from notice of the denial of said motion.

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No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen
(15) days. (4a) (Bar Matter No. 803, 21 July 1998; A.M. No. 00-2-03-SC)

WHERE FILED (As amended by AM No. 07-7-12-SC, Dec. 12, 2007)

If the petition relates to an act or an omission

Regional Trial Court of an MTC, corporation, board, officer or
person
In election cases involving an act or an
Commission on Elections
omission of an MTC or RTC
Court of Appeals or the Sandiganbayan Whether or not in aid of appellate jurisdiction
Subject to the doctrine of hierarchy of courts
Supreme Court and only when compelling reasons exist for
not filing the same with the lower courts
RULE 66. QUO WARRANTO

It is a special civil action commenced by a verified petition against (a) a person who usurps a public office,
position or franchise; (b) a public officer who performs an act constituting forfeiture of a public office; or (c) an
association which acts as a corporation within the Philippines without being legally incorporated or without lawful
authority to do so (Sec. 1).

Quo warranto is a remedy to try disputes with respect to the title to a public office. Generally, quo warranto
proceedings are commenced by the Government as the proper party-plaintiff. However, under Section 5, Rule 66 of
the Rules of Court, an individual may commence such action if he claims to be entitled to the public office allegedly
usurped by another. We stress that the person instituting the quo warranto proceedings in his own behalf must show
that he is entitled to the office in dispute; otherwise, the action may be dismissed at any stage. Emphatically, Section 6,
Rule 66 of the same Rules requires the petitioner to state in the petition his right to the public office and the
respondent's unlawful possession of the disputed position.

As early as 1905, the Court already held that for a petition for quo warranto to be successful, the suing private
individual must show a clear right to the contested office. His failure to establish this right warrants the dismissal of
the suit for lack of cause of action; it is not even necessary to pass upon the right of the defendant who, by virtue of
his appointment, continues in the undisturbed possession of his office. (General v. Urro, G.R. No. 191560, March 29,
2011)

DISTINCTIONS: QUO WARRANTO UNDER RULE 66 vs. QUO WARRANTO UNDER THE ELECTION CODE

QUO WARRANTO (RULE 66) QUO WARRANTO (ELECTION CODE)

Subject of the petition is in relation to an Subject of the petition is in relation to an
appointive office; elective office;
The issue is the legality of the occupancy of the Grounds relied upon are: (a) ineligibility to
office by virtue of a legal appointment; the position; or (b) disloyalty to the Republic.
May be instituted with the COMELEC by any
Petition is brought either to the Supreme Court, voter contesting the election of any member of
the Court of Appeals or the Regional Trial Congress, regional, provincial or city officer;
Court; or to the MeTC, MTC or MCTC if against any
barangay official;
Petitioner may be any voter even if he is not
Petitioner is the person entitled to the office;
entitled to the office;
When the tribunal declares the candidate-elect
as ineligible, he will be unseated but the
person occupying the second place will not be
The court has to declare who the person
declared as the one duly elected because the
entitled to the office is if he is the petitioner.
law shall consider only the person who,
having duly filed his certificate of candidacy,
received a plurality of votes.

JUDGMENT IN QUO WARRANTO ACTION

When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office,
position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom,
and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered
determining the respective rights in and to the public office, position or franchise of the parties to the action as justice
requires (Sec. 9).

RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC OFFICE

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If the petitioner is adjudged to be entitled to the office, he may sue for damages against the alleged usurper within
one (1) year from the entry of judgment establishing his right to the office in question (Sec. 11).

RULE 67. EXPROPRIATION

(1) Expropriation or the exercise of the power of eminent domain is the inherent right of the state and of those entities
to which the power has been lawfully delegated to condemn private property to public use upon payment of just
compensation. (Republic v. Legaspi, Sr., G.R. No. 177611, April 18, 2012)

MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION

An expropriation proceeding is commenced by the filing of a verified complaint which shall:

(a) State with certainty the right of the plaintiff to expropriation and the purpose thereof;
(b) Describe the real or personal property sought to be expropriated; and
(c) Join as defendants all persons owning or claiming to own, or occupying, any part of the property or interest
therein showing as far as practicable the interest of each defendant. If the plaintiff cannot with accuracy
identify the real owners, averment to that effect must be made in the complaint (Sec. 1).

TWO STAGES IN EVERY ACTION FOR EXPROPRIATION

a) the condemnation of the property after it is determined that its acquisition will be for a public purpose or
public use; and,
b) the determination of just compensation to be paid for the taking of private property to be made by the court
with the assistance of not more than three commissioners. (Republic v. Legaspi, Sr., G.R. No. 177611, April
18, 2012)

The nature of these two stages was discussed in the following wise in the case of Municipality of Biñan vs. Judge Garcia,
(259 Phil. 1058, 1068-69 (1989) to wit:

There are two (2) stages in every action for expropriation.

1. The first is concerned with the determination of the authority of the plaintiff to exercise the power of
eminent domain and the propriety of its exercise in the context of the facts involved in the suit. It
ends with an order, if not of dismissal of the action, "of condemnation declaring that the plaintiff has
a lawful right to take the property sought to be condemned, for the public use or purpose described
in the complaint, upon the payment of just compensation to be determined as of the date of the filing
of the complaint." An order of dismissal, if this be ordained, would be a final one, of course, since it
finally disposes of the action and leaves nothing more to be done by the Court on the merits. So, too,
would an order of condemnation be a final one, for thereafter, as the Rules expressly state, in the
proceedings before the Trial Court, "no objection to the exercise of the right of condemnation (or the
propriety thereof) shall be filed or heard.

2. The second phase of the eminent domain action is concerned with the determination by the Court of
"the just compensation for the property sought to be taken." This is done by the Court with the
assistance of not more than three (3) commissioners. The order fixing the just compensation on the
basis of the evidence before, and findings of, the commissioners would be final, too. It would finally
dispose of the second stage of the suit, and leave nothing more to be done by the Court regarding the
issue. Obviously, one or another of the parties may believe the order to be erroneous in its
appreciation of the evidence or findings of fact or otherwise. Obviously, too, such a dissatisfied party
may seek a reversal of the order by taking an appeal therefrom.

WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO POSSESSION OF THE REAL PROPERTY, IN
RELATION TO RA 8974

Except for the acquisition of right-of-way, site or location for any national government infrastructure project through
expropriation, the expropriator shall have the right to take or enter upon the possession of the real property involved
if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property
for purposes of taxation to be held by such bank subject to the orders of the court. such deposit shall be in money,
unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the
Philippines payable on demand to the authorized government depositary (Sec. 2, Rule 67).

NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST COMPENSATION

For the acquisition of right-of-way, site or location for any national government infrastructure project through
expropriation, upon the filing of the filing of the complaint, and after due notice to the defendant, the implementing
agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) 100 percent of the
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value of the property based on the current relevant zonal valuation of the BIR; and (2) the value of the improvements
and/or structures as determined under Sec. 7 of RA 8974 (Sec. 4, RA 8974).

ORDER OF EXPROPRIATION

If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or
when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring
that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose
described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of
the property or the filing of the complaint, whichever came first.

A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such
appeal, however, shall not prevent the court from determining the just compensation to be paid.

After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding
except on such terms as the court deems just and equitable (Sec. 4).

ASCERTAINMENT OF JUST COMPENSATION

The order of expropriation merely declares that the plaintiff has the lawful to expropriate the property but
contains no ascertainment of the compensation to be paid to the owner of the property. So upon the rendition of the
order of expropriation, the court shall appoint not more than three (3) commissioners to ascertain the just
compensation for the property. Objections to the appointment may be made within 10 days from service of the order
of appointment (Sec. 5). The commissioners are entitled to fees and their fees shall be taxed as part of the costs of the
proceedings, and all costs shall be paid by the plaintiff except those costs of rival claimants litigating their claims (Sec.
12).

Where the principal issue is the determination of just compensation, a hearing before the commissioners is
indispensable to allow the parties to present evidence on the issue of just compensation. Although the findings of the
commissioners may be disregarded and the trial court may substitute its own estimate of the value, the latter may do
so only for valid reasons, that is where the commissioners have applied illegal principles to the evidence submitted to
them, where they have disregarded a clear preponderance of evidence, or where the amount allowed is either grossly
inadequate or excessive.

It is settled that the taking of private property for public use, to be compensable, need not be an actual
physical taking or appropriation. Indeed, the expropriator's action may be short of acquisition of title, physical
possession, or occupancy but may still amount to a taking. Compensable taking includes destruction, restriction,
diminution, or interruption of the rights of ownership or of the common and necessary use and enjoyment of the
property in a lawful manner, lessening or destroying its value. It is neither necessary that the owner be wholly
deprived of the use of his property, nor material whether the property is removed from the possession of the owner,
or in any respect changes hands. (National Power Corp. v. Spouses Malijan, G.R. Nos. 211731 & 211818, December 7,
2016)

APPOINTMENT OF COMMISSIONERS; COMMISSIONER’S REPORT; COURT ACTION UPON

COMMISSIONER’S REPORT

APPOINTMENT. Upon the rendition of the order of expropriation, the court shall appoint not more than three (3)
competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for
the property sought to be taken. The order of appointment shall designate the time and place of the first session of the
hearing to be held by the commissioners and specify the time within which their report shall be submitted to the
court.

Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be
filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the
commissioners shall have received copies of the objections (Sec. 5).

PROCEEDINGS. Before entering upon the performance of their duties, the commissioners shall take and subscribe an
oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other
proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to
administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary,
after due notice to the parties to attend, view and examine the property sought to be expropriated and its
surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The
commissioners shall assess the consequential damages to the property not taken and deduct from such consequential
damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken,
the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking
the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or
the owner be deprived of the actual value of his property so taken (Sec. 6).

REPORT. The court may order the commissioners to report when any particular portion of the real estate shall have
been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to
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proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to
time so deal with such property. The commissioners shall make a full and accurate report to the court of all their
proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered
judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report
shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time
may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies
thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the
findings of the report, if they so desire (Sec. 7).

ACTION UPON THE REPORT. Upon the expiration of the period of ten (10) days referred to in the preceding
section, or even before the expiration of such period but after all the interested parties have filed their objections to
the report or their statement of agreement therewith, the court may, after hearing, accept the report and render
judgment in accordance therewith; or, for cause shown, it may recommit the same to the commissioners for further
report of facts; or it may set aside the report and appoint new commissioners; or it may accept the report in part and
reject it in part; and it may make such order or render such judgment as shall secure to the plaintiff the property
essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken
(Sec. 8).

RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT

After payment of the just compensation as determined in the judgment, the plaintiff shall have the right to enter upon
the property expropriated and to appropriate the same for the public use or purpose defined in the judgment or to
retain possession already previously made in accordance with Sec. 2, Rule 67.

"[T]he recognized rule is that title to the property expropriated shall pass from the owner to the
expropriator only upon full payment of the just compensation. (Republic v. Mupas, G.R. Nos. 181892, 209917,
209696 & 209731, April 19, 2016)

EFFECT OF RECORDING OF JUDGMENT

The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular
property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated.
When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the
place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so
described for such public use or purpose (Sec. 13).

RULE 68. FORECLOSURE OF REAL ESTATE MORTGAGE

A real estate mortgage is an accessory contract executed by a debtor in favor of a creditor as security for the principal
obligation. This principal obligation is a simple loan or mutuum described in Art. 1953, Civil Code. To be a real estate
mortgage, the contract must be constituted on either immovables (real property) or inalienable real rights. If
constituted on movables, the contract is a chattel mortgage (Art. 2124, CC).

 A mortgage contract may have a provision in which the mortgage is a security for past, present and future
indebtedness. This clause known as a dragnet clause or blanket mortgage clause has its origins in American
jurisprudence. The Supreme Court ruled that mortgages given to secure future advancements are valid and
legal contracts (Prudential Bank vs. Alviar, 464 SCRA 353 reiterated in PNB v. Heirs of Sps. Alonday, G.R.
No. 171865, October 12, 2016)

 There is no question, indeed, that all-embracing or dragnet clauses have been recognized as valid means to
secure debts of both future and past origins. Even so, we have likewise emphasized that such clauses were an
exceptional mode of securing obligations, and have held that obligations could only be deemed secured by
the mortgage if they came fairly within the terms of the mortgage contract. For the all-embracing or dragnet
clauses to secure future loans, therefore, such loans must be sufficiently described in the mortgage contract. If
the requirement could be imposed on a future loan that was uncertain to materialize, there is a greater reason
that it should be applicable to a past loan, which is already subsisting and known to the parties. (Ibid)

JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE

(1) If after the trial, the court finds that the matters set forth in the complaint are true, it shall render a judgment
containing the following matters:

(a) An ascertainment of the amount due to the plaintiff upon the mortgage debt or obligation, including interest
and other charges as approved by the court, as well as costs;
(b) A judgment of the sum found due;
(c) An order that the amount found due be paid to the court or to the judgment obligee within the period of not
less than 90 days nor more than 120 days from the entry of judgment; and
(d) An admonition that in default of such payment the property shall be sold at public auction to satisfy the
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 judgment (Sec. 2).

(2) The judgment of the court on the above matters is considered a final adjudication of the case and hence, is subject
to challenge by the aggrieved party by appeal or by other post-judgment remedies.

(3) The period granted to the mortgagor for the payment of the amount found due by the court is not just a
procedural requirement but s substantive right given by law to the mortgagee as his first chance to save his property
from final disposition at the foreclosure sale (De Leon vs. Ibañez, 95 Phil. 119).

SALE OF MORTGAGED PROPERTY; EFFECT

1. The confirmation of the sale shall divest the rights in the property of all parties to the action and shall vest
their rights in the purchaser, subject to such rights of redemption as may be allowed by law (Sec. 3). The title
vests in the purchaser upon a valid confirmation of the sale and retroacts to the date of sale (Grimalt vs.
Vasquez, 36 Phil. 396).

2. The import of Sec. 3 includes one vital effect: The equity of redemption of the mortgagor or redemptioner is
cut-off and there will be no further redemption, unless allowed by law (as in the case of banks as
mortgagees). The equity of redemption starts from the ninety-day period set in the judgment of the court up
to the time before the sale is confirmed by an order of the court. once confirmed, no equity of redemption
may further be exercised.

3. The order of confirmation is appealable and if not appealed within the period for appeal becomes final. Upon
the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by
law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the
property and he may secure a writ of possession, upon, motion, from the court which ordered the foreclosure
unless a third party is actually holding the same adversely to the judgment obligor (Sec. 3).

DISPOSITION OF PROCEEDS OF SALE

(1) The proceeds of the sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the
person foreclosing the mortgage, and when there shall be any balance or residue after paying off the mortgage debt
due, the same shall be paid to junior encumbrancers in the order of their priority. If there be any further balance after
paying them or if there be no junior encumbrancers, the same shall be paid to the mortgagor or any person entitled
thereto (Sec. 4).

DEFICIENCY JUDGMENT

If there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render
judgment against the defendant for any such balance. Execution may issue immediately if the balance is all due the
plaintiff shall be entitled to execution at such time as the remaining balance shall become due and such due date shall
be stated in the judgment (Sec. 6).

INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY JUDGMENT

Where the debtor-mortgagor is a non-resident and who at the time of the filing of the action for foreclosure and
during the pendency of the proceedings was outside the Philippines, it is believed that a deficiency judgment under
Sec. 6 would not be procedurally feasible. A deficiency judgment is by nature in personam and jurisdiction over the
person is mandatory. Having been outside the country, jurisdiction over his person could not have been acquired.

► In an action for judicial foreclosure of mortgage, the factual issues to be resolved are: whether or not the debtor-
mortgagor was in default, and whether the mortgagee has the right to foreclose the mortgage. (Mortel v. Brundige,
G.R. No. 190263, June 15, 2015)

JUDICIAL FORECLOSURE VERSUS EXTRAJUDICIAL FORECLOSURE

EXTRA-JUDICIAL FORECLOSURE (ACT

JUDICIAL FORECLOSURE (RULE 68)
3135)
No complaint is filed; Complaint is filed with the courts;
No right of redemption except when
There is a right of redemption. Mortgagor has a
mortgagee is a banking institution; equity of
right of redemption for 1 year from registration
redemption only (90 to 120 days, and any time
of the sale;
before confirmation of foreclosure sale);
Mortgagee has to file a separate action to Mortagagee can move for deficiency
recover any deficiency; judgment in the same action
Buyer at public auction becomes absolute
Buyer at public auction becomes absolute
owner only after finality of an action for
owner only after confirmation of the sale;
consolidation of ownership;

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 Mortgagee is given a special power of attorney
Mortgagee need not be given a special power
in the mortgage contract to foreclose the
of attorney.
mortgaged property in case of default.

EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION

EQUITY OF REDEMPTION RIGHT OF REDEMPTION

A right granted to a debtor mortgagor, his
successor in interest or any judicial creditor or
The right of defendant mortgagor to extinguish judgment creditor or any person having a lien
the mortgage and retain ownership of the on the property subsequent to the mortgage
property by paying the debt within 90 to 120 or deed of trust under which the property is
days after the entry of judgment or even after sold to repurchase the property within one
the foreclosure sale but prior to confirmation. year even after the confirmation of the sale
and even after the registration of the
certificate of foreclosure sale.
There is no right of redemption in a judicial
foreclosure of mortgage under Rule 68. This
right of redemption exists only in extrajudicial
May be exercised even after the foreclosure sale
foreclosures where there is always a right of
provided it is made before the sale is confirmed
redemption within one year from the date of
by order of the court.
sale (Sec. 3, Act 3135), but interpreted by the
Court to mean one year from the registration
of the sale.
May also exist in favor or other encumbrances.
If subsequent lien holders are not impleaded as
General rule: In judicial foreclosures there is
parties in the foreclosure suit, the judgment in
only an equity of redemption which can be
favor of the foreclosing mortgagee does not
exercised prior to the confirmation of the
bind the other lien holders. In this case, their
foreclosure sale. This means that after the
equity of redemption remains unforeclosed. A
foreclosure sale but before its confirmation,
separate foreclosure proceeding has to be
the mortgagor may exercise his right of pay
brought against them to require them to
the proceeds of the sale and prevent the
redeem from the first mortgagee or from the
confirmation of the sale.
party acquiring the title to the mortgaged
property.
Exception: there is a right of redemption if the
foreclosure is in favor of banks as mortgagees,
If not by banks, the mortgagors merely have an
whether the foreclosure be judicial or
equity of redemption, which is simply their
extrajudicial. This right of redemption is
right, as mortgagor, to extinguish the mortgage
explicitly provided in Sec. 47 of the General
and retain ownership of the property by
Banking Law of 2000. While the law mentions
paying the secured debt prior to the
the redemption period to be one year counted
confirmation of the foreclosure sale.
from the date of registration of the certificate
in the Registry of Property

RULE 69. PARTITION

Who may file petition?

A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his
complaint the nature and extent of his title and an adequate description of the real estate of which partition is
demanded and joining as defendants all other persons interested in the property (Sec. 1) or of an estate composed of
personal property, or both real and personal property (Sec. 13)

► The plaintiff is a person who is supposed to be a co-owner of the property or estate sought to be partitioned. The
defendants are all the co-owners. All the co-owners must be joined. Accordingly, an action will not lie without the
joinder of all co-owners and other persons having interest in the property (Reyes vs. Cordero, 46 Phil. 658).

If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate
among all the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among
themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the
parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry
of deeds of the place in which the property is situated.

A final order decreeing partition and accounting may be appealed by any party aggrieved thereby.(Sec. 2)

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► [T]he provisions on co-ownership under the Civil Code shall apply in the partition of the properties co-owned. It
is stated under Article 1079 of the Civil Code that "partition, in general, is the separation, division and assignment of a
thing held in common among those to whom it may belong. The thing itself may be divided, or its value." As to how
partition may be validly done, Article 496 of the Civil Code is precise that "partition may be made by agreement
between the parties or by judicial proceedings." The law does not impose a judicial approval for the agreement to be
valid. (Diaz-Salgado v. Anson, G.R. No. 2044494, July 27, 2016)

INSTANCES WHEN A CO-OWNER MAY NOT DEMAND PARTITION AT ANY TIME:

(a) There is an agreement among the co-owners to keep the property undivided for a certain period of time but
not exceeding ten years (Art. 494);
(b) When partition is prohibited by the donor or testator for a period not exceeding 20 years (Art. 494);
(c) When partition is prohibited by law (Art. 494);
(d) When the property is not subject to a physical division and to do so would render it unserviceable for the use
for which it is intended (Art. 495);
(e) When the condition imposed upon voluntary heirs before they can demand partition has not yet been fulfilled
(Art. 1084).

MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION

The plaintiff shall state in his complaint, the nature and extent of his title, an adequate description of the real estate of
which partition is demanded, and shall join as defendants all other persons interested in the property (Sec. 1). He
must also include a demand for the accounting of the rents, profits and other income from the property which he may
be entitled to (Sec. 8).

TWO (2) STAGES IN EVERY ACTION FOR PARTITION

A reading of the Rules will reveal that there are actually three (3) stages in the action, each of which could be the
subject of appeal: (a) the order of partition where the property of the partition is determined; (b) the judgment as to
the accounting of the fruits and income of the property; and (c) the judgment of partition (Riano, Civil Procedure (A
Restatement for the Bar)

ORDER OF PARTITION AND PARTITION BY AGREEMENT

During the trial, the court shall determine whether or not the plaintiff is truly a co-owner of the property, that there is
indeed a co-ownership among the parties, and that a partition is not legally proscribed thus may be allowed. If the
court so finds that the facts are such that a partition would be in order, and that the plaintiff has a right to demand
partition, the court will issue an order of partition.

The court shall order the partition of the property among all the parties in interest, if after trial it finds that the
plaintiff has the right to partition (Sec. 2).

Partition by agreement. The order of partition is one that directs the parties or co-owners to partition the property and
the parties may make the partition among themselves by proper instruments of conveyance, if they agree among
themselves. If they do agree, the court shall then confirm the partition so agreed upon by all of the parties, and such
partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the
place in which the property is situated (Sec. 2).

Partition by commissioners; Appointment of commissioners, Commissioner’s report; Court action upon

commissioner’s report
Sec. 3. Commissioners to make partition when parties fail to agree. — If the parties are unable to agree upon the
partition, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to
make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion
of the property as the court shall direct.

Sec. 4. Oath and duties of commissioners. — Before making such partition, the commissioners shall take and
subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court
with the other proceedings in the case. In making the partition, the commissioners shall view and examine the real
estate, after due notice to the parties to attend at such view and examination, and shall hear the parties as to their
preference in the portion of the property to be set apart to them and the comparative value thereof, and shall set apart
the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the
improvements, situation and quality of the different parts thereof.

Sec. 5. Assignment or sale of real estate by commissioners. — When it is made to appear to the commissioners that
the real estate, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may
order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amounts as
the commissioners deem equitable, unless one of the interested parties asks that the property be sold instead of being
so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such
conditions and within such time as the court may determine.

Sec. 6. Report of commissioners; proceedings not binding until confirmed. — The commissioners shall make a full
and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of
the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof on all
the interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of
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the report, if they so desire. No proceeding had before or conducted by the commissioners shall pass the title to the
property or bind the parties until the court shall have accepted the report of the commissioners and rendered
judgment thereon.

Sec. 7. Action of the court upon commissioners’ report. — Upon the expiration of the period of ten (10) days referred
to in the preceding section, or even before the expiration of such period but after the interested parties have filed their
objections to the report or their statement of agreement therewith, the court may, upon hearing, accept the report and
render judgment in accordance therewith; or, for cause shown, recommit the same to the commissioners for further
report of facts; or set aside the report and appoint new commissioners; or accept the report in part and reject it in part;
and may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of
its value, if assigned or sold as above provided, between the several owners thereof.

JUDGMENT AND ITS EFFECTS

The judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real
estate assigned to each party, the effect of the judgment shall be to vest in each party to the action in severalty the
portion of the real estate assigned to him.

If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the
court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making
the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real
estate free from any interest on the part of the other parties to the action.

If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or
purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the
judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from
the claims of any of the parties to the action.

A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real
estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action (Sec. 11).

PARTITION OF PERSONAL PROPERTY

The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and
personal property, in so far as the same may be applicable (Sec. 13).

PRESCRIPTION OF ACTION
Prescription of action does not run in favor of a co-owner or co-heir against his co-owner or co-heirs as long as there is
a recognition of the co-ownership expressly or impliedly (Art. 494).

The action for partition cannot be barred by prescription as long as the co-ownership exists (Aguirre vs. CA, 421
SCRA 310).

But while the action to demand partition of a co-owned property does not prescribe, a co-owner may acquire
ownership thereof by prescription where there exists a clear repudiation of the co-ownership and the co-owners are
apprised of the claim of adverse and exclusive ownership.

RULE 70. FORCIBLE ENTRY AND UNLAWFUL DETAINER

DEFINITIONS AND DISTINCTION

FORCIBLE ENTRY UNLAWFUL DETAINER
The possession of the defendant is lawful
The possession of the defendant is unlawful
from the beginning becomes illegal by reason
from the beginning; issue is which party has
of the expiration or termination of his right to
prior de facto possession;
the possession of the property;
The law does not require previous demand for Plaintiff must first make such demand which
the defendant to vacate; is jurisdictional in nature;
The plaintiff must prove that he was in prior
The plaintiff need not have been in prior
physical possession of the premises until he
physical possession;
was deprived by the defendant; and

DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION REINVINDICATORIA

ACCION PUBLICIANA ACCION REINVINDICATORIA

Accion publiciana is an ordinary civil An action for the recovery of the exercise of
proceeding to determine the better right of ownership, particularly recovery of
possession of realty independent of title. It possession as an attribute or incident of
refers to an ejectment suit filed after the ownership;

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expiration of one year from the accrual of the
cause of action or from the unlawful
withholding of possession of the realty.
(Supapo v. Spouses De Jesus, G.R. No. 198356,
April 20, 2015)
The basis of the recovery of possession is the
plaintiff’s real right of possession or jus
The basis for the recovery of possession is
possessionis, which is the right to the
ownership itself.
possession of the real property independent of
ownership.

WHO MAY INSTITUTE PROCEEDING AND WHEN

Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building
by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the
possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold
possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor,
vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding
of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully
withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such
possession, together with damages and costs. (SEC. 1)

LESSOR TO PROCEED AGAINST LESSEE ONLY AFTER DEMAND.

Unless otherwise stipulated, such action by the lesser shall be commenced only after demand to pay or comply with
the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon
the person found on the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen
(15) days in the case of land or five (5) days in the case of buildings. (Sec. 2)
SUMMARY PROCEDURE.

All actions for forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought
to be recovered, shall be governed by the summary procedure hereunder provided. (sec. 3)

WHEN DEMAND IS NECESSARY

Unless there exists a stipulation to the contrary, an unlawful detainer case shall be commenced only after the demand
to pay or comply with the conditions of the lease and to vacate is made upon the lessee (Sec. 2). The requirement for a
demand implies that the mere failure of the occupant to pay rentals or his failure to comply with the conditions of the
lease does not ipso facto render his possession of the premises unlawful. It is the failure to comply with the demand
that vests upon the lessor a cause of action.

The demand may be in the form of a written notice served upon the person found in the premises. The demand may
also be made by posting a written notice on the premises if no person can be found thereon (Sec. 2). It has been ruled,
however, that the demand upon a tenant may be oral (Jakihaca vs. Aquino, 181 SCRA 67). Sufficient evidence must be
adduced to show that there was indeed a demand like testimonies from disinterested and unbiased witnesses.

PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY INJUNCTION

The court may grant preliminary injunction, in accordance with the provisions of Rule 58, to prevent the defendant
from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through
forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the
action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore
him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof (Sec. 15)

► It bears emphasizing that in ejectment suits, the only issue for resolution is the physical or material possession of
the property involved, independent of any claim of ownership by any of the party litigants. However, the issue of
ownership may be provisionally ruled upon for the sole purpose of determining who is entitled to possession de
facto. Therefore, the provisional determination of ownership in the ejectment case cannot be clothed with finality.
(Bradford United Church of Christ, Inc. v. Ando, G.R. No. 195669, May 30, 2016)

► We reiterate that our pronouncement in this case on the issue of ownership is merely provisional and only for the
purpose of resolving the issue of who between the parties has the right of possession of the subject property. The
petitioner or the respondents may still question the validity of the documents used by the other party to support their
claim of ownership, and to recover possession and ownership of the subject property in a proper suit. (Baluyo y
Gamora v. Spouses Dela Cruz, G.R. No. 197058, October 14, 2015)

HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT

(1) Defendant must take the following steps to stay the execution of the judgment:

a) Perfect an appeal;

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 b) File a supersedeas bond to pay for the rents, damages and costs accruing down to the time of the judgment
appealed from; and
c) Deposit periodically with the RTC, during the pendency of the appeal, the adjudged amount of rent due
under the contract or if there be no contract, the reasonable value of the use and occupation of the premises
(Sec. 19).

Exceptions to the rule:

a) Where delay in the deposit is due to fraud, accident, mistake, or excusable negligence;
b) Where supervening events occur subsequent to the judgment bringing about a material change in the
situation of the parties which makes execution inequitable; and
c) Where there is no compelling urgency for the execution because it is not justified by the
circumstances.

(2)     Prohibited pleadings and motions:

a) Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure
to comply with section 12;
b) Motion for a bill of particulars;
c) Motion for new trial, or for reconsideration of a judgment, or for reopening of trial;
d) Petition for relief from judgment;
e) Motion for extension of time to file pleadings, affidavits or any other paper;
f) Memoranda;
g) Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court;
h) Motion to declare the defendant in default;
i) Dilatory motions for postponement;
j) Reply;
k) Third-party complaints;
l) Interventions

RULE 71. CONTEMPT

Contempt of court has been defined as a willful disregard or disobedience of a public authority. In its broad sense,
contempt is a disregard of, or disobedience to, the rules or orders of a legislative or judicial body or an interruption of
its proceedings by disorderly behavior or insolent language in its presence or so near thereto as to disturb its
proceedings or to impair the respect due to such a body. In its restricted and more usual sense, contempt
comprehends a despising of the authority, justice, or dignity of a court. The phrase contempt of court is generic,
embracing within its legal signification a variety of different acts.

The power to punish for contempt is inherent in all courts, and need not be specifically granted by statute. It lies at
the core of the administration of a judicial system. Indeed, there ought to be no question that courts have the power
by virtue of their very creation to impose silence, respect, and decorum in their presence, submission to their lawful
mandates, and to preserve themselves and their officers from the approach and insults of pollution. The power to
punish for contempt essentially exists for the preservation of order in judicial proceedings and for the enforcement of
judgments, orders, and mandates of the courts, and, consequently, for the due administration of justice.The reason
behind the power to punish for contempt is that respect of the courts guarantees the stability of their institution;
without such guarantee, the institution of the courts would be resting on a very shaky foundation. ( G.R. No. 155849,
LORENZO SHIPPING CORPORATION VS. DISTRIBUTION MANAGEMENT ASSOCIATION OF THE
PHILIPPINES, August 31, 2011)

The power to punish for contempt is inherent in all courts, and need not be specifically granted by statute. It lies at
the core of the administration of a judicial system. Indeed, there ought to be no question that courts have the power
by virtue of their very creation to impose silence, respect, and decorum in their presence, submission to their lawful
mandates, and to preserve themselves and their officers from the approach and insults of pollution. The power to
punish for contempt essentially exists for the preservation of order in judicial proceedings and for the enforcement of
judgments, orders, and mandates of the courts, and, consequently, for the due administration of justice. The reason
behind the power to punish for contempt is that respect of the courts guarantees the stability of their institution;
without such guarantee, the institution of the courts would be resting on a very shaky foundation. (Ibid)

KINDS OF CONTEMPT; PURPOSE AND NATURE OF EACH

CIVIL CONTEMPT CRIMINAL CONTEMPT

It is the failure to do something ordered to be It is a conduct directed against the authority
done by a court or a judge for the benefit of the and dignity of the court or a judge acting
opposing party therein and is therefore and judicially; it is an obstructing the
offense against the party in whose behalf the administration of justice which tends to bring
violated order was made; the court into disrepute or disrespect;
The purpose is to punish, to vindicate the
The purpose is to compensate for the benefit of
authority of the court and protect its outraged
a party;
dignity;

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 Should be conducted in accordance with the
The rules of procedure governing contempt
principles and rules applicable to criminal
proceedings or criminal prosecutions
cases, insofar as such procedure is consistent
ordinarily are inapplicable to civil contempt
with the summary nature of contempt
proceedings.
proceedings.

Proceedings for contempt are sui generis, in nature criminal, but may be resorted to in civil as well as criminal actions,
and independently of any action. They are of two classes, the criminal or punitive, and the civil or remedial. A
criminal contempt consists in conduct that is directed against the authority and dignity of a court or of a judge acting
judicially, as in unlawfully assailing or discrediting the authority and dignity of the court or judge, or in doing a duly
forbidden act. A civil contempt consists in the failure to do something ordered to be done by a court or judge in a civil
case for the benefit of the opposing party therein. It is at times difficult to determine whether the proceedings are civil
or criminal. In general, the character of the contempt of whether it is criminal or civil is determined by the nature of
the contempt involved, regardless of the cause in which the contempt arose, and by the relief sought or dominant
purpose. The proceedings are to be regarded as criminal when the purpose is primarily punishment, and civil when
the purpose is primarily compensatory or remedial. Where the dominant purpose is to enforce compliance with an
order of a court for the benefit of a party in whose favor the order runs, the contempt is civil; where the dominant
purpose is to vindicate the dignity and authority of the court, and to protect the interests of the general public, the
contempt is criminal. Indeed, the criminal proceedings vindicate the dignity of the courts, but the civil proceedings
protect, preserve, and enforce the rights of private parties and compel obedience to orders, judgments and decrees
made to enforce such rights. (Ibid)

DIRECT CONTEMPT INDIRECT CONTEMPT

It is not committed in the presence of the
In general is committed in the presence of or so
court, but done at a distance which tends to
near the court or judge as to obstruct or
belittle, degrade, obstruct or embarrass the
interrupt the proceedings before it;
court and justice;
Acts constituting indirect contempt are:
(a) Misbehavior an officer of a court in the
performance of his official duties or in his
official transactions;
(b) Disobedience of or resistance to a lawful
Acts constituting direct contempt are: writ, process, order, or judgment of a court,
a) Misbehavior in the presence of or so near the including the act of a person who, after being
court as to obstruct or interrupt the dispossessed or ejected from any real
proceedings before it; property by the judgment or process of any
b) Disrespect toward the court; court of competent jurisdiction, enters or
c) Offensive personalities towards others; attempts or induces another to enter into or
d) Refusal to be sworn as a witness or to upon such real property, for the purpose of
answer as a witness; executing acts of ownership or possession, or
e) Refusal to subscribe an affidavit or in any manner disturbs the possession given
deposition when lawfully required to do so to the person adjudged to be entitled thereto;
(Sec. 1); (c) Any abuse of or any unlawful interference
f) Acts of a party or a counsel which constitute with the processes or proceedings of a court
willful and deliberate forum shopping (Sec. 1, not constituting direct contempt under section
Rule 7); 1 of this Rule;
g) Unfounded accusations or allegations or (d) Any improper conduct tending, directly or
words in a pleading tending to embarrass the indirectly, to impede, obstruct, or degrade the
court or to bring it into disrepute (Re: Letter administration of justice;
dated 21 Feb. 2005 of Atty. Noel Sorreda, 464 (e) Assuming to be an attorney or an officer of
SCRA 32); a court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a
person or property in the custody of an officer
by virtue of an order or process of a court
held by him (Sec. 3);

Contempt of court is of two kinds, namely: direct contempt, which is committed in the presence of or so near the
judge as to obstruct him in the administration of justice; and constructive or indirect contempt, which consists of
willful disobedience of the lawful process or order of the court.

The punishment for the first is generally summary and immediate, and no process or evidence is necessary because
the act is committed in facie curiae. The inherent power of courts to punish contempt of court committed in the
presence of the courts without further proof of facts and without aid of a trial is not open to question, considering that
this power is essential to preserve their authority and to prevent the administration of justice from falling into
disrepute; such summary conviction and punishment accord with due process of law. There is authority for the view,
however, that an act, to constitute direct contempt punishable by summary proceeding, need not be committed in the
immediate presence of the court, if it tends to obstruct justice or to interfere with the actions of the court in the
courtroom itself. Also, contemptuous acts committed out of the presence of the court, if admitted by the contemnor in
open court, may be punished summarily as a direct contempt, although it is advisable to proceed by requiring the

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person charged to appear and show cause why he should not be punished when the judge is without personal
knowledge of the misbehavior and is informed of it only by a confession of the contemnor or by testimony under oath
of other persons.

In contrast, the second usually requires proceedings less summary than the first. The proceedings for the punishment
of the contumacious act committed outside the personal knowledge of the judge generally need the observance of all
the elements of due process of law, that is, notice, written charges, and an opportunity to deny and to defend such
charges before guilt is adjudged and sentence imposed.

Plainly, therefore, the word summary with respect to the punishment for contempt refers not to the timing of the
action with reference to the offense but to the procedure that dispenses with the formality, delay, and digression that
result from the issuance of process, service of complaint and answer, holding hearings, taking evidence, listening to
arguments, awaiting briefs, submission of findings, and all that goes with a conventional court trial. (Ibid)

REMEDY AGAINST DIRECT CONTEMPT; PENALTY

The penalty for direct contempt depends upon the court which the act was committed;
(a) If the act constituting direct contempt was committed against an RTC or a court of equivalent or higher
rank, the penalty is a fine not exceeding 2,000 pesos or imprisonment not exceeding 10 days, or both;
(b) If the act constituting direct contempt was committed against a lower court, the penalty is a fine not
exceeding 200 pesos or imprisonment not exceeding one (1) day, or both (Sec. 1)’;

A person adjudged in direct contempt may not appeal therefrom. His remedy is a petition for certiorari or prohibition
directed against the court which adjudged him in direct contempt (Sec. 2).

REMEDY AGAINST INDIRECT CONTEMPT; PENALTY

(1) The punishment for indirect contempt depends upon the level of the court against which the act was committed;

(a) Where the act was committed against an RTC or a court of equivalent or higher rank, he may be punished
by a fine not exceeding 30,000 pesos or imprisonment not exceeding 6 months, or both;
(b) Where the act was committed against a lower court, he may be punished by a fine not exceeding 5,000 pesos
or imprisonment not exceeding one month, or both. Aside from the applicable penalties, if the contempt
consists in the violation of a writ of injunction, TRO or status quo order, he may also be ordered to make
complete restitution to the party injured by such violation of the property involved or such amount as
may be alleged and proved (Sec. 7);
(c) Where the act was committed against a person or entity exercising quasi-judicial functions, the penalty
imposed shall depend upon the provisions of the law which authorizes a penalty for contempt against
such persons or entities.
(2) The person adjudged in indirect contempt may appeal from the judgment or final order of the court in the same
manner as in criminal cases. The appeal will not however have the effect of suspending the judgment if the person
adjudged in contempt does not file a bond in an amount fixed by the court from which the appeal is taken. This bond
is conditioned upon his performance of the judgment or final order if the appeal is decided against (Sec. 11).

HOW CONTEMPT PROCEEDINGS ARE COMMENCED

(1) Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was
committed by an order or any other formal charge requiring the respondent to show cause why he should not be
punished for contempt.

In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars
and certified true copies of documents or papers involved therein, and upon full compliance with the requirements
for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are
related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall
be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt
charge and the principal action for joint hearing and decision (Sec. 4).

ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT

(1) After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within
such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the
following acts may be punished for indirect contempt:

(a) Misbehavior an officer of a court in the performance of his official duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a
person who, after being dispossessed or ejected from any real property by the judgment or process of any
court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real
property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the
possession given to the person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct
contempt under section 1 of this Rule;
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 (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of
justice;
(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or
process of a court held by him (Sec. 3).

(2) Failure by counsel to inform the court of the death of his client constitutes indirect contempt within the purview of
Sec. 3, Rule 71, since it constitutes an improper conduct tending to impede the administration of justice.

WHEN IMPRISONMENT SHALL BE IMPOSED

When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to
perform, he may be imprisoned by order of the court concerned until he performs it (Sec. 8). Indefinite incarceration
may be resorted to where the attendant circumstances are such that the non-compliance with the court order is an
utter disregard of the authority of the court which has then no other recourse but to use its coercive power. When a
person or party is legally and validly required by a court to appear before it for a certain purpose, and when that
requirement is disobeyed, the only remedy left for the court is to use force to bring the person or party before it.

The punishment is imposed for the benefit of a complainant or a party to a suit who has been injured aside from the
need to compel performance of the orders or decrees of the court, which the contemnor refuses to obey although able
to do so. In effect, it is within the power of the person adjudged guilty of contempt to set himself free.

CONTEMPT AGAINST QUASI-JUDICIAL BODIES

The rules on contempt apply to contempt committed against persons or entities exercising quasi-judicial functions or
in case there are rules for contempt adopted for such bodies or entities pursuant to law, Rule 71 shall apply
suppletorily (Sec. 12).

Quasi-judicial bodies that have the power to cite persons for indirect contempt can only do so by initiating them in
the proper RTC. It is not within their jurisdiction and competence to decide the indirect contempt cases. The RTC of
the place where contempt has been committed shall have jurisdiction over the charges for indirect contempt that may
be filed (Sec. 12).

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