2004- civ pro memory aid

Bar 2004Remedial Law Memory Aid

Bar 2004Remedial Law Notes

Civil Procedure

Memory Aid Charts and Enumerations

Venue v. Jurisdiction

VENUE JURISDICTION

1. Place where the action is instituted 1. Power of the court to hear and decide a case

2. May be waived 2. Jurisdiction over the subject matter and over the

nature of the action is conferred by law and cannot be

waived

3. Procedural 3. Substantive

4. May be changed by the written agreement of the

parties

4. Cannot be the subject of the agreement of the parties

R ULE 4 VENUE OF ACTIONS

* Uniform rule on venue in RTC and MTC

1. VENUE OF REAL ACTIONS – in the proper court which has jurisdiction over the area wherein real property involved or a portion thereof is situated.

2. VENUE FOR FORCIBLE ENTRY AND DETAINER ACTIONS – in the MTC of the municipality or city wherein the real property or a portion thereof is situated.

3. VENUE OF PERSONAL ACTIONS – where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in the case of a non-resident defendant where he may be found, at the election of the plaintiff.

NOTE: “residence” means place where party actually resides at time of action; does NOT mean permanent home or domicile.

4. Action against non-resident not found in the Philippines

a. ACTION AFFECTS THE PLAINTIFF’S PERSONAL STATUS - in the court of the place where the plaintiff resides.

b. ACTION AFFECTS ANY PROPERTY OF THE DEFENDANT IN THE PHILIPPINES - where the property or any portion thereof is situated or found.

5. Rules on Venue shall NOT apply:

a. In those case where a specific rule or law provides otherwise (e.g., civil case for damages in cases of libel, where Article 360 of RPC provides specific rules on venue); OR

b. Where the parties have validly agreed IN WRITING before the filing of the action on the EXCLUSIVE venue thereof.

In this instance, the action can only be filed in the place agreed upon even if the other place is the place of residence of the parties or the location of the real property involved.

Compulsory counterclaim v. Permissive Counterclaim

COMPULSORY COUNTERCLAIM1 PERMISSIVE COUNTERCLAIM

(1) One of which arises out of or is necessarily (1) It does not arise out of nor is it necessarily connected

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connected with the transaction or occurrence that is the

subject matter of the opposing party’s claim.

with the subject matter of the opposing party’s claim.

(2) It does not require for its adjudication the presence of

third parties of whom the court cannot acquire

jurisdiction.

(2) It may require for its adjudication the presence of third

parties over whom the court cannot acquire jurisdiction.

(3) It is barred if not set up in the action. (3) It is NOT barred even if not set up in the action.

(4) Need not be answered; no default. (4) Must be answered, otherwise, the defendant can be

declared in default.

Third-Party Complaint v. Cross-claim

THIRD-PARTY COMPLAINT CROSS-CLAIM

* Seeks to recover form a non-litigant some relief in

respect to the opposing party’s claim.

* Claim by a party against a co-party.

* Third party is not yet impleaded. * Cross-defendant is a co-party.

Third-party Complaint v. Complaint in Intervention

THIRD-PARTY COMPLAINT COMPLAINT IN INTERVENTION

* Brings into the action a third person who was not

originally a party.

*Same

* Initiative is with the person already a party to the action. * Initiative is with a non-party who seeks to join the

action.

Amended Pleading v. Supplemental Pleading

RULE 10 AMENDED AND SUPPLEMENTAL PLEADINGS

1. Amendments of pleadings may be made once as a matter of right:a. At any time before responsive pleading is servedb. In the case of a reply, anytime within 10 days after service. Plaintiff may amend complaint as a matter of right even after defendant files a Motion to Dismiss, since the

same is not a “responsive pleading.”

2. Substantial amendments may be made only with leave of court, except as provided above.

3. An amended pleading supersedes the pleading that it amends but admissions in superseded pleadings may be received in evidence against the pleader. (NOT judicial admissions anymore; thus, must be formally offered)

Claims and defenses alleged in original but not incorporated in the amended pleading shall be deemed waived.

1 Agustin vs. Bacalang

A court (if MTC) has no jurisdiction to hear and determine a set-off or counterclaim in excess of its jurisdiction. A counterclaim beyond the court’s jurisdiction may only be pleaded by way of defense, the purpose of which is to defeat or weaken the plaintiff’s claim, but NOT to obtain affirmative relief. MOREOVER, the amount of judgment obtained by the defendant on appeal cannot exceed the jurisdiction of the court in which the action began. Since the trial court did not acquire jurisdiction over the counterclaim in excess of the jurisdictional amount, the appellate court likewise did not have jurisdiction over the same. In such a case, the award in excess of the jurisdiction of the trial court is void.

Calo vs. Ajax A counterclaim, even if otherwise compulsory, but amount exceeds the jurisdiction of the inferior court, will only

be considered permissive. Hence, fact that it is not set-up in the inferior court will not bar plaintiff from instituting a separate action to prosecute it.

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AMENDED PLEADING SUPPLEMENTAL PLEADING

* Refers to facts existing at the time of the

commencement of the action.

* Refers to facts arising after the filing of the original

pleading.

* Take the place of the original pleading * Taken together with the original pleading.

* Can be made as a matter of right as when no

responsive pleading has yet been filed

* Always with leave of court

Completeness of a Service

1. Personal Service

- By handing a copy to defendant; or

- Tendering him a copy if he refuses

- Complete upon actual delivery

2. Service by ordinary mail:

Complete upon expiration of 10 days after mailing, unless the court

provides otherwise.

3. Service by registered mail:

(a) Complete upon actual receipt by the addressee; or

(b) After 5 days from the date he received the first notice of the

postmaster, whichever date is earlier.

What pleadings have to be verified:

a. Petition for relief from judgment (38.3)

b. Appeal by certiorari from CA to SC (45.1)

c. Complaint with prayer for preliminary attachment (57. 3)

d. Complaint for injunction (58.4)

e. Complaint for replevin (60.2)

f. Petition for certiorari (65.1)

g. Petition for prohibition (65.2)

h. Petition for mandamus (65.3)

i. Complaint for forcible entry or unlawful detainer (70.4)

j. Petition for appointment of general guardian (93.2)

k. Petition for leave to sell or encumber property of estate or guardian (95.1)

l. Petition for declaration of competency of the ward (97.1)

m. Petition for habeas corpus (102.3)

n. Petition for change of name (103.2)

o. Petition for voluntary dissolution of a corporation (104.1)

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p. Petition for cancellation or correction of entries in the civil registry (108.1)

q. Petition to take deposition in perpetuam rei memoriam (before action or pending appeal) (24.2)

r. Motion to set aside a default order of an inferior court

s. Motion for dissolution of preliminary injunction on the ground of irreparable damage to the movant while the adverse party can be fully compensated

t. Petition for appointment of receiver

u. Petition for review of the decision of an RTC in cases within the exclusive original jurisdiction of the inferior court, by and elevated to the CA.

v. Pleadings that need not be verified but must be under oath:

w. Denial of the genuineness and due execution of an actionable document (8.8)

x. Denial of allegations of usury (8.11)

y. Answer to written interrogatories (25.2)

z. Answer to request for admission (26.2)

aa. Notice of appeal from administrative tribunals to the CA

Supporting affidavits of merit required:

a. Motion to postpone for absence of evidence (30.3)

b. Motion to postpone for illness of a party or counsel (30.4)

c. Motion for summary judgment or opposition thereto (35.1,2,3,5)

d. Motion for new trial on the ground of FAME or opposition thereto (37.2)

e. Petition for relief from judgment (38.3)

f. Third-party claim (39.16)

g. Proof required of a redemptioner (39.30)

h. Motion for preliminary attachment (57.3)

i. Motion for dissolution of preliminary injunction (58.6)

j. Application for writ of replevin (60.2)

k. Claim against the estate of the decedent (86.9)

l. Motion for new trial based on newly discovered evidence in criminal cases (121.4)

CERTIFICATION AGAINST FORUM-SHOPPING:

Plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading or in a sworn certification annexed and filed therewith:

a. That he has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency; to the best of his knowledge no such other claim or action pending;

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b. If there is such other pending action, a complete statement of the present status thereof;

c. If he should thereafter learn that same or similar action or claim is filed or pending, he shall report the same within 5 days therefrom to the court where he filed his complaint.

NOTE: FAILURE TO COMPLY NOT CURABLE BY MERE AMENDMENT OF THE COMPLAINT OR PLEADING BUT SHALL BE CAUSE FOR DISMISSAL OF THE CASE WITHOUT PREJUDICE; IF THE ACTS OF PARTY OR COUNSEL CLEARLY CONSTITUTE WILLFUL & DELIBERATE FORUM SHOPPING, GROUND FOR SUMMARY DISMISSAL WITH PREJUDICE AND CONSTITUTE DIRECT CONTEMPT. For Forum-Shopping to exist, there must be:

i. Same transactions involved;

ii. Same essential facts and circumstances; and

iii. Actions raise identical cause of action, subject matter, and issues

Modes of Service

A. JUDGMENTS, FINAL ORDERS AND RESOLUTIONS

(a) By personal service; or

(b) By service by mail;

(c) By service by publication, if party is summoned by publication and

has failed to appear in the action, judgment, final order or resolution.

- They can be served only under the three modes.

* - They CANNOT be served by substituted service.

B. PLEADINGS

1. personal service

(a) Delivering personally a copy to the party or his counsel or;

(b) Leaving a copy in counsel’s office with his clerk or with a person

having charge thereof or;

(c) Leaving the copy between 8 a.m. and 6 p.m. at the party’s or

counsel’s residence, if known, with a person of sufficient age and

discretion residing therein – if no person found in his office, or if his

office is unknown, or if he has no office.

2. service by mail

(a) If no registry service is available in the locality, of either sender or

addresses, service may be done by ordinary mail.

(b) With proof of failure of both personal and service by mail.

Service of Summons on Different Entities

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A. SERVICE ON ENTITY

WITHOUT JURIDICAL

PERSONALITY

- Upon any or all defendants being sued under common name; or

- Person in charge of office

B. SERVICE UPON MINORS

AND INCOMPETENTS

- Serve personally and on guardian or any person exercising parental

authority over him;

- In case of minors: by serving upon the minor, regardless of age,

AND upon his legal guardian, or also upon either of his parents.

- In case of incompetents: by serving on him personally AND upon his

legal guardian, but not upon his parents, unless when they are his

legal guardians

- IN ANY EVENT, if the minor or incompetent has no legal guardian,

the plaintiff must obtain the appointment of a guardian ad item for

him.

C. SERVICE UPON PRISONER - Serve an officer having management of the jail or prison

D. SERVICE UPON DOMESTIC

PRIVATE JURIDICAL ENTITY

- To the president, managing partner, general manager, corporate

secretary, treasurer or in-house counsel

- Service upon a person other than those mentioned is invalid and

does not bind the corporation.

E. SERVICE UPON FOREIGN

PRIVATE JURIDICAL ENTITY

- Serve on (15) resident agent; or if none;

- Gov’t official (30) designated by law; or

- On any officer or agent of the corporation within the Philippines

F. SERVICE UPON PUBLIC

CORPORATIONS

- In case defendant is the Republic of the Philippines – by serving

upon the Solicitor General

- In case of a province, city or municipality, or like public corporations

– by serving on its executive head, or on such other officer or

officers as the law or the court may direct.

G. EXTRA-TERRITORIAL

SERVICE

1. Requisites

a) Defendant does not reside or is not found within the Philippines

b) The action either:

* Affects the status of the plaintiff;

* Relates to or the subject of which is property within the Philippines on which

defendant has a lien or interest;

* Demands a relief which consists wholly or in part in excluding the defendant

from any interest in any property within the Philippines;

* Property of defendant has been attached to the Philippines

2. Mode of Service

a) With leave of court served outside the Phil. By personal service; or

b) With leave of court served by publication in a newspaper of general

circulation, in which case copy of the summons and order of court must also

be sent by registered mail to the last known address of defendant; or

c) Any other manner the court deem sufficient.

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H. SERVICE UPON RESIDENT

TEMPORARILY OUT OF THE

PHILIPPINES

Substituted service or with leave of court, personal service out of the

Philippines as under extraterritorial service.

Effect of Motion to dismiss and remedies

EFFECTS OF ACTION OF MTD REMEDY

1. ORDER GRANTING motion to dismiss is a final order 1. Appeal from the order of dismissal

2. ORDER DENYING the motion to dismiss is

interlocutory

2. Certiorari and prohibition if there is grave abuse of

discretion amounting to lack or excess of jurisdiction

Rule 16 v. Rule 33

MOTION TO DISMISS UNDER RULE 16 MOTION TO DISMISS UNDER RULE 33 (demurrer to

evidence)

* Grounded on preliminary objections * Based on insufficiency of evidence.

* May be filed by any defending party against whom a

claim is asserted in the action.

* May be filed only by the defendant against the

complaint of the plaintiff.

* Should be filed within the time for but prior to the filing

of the answer of the defending party to the pleading

asserting the claim against him.

* May be filed only after the plaintiff has completed the

presentation of his evidence.

Rule 17: Dismissal of Actions

SECTION 2 SECTION 3

1. Dismissal is at the instance of the plaintiff; 1. Dismissal is not procured by plaintiff though justified

by causes imputable to him;

2. Dismissal is a matter of procedure, without prejudice

unless otherwise stated in the order of the court or on

plaintiff’s motion to dismiss his own complaint;

2. Dismissal is a matter of evidence, an adjudication on

the merits;

3. Dismissal is without prejudice to the right of the

defendant to prosecute his counterclaim in a separate

action unless 15 days from notice of the motion he

manifests his intention to have his counterclaim resolved

in the same action.

3. Dismissal is without prejudice to the right of the

defendant to prosecute his counterclaim on the same or

separate action.

Intervention v. interpleader

INTERVENTION INTERPLEADER

* An ancillary action. * An original action

* Proper in any of the four situations mentioned in this

Rule.

* Presupposes that plaintiff has no interest in the subject

matter of the action or has an interest therein, which in

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whole or in part, is not disputed by the other parties to

the action

* Defendants are already original parties to the pending

suit

* Defendants are being sued precisely to implead them.

Interpleader v. Intervention

INTERPLEADER INTERVENTION

1. an original action 1. ancillary action

2. presupposes that plaintiff has no interest in the subject

matter of the action or has interest therein in whole or in

part which is not disputed by the other parties

2. proper in any of the four situations: persons having (a)

legal interest in the matter of litigation, or (b) success of

either of the parties, or (c) an interest against both, or (d)

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 offer thereof, (Rule 19, Sec. 1)

3. defendants are being sued precisely to interplead

them

3. defendants are original parties to the pending suits

Subpoena v. summons

SUBPOENA SUMMONS

* An order to appear and testify or to produce books and

documents

* Order to answer complaint

* May be served to a non-party * Served on the defendant

* Needs tender of kilometrage, attendance fee and

reasonable cost of production fee

* Does not need tender of kilometrage and other fees

Commission v. Letter Rogatory

COMMISSION LETTERS ROGATORY

* Issued to a non-judicial foreign officer who will directly

take the testimony

* Issued to the appropriate judicial officer of the foreign

country who will direct somebody in said foreign country

to take down testimony

* Applicable rules of procedure are those of the

requesting court

* Applicable rules of procedure are those of foreign court

requested to act

* Resorted to IF permission of the foreign country is

given

* Resorted to IF the execution of the commission is

refused in the foreign country

* Leave of court is not necessary * Leave of court is necessary

DEPOSITIONS AFFIDAVITS

Written testimony of witness in course of judicial proceedings, in advance of trial and hearing

Mere sworn written statements

Opportunity for cross-examination No cross-examinationCan be competent testimonial evidence Little probative value (hearsay)

DEPOSITION OF MAY BE USED BY PURPOSE

A witness Any party To contradict or impeach the deponent’s testimony as a

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witnessAny party, or anyone who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation

An adverse party For any purpose

Of any witness, whether a party or not

Any party For any purpose, IF court finds that:a. Witness is dead;

b. Witness resides at a distance more than 100 km from place of trial, UNLESS absence procured by party offering the deposition

c. Witness is unable to testify because of age, sickness, infirmity, or imprisonment;

d. Party offering the deposition has been unable to procure the attendance of the witness by subpoena; OR

e. Other exceptional circumstances make it desirable to allow deposition to be used.

Production of document,etc. v. Subpoena Duces Tecum

PRODUCTION OR INSPECTION OF DOCUMENTS OR

THINGS

SUBPOENA DUCES TECUM

* Essentially a mode of discovery * Means of compelling production of evidence

* The Rules is limited to the parties to the action * May be directed to a person whether a party or not

* The order under this Rule is issued only upon motion

with notice to the adverse party

* May be issued upon an ex parte application.

Demurrer to Evidence v. Motion to Dismiss

DEMURRER TO EVIDENCE MOTION TO DISMISS

* It is presented after the plaintiff has rested his case * Presented before a responsive pleading (answer) is

made by the defendant

* The ground is based on insufficiency of evidence * It may be based on any of those enumerated in Rule 16

TWO KINDS OF DEMURRER TO EVIDENCE

CIVIL CASES CRIMINAL CASES

1. Defendant need not ask for leave of court 1. Leave of court is necessary so that the accused could

present his evidence if the demurrer is denied.

2. if the court finds the plaintiffs evidence insufficient, it will

grant the demurrer by dismissing the complaint. The

judgment of dismissal is appealable by the plaintiff. If the

plaintiff appeals and judgment is reversed by the

2. if the court finds the prosecutions evidence insufficient,

it will grant the demurrer by rendering judgment

acquitting the accused. Judgment of acquittal is not

appeallable; double jeopardy sets in.

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appellate court, it will decide the case on the basis of the

plaintiff’s evidence with the consequence that the

defendant already loses his right to present evidence. No

res judicata in dismissal due to demurrer.

3. If court denies demurrer, defendant will present his

evidence.

3. If court denies the demurrer

(a) If demurrer was with leave of court, accused may

present his evidence;

(b) If demurrer was without leave of court, accused can

no longer present his evidence and submits the case for

decision based on the prosecution’s evidence.

Summary Judgments v. Judgment on the pleadings v.judgment by default

SUMMARY JUDGMENT JUDGMENT ON THE PLEADINGS JUDGEMENT BY DEFAULT (Rule

9)

* Based on the pleadings,

depositions, admissions and

affidavits

* Based solely on the pleadings * Based on the complaint and

evidence, if presentation is required

* Available to both plaintiff and

defendant

* Generally available only on the

plaintiff, unless the defendant

presents a counterclaim.

* Available to plaintiff

* There is no genuine issue between

the parties, i.e. there may be issues

but these are irrelevant

* There is no issue or there is an

admission of the material allegations.

* No issues as no answer is filed by

the defending party.

* 10-day notice required * 3-day notice required * 3-day notice rule applies

* May be interlocutory or on the

merits

* On the merits * On the merits

Judgment on the pleadings Summary judgmentProper when there is no genuine issue between the parties

Proper even if there is an issue as to the damages recoverable

Based exclusively on the pleadings without introduction of evidence

Based not only on pleadings but also on affidavits, depositions and admissions of the parties

Available in any action, except the 3 exceptions Proper only in actions to recover a debt, or for a liquidated sum of money, or for declaratory relief

New trial/ MFR v. Relief from Judgment

NEW TRIAL/RECONSIDERATION RELIEF FROM JUDGMENT

* Must be filed within the appeal period. Judgment not

yet final.

* Judgment is final within 60 days after petitioner

learns of the judgment to be set aside and within 6

months after such judgment is entered.

* A legal right. * More on equity (Discretionary)

* FAME * FAME only

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* Judgment on final order * Relief from judgment/order on other proceeding.

Appeals

A vs. B Mode of Appeal Appellate Court Period of Appeal Questions Raised

1. MTC (Rule

40)

Notice of Appeal

within the MTC

RTC (No trial denovo) Within 15 days from

notice of judgment

and on proper case

within 30 days.

Where the case in

inferior court involves

a special proceeding

or one which involves

multiple appeal is 30

days a record on

appeal being

required.

1. QF

2. OL

3. OF&L

2. RTC Exercise

of:

a) Original j. A

vs. B for specific

performance (A

won: B appeal)

issues raised on

appeal

Issue raised on

appeal

b) Appellate

Jurisdiction Ex.

A vs. B MTC;

Judgment was

Appealed to

RTC

Notice of Appeal Filed

with the same RTC

that rendered

judgment (question of

law and question of

fact or question or fact

only.)

CA (15/30) N.B. When there is a

motion for

reconsideration of the

judgment of RTC, the

appeal period is

counted from the

receipt of the

appellant of same (15

or 30 days) the order

denying the motion for

reconsideration.

Petition for Review on

Certiorari (Rule 45)

(question law only)

SC Same (15 or 30 days)

CA: Petition for

Review

CA (Regardless of the

nature of the question

raised)

Same (15 or 30 days)

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ORDINARY APPEAL PETITION FOR REVIEW

* Matter of right * Discretionary

* All the records are elevated from the court of origin * No records are elevated unless the court decrees it

* Notice of record on appeal is filed with the record of

origin

* Filed with the CA

Ordinary Appeal (appeal by writ of

error)

Petition for review

(Rule 42)

Petition for review on certiorari

Rule 45

* Case is decided by the RTC in its

original jurisdiction Appealed to the

CA

* Case is decided by the MTC.

Appealed to the RTC. Petition for

review with the CA.

* The case raises only a question of

law.

* File a notice of appeal or a record

on appeal with the court of origin

(RTC) and give a copy to the

adverse party.

* File a verified petition for review

with the CA / Pay the docket and

lawful fees, and P500 as deposits for

costs with the CA / Furnish RTC and

adverse party copy of such (R42).

* File a verified petition for review on

certiorari with the SC (R45) / Pay

docket and lawful fees and P500 for

costs / Submit proof of service of a

copy to the lower court and adverse

party.

* Within 15 days from the notice of

the judgment for notice of appeal and

within 30 days for records on

appeal / The period for filing is

interrupted by a timely motion for

reconsideration or new trial.

Within 15 days from notice of the

decision to be reviewed or form the

denial of a MR or new trial.

* Within 15 days from notice of the

judgment or order of denial of the

MR or new trial.

NOTICE BY APPEAL RECORD ON APPEAL

When perfected Upon filing of notice of appeal in due time

Approval of record on appeal in due time

When court loses jurisdiction

Over the case: upon perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties

Over the subject matter: upon approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties

Period for filing 15 days 30 daysContents a. Names of the parties to the

appeal;b. Specify judgment or final order

or part thereof appealed from;c. Court to which the appeal is

being taken;Material dates showing timeliness of appeal

a. Full names of all parties to the proceedings shall be stated in the caption;

b. Include judgment or final order from which appeal is taken;

c. In chronological order, copies of only such pleadings, petitions, etc. and all interlocutory orders as are related to the appealed judgment;

d. Data showing that appeal perfected in time - material data rule;

e. If an issue of fact is to be raised, include by reference all the evidence, oral or documentary, taken upon the issues involved.

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QUESTIONS OF LAW QUESTIONS OF FACT

* doubt of controversy as to what the law is on ceratin

facts

* doubt or difference arises as to the truth or falsehood of

facts, or as to probative value of the evidence presented

* if the appellate court can determine the issue raised

without reviewing or evaluating the evidence

* the determination involves evaluation or review of

evidence

* can involve questions of interpretation of the law with

respect to the ceratin set of facts

* qeury invites the calibration of the whole evidence

considering mainly the credibility of witnesses, existence

and relevancy of specific surrounding circumstances and

relation to each other and the whole probabilities of the

situation

CERTIORARI UNDER RULE 45 CERTIORARI UNDER RULE 65

* Petition is based on questions of law * Petition raises the issue as to whether the lower court

acted without jurisdiction or in excess of jurisdiction or

with grave abuse of discretion

It is a mode of appeal Special civil action

* Involves the review of the judgment award or final order

on the merits

* Directed against an interlocutory order of the court or

where there is no appeal or any other plain, speedy or

adequate remedy

* Must be made within the reglementary period * Filed not later than 60 days from notice of judgment,

order of resolution appealed from

* Stays the judgment or order appealed from * Unless a writ of preliminary injunction or temporary

restraining order is issued does not stay the challenged

proceeding

* The petitioner and the respondent are the original

parties to the action, and the lower court or quasi-judicial

agency is not impleaded

* The parties are the aggrieved party against the lower

court or quasi-judicial agency and the prevailing parties

* Motion for reconsideration is not required * Motion for reconsideration or for new trial is required

* File a motion for reconsideration or new trial is filed, the

period shall not only be interrupted but another 60 days

shall be given to the petitioner (SC Admin. Matter 002-

03)

* The court is in the exercise of its appellate jurisdiction

and the power of review

* Court exercises original jurisdiction

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CERTIORARI PROHIBITION MANDAMUS

Purpose of the writ. *Intended as a corrective

remedy

*Annul and modify a

proceeding

Prevent the commission or

carrying out of an act

Intended to compel

performance of an act

desired

Act sought to be

controlled.

Discretionary act Discretionary and

ministerial act

Ministerial act

With respect the

respondent.

Exercising judicial and

quasi-judicial function

Judicial/or non-judicial

function

Judicial and/or non-judicial

function

QUO WARRANTO MANDAMUS

Designed to try the right or title to the office, the right to

the office itself is disputed

Applicable only in cases where the right to the office is

NOT in dispute

Quo Warranto in Electoral Proceeding Quo Warranto in Electoral Proceeding

- To contest the right of an electoral public officer to hold

public office.

- prerogative writ by w/c the govt. can call upon any

person to show by what title he holds a public office or

exercises a public franchise

- an electoral proceeding under the Omnibus Elections

Code for the exclusive purpose of impugning the election

of a public officer on the ground of ineligibility or

disqualification to hold the office

- three grounds: usurpation, forfeiture, or illegal

association

- petition must be filed within 10 days from the

proclamation of the candidate

- presupposes that the respondent is already actually

holding office and action must be commenced within one

year from cause of ouster or right of petitioner to hold

office arose

- may be filed by any registered candidate for the same

office and, who, even if the petition prospers, would not

be entitled for that office.

- the petitioner must be the government or the person

entitled to the office and who would assume the same if

his action succeeds.

STAGES IN EXPRORIATION

1. Determination of the authority of the plaintiff to exercise the power of eminent domain and the propriety of the

exercise in the context of the facts involved, and

2. Determination of JUST COMPENSATION.

JUDICIAL FORECLOSURE EXTRAJUDICIAL FORECLOSURE

Requires court intervention No court intervention necessary

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There is only an equity of redemption Right of redemption exists

Alternative remedy to personal action for the amount due

to satisfy mortgage debt

Proper only when provided for in the contract

EQUITY OF REDEMPTION RIGHT OF REDEMPTION

- Right of the defendant mortgagor to extinguish the

mortgage and retain ownership of the property by paying

the debt w/in 90-120 days after the entry of the judgment

or even after the foreclosure sale but prior to

confirmation

- Right of the debtor, his successor in interest or any

judicial creditor or judgment creditor of said debtor or any

person having alien on the property subsequent to the

mortgage or deed of trust under which the property is

sold to redeem the property w/in one year from the

registration of the Sheriff’s certificate of foreclosure sale

- Governed by Rule 68 - Governed by Secs. 29-31 of Rule 39

Distinguish between execution and judicial foreclosure of mortgage.

EXECUTION JUDICIAL FORECLOSURE OF MORTGAGE

Confirmation Sale need not be confirmed Sale must be confirmed by court in order to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser.

Right of redemption Yes. No right of redemption.Exception: When the mortgagee is a bank

Equity of redemption: 90-120 days from entry of judgment, before confirmation of sale

When purchaser acquires title

After expiration of redemption period, when the final deed of conveyance is executed

Upon confirmation and registration of the foreclosure sale

Distinguish between execution and attachment.

EXECUTION ATTACHMENT

Lifetime of writ 5 years from date of entry of judgment

No lifetime

Who exercises option to choose property to be levied upon/attached

Judgment obligor Defendant

Third-party claimant Must vindicate his claim to the property in a separate action (kasi tapos na yung main action, so he can’t intervene)

May vindicate his claim to the property in the same action (by intervention) or in a separate action

Priority of levy/attachment Personal property first, then real property

No specific priority

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Distinguish between replevin and preliminary attachment.

REPLEVIN PRELIMINARYATTACHMENT

When applied for At commencement of action or at any time before answer

At commencement of action or at any time before entry of judgment

Property involved Personal property of owner, or to whose possession claimant is entitled

Real or personal property in the Philippines belonging to the debtor

Prayer Recovery of possession of such property

Attachment of sufficient property to satisfy the applicant’s demand

Affidavit and bond? Yes Yes

Bonds involved Applicant’s bond: 2x

Counterbond: 2x

Indemnity bond: ≥x

Applicant’s bond: amount fixed in OrderCounterbond: amount equal to that fixed in OrderIndemnity: ≥x

What is done with the property? (personal property)

The sheriff takes possession of the property and retains it in his custody. If within 5 days from the taking of the adverse party does not avail of any of the remedies available to him, the sheriff shall deliver the property to the applicant.

The sheriff takes the property and keeps it in his custody.

Limitations Property must not be:(1) exempt from execution;(2) seized under: - writ of execution; - preliminary attachment(3) taken for a tax assessment or a fine pursuant to law

Property must not be exempt from execution.

Preliminary Injunction ProhibitionGenerally directed against party to the action but may be against any person

Directed against a court, tribunal, or person exercising judicial powers

Does NOT involve the jurisdiction of the court May be on the ground that the court against whom the writ is sought acted without or in excess of jurisdiction;

May be main action itself or just a provisional remedy in the main action

Always a main action

JUDGMENT CONTENTS OF JUDGMENT EFFECT OF JUDGMENT

If actual partition of property is made The judgment shall state definitely:

(1) By metes and bounds and

adequate description,

(2) The particular portion of the

estate assigned to each party

To vest in each party to the act, in

severally the portion of the 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

The judgment shall state:

1. The fact of such payment, and

2. The assignment of the real estate

To vest in the party making the

payment the whole of the real estate

free from any interest on the part of

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by the court to the party making the payment the other parties to the action

If the property is sold and the sale is

confirmed by the court

The judgment shall state:

1. The name of the purchaser(s), and

2. A definite description of the

parcels of the real estate sold to

each purchaser

To vest the real estate in the

purchaser(s) making the payment(s),

free from the claims of the parties to

the action.

Rule 70: Forcible Entry and Unlawful Detainer

Three (3) Kinds of Action for Recovery of Possession

ACCION INTERDICTAL ACCION PUBLICIANA ACCION REINDIVICATORIA

*Summary action for the recovery of

physical possession where the

dispossession has not lasted for

more than one year.

*Ejectment proceeding under Rule

70, either forcible entry or unlawful

detainer

*A plenary action for the recovery of

the real right of possession has

lasted for more than one year.

*An action for the recovery of

ownership w/c necessarily includes

the recovery of possession.

*All cases of forcible entry and

unlawful detainer irrespective of the

amount of damages or unpaid

rentals sought to be recovered

should be brought to the MTC.

*RTC has jurisdiction if the value of

the property exceeds P20,000

outside Metro Manila; P50,000 within

Metro Manila.

*MTC has jurisdiction if the value of

the property does not exceed

P20,000 – outside Metro Manila;

P50,000 within Metro Manila

*RTC has jurisdiction if the value of

the property exceeds P20,000

outside Metro Manila; P50,000 within

Metro Manila,

*MTC has jurisdiction if the value of

the property does not exceed

P20,000 – outside Metro Manila;

P50,000 within Metro Manila

FORCIBLE ENTRY UNLAWFUL DETAINER

*Possession of the land by the defendant is unlawful

from the beginning as he acquires possession by Force,

Intimidation, Strategy, Threat or Stealth (FISTS)

*Possession is inceptively lawful but it becomes illegal by

reason of the termination of his right to the possession of

the property under his contract w/ the plaintiff

*No previous demand for the defendant to vacate the

premises is necessary

*Demand is jurisdictional if the ground is:

1. Non-payment of rentals, or

2. Failure to comply with lease of contract

*The plaintiff must prove that he was in prior physical

possession of the premises until he was deprived thereof

by the defendant

*The plaintiff need not have been in prior physical

possession

*The 1 year period is generally counted from the date of *Period is counted from the date of last demand or last

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actual entry on the land letter of demand

When prior demand in unlawful detainer actions not required;a. When purpose of action is to terminate lease because of expiry of term and not because of failure to pay

rental or to comply with terms of lease contract;b. Purpose of suit is not for ejectment but for enforcement of terms of contract;c. When defendant is not a tenant but a pure intruder In all other cases, there must be a demand:

i. To pay or to comply with the conditions of the lease; AND ii. To vacate by written notice on the person in the premises or by posting such notice on the premises if

no person is found thereon and this is a condition precedent to the filing of the case; ORAL demand is not permitted.

iii. If demand is in the alternative (pay OR vacate), this is NOT the demand contemplated by the Rules.

Rule 71: CONTEMPT

DIRECT CONTEMPT INDIRECT CONTEMPT

*Summary in nature Punished after being charged and hearing

GROUNDS:

a) Misbehavior in the presence of or near a court as to

obstruct or interrupt the proceedings

b) Disrespect towards the court

c) Offensive personalities towards others.

d) Refusal to be shown or to answer as witness or to

subscribe an affidavit or deposition.

GROUNDS:

a) Misbehavior of 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. Unauthorized intrusion to any real

property after being ejected;

c) Any abuse or any unlawful interference w/ the

proceedings not constituting direct contempt

d) Any improper conduct tending to degrade the

administration of justice.

e) Assuming to be an attorney or an officer of the court

w/o authority.

f) failure to obey a subpoena

g) Rescue, or attempted rescue, of a person or property

in the custody of an officer.

If committed against:

a. RTC – fine not exceeding P2,000 or imprisonment not

exceeding (10) days or both

b. MTC – fine not exceeding P200 or imprisonment not

exceeding one (1) day, or both.

If committed against:

a. RTC – fine not exceeding P30,000 or imprisonment

not exceeding 6 months or both.

b. MTC – fine not exceeding P5,000 or imprisonment not

exceeding (1) month or both

TIME TO PLEAD

A. In the following case, a party only has the balance of the period to file the necessary pleading:

Appeal after denial of MNT/MR [Rule 40, 41]

B. In the following cases, a party is given the balance of the period, but not less than 5 days:

Responsive pleading, after bill of particulars (Rule 12, Section 5)

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Answer, after denial of MTD (Rule 16, Section 4) Certiorari under Rule 65 for review of resolutions of COA/COMELEC, after denial of

MNT/MR (Rule 64, Section 3) Answer, after denial of MTD in interpleader (Rule 63, Section 4)

C. In the following cases, a party is given a fresh period:

Appeal after MNT/MR (15 days) [Rule 42, 43, 45] Certiorari (Rule 65) after denial of MNT/MR (60 days)

DISMISSALS THAT OPERATE AS ADJUDICATIONS ON THE MERITS(or bar refiling of the same action)

Rule 16, Section 1 (f)- res judicata- prescription

Rule 16, Section 1 (h) – extinguishment Rule 16, Section 1 (i) – unenforceability Rule 17, Section 3

- failure to appear on date of presentation of evidence in chief- failure to prosecute- failure to comply with the Rules or any order of the Court

Rule 18, Section 5 – failure of plaintiff to appear at pre-trial Rule 18, Section 6 – failure of plaintiff to file pre-trial brief Rule 17, Section 1 (2-dismissal rule) – Second dismissal upon notice of plaintiff Rule 33, Section 1 – Order granting a demurrer to evidence Minute resolution of the SC dismissing a petition for review for lack of merit

GROUNDS FOR DISMISSAL OF AN APPEAL:

Failure of appellant to file memorandum of appeal (Rule 40, Section 7b) Appeal filed out of time Non-payment of docket or other lawful fees within the reglementary period Unauthorized alteration, omission or addition in the approved record on appeal (Rule 44, Section 4) Non-compliance with requirements involving: Payment of docket and other lawful fees, deposit for costs (Rule 42, 43, 45); Proof of service of petition (Rule 42, 43, 45); Contents of and documents which should accompany petition (Rule 42, 43, 45)

INSTANCES WHEN A THIRD-PARTY BOND ( TERCERIA) IS APPLICABLE:

Execution Preliminary attachment Replevin

INSTANCES WHEN EXECUTION IS NOT STAYED BY THE FILING OF AN APPEAL OR PETITION FOR CERTIORARI

Rule 43 Rule 64 (COMELEC/COA) Rule 70, RTC judgment [FEUD] Injunction Receivership Accounting Support pendente lite Expropriation (Rule 67, Section 11)

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Source: CIVIL PROCEDURE [LAGGUI REVIEWER] TRANSCRIBED GALLY NOTES WITH RENE NOTES BY: RENE CALLANTASome Reviewers from class of Prof. BautistaDifferent BarOps Reviewers of Different Schools including UP BarOps

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2004- civ pro memory aid

Documents

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trial court

venue of real actions

proper court

appellate court

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time of action