Jurisdiction

The Supreme Court shall have the following powers:

1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

2. Review, revise, reverse, modify, or affirm on appeal or certiorari as the law of the Rules of Court may provide, final judgment and the orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

b. All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation theretoc. All cases in which the jurisdiction of any lower courts is in issued. All criminal cases in which the penalty impose is reclusion perpetua or highere. All cases in which only an error or question of law is involved

3. Assign temporarily judges of lower courts to other stations as public interest may require.4. Order the change of venue or place of trial to avoid miscarriage of justice.5. Promulgate rules concerning the:

a. Protection and enforcement of constitutional rightsb. Pleading, practice and procedure in all courtsc. The admission to practice of law, the Integrated Bar; andd. Legal assistance to the underprivileged

6. Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law

Jurisdiction vs. Judicial Power

The exercise of a judicial power is dependent upon the creation of a court. If there is no court created then there is no judicial power. The court is created by law or legislation. Judicial power is a passive power. The creation of a court necessarily follows that the court must be clothed and armed with a power. This power is the judicial power dependent upon the creation of the court.

Jurisdiction vs. Venue

Jurisdiction is the authority to hear and determine a case whereas venue is the ploace where the case is to be heard or tried.Jurisdiction is a matter of substantive law whereas venue is a matter of procedural law.Jurisdiction establishes a relation between the court and the subject matter whereas venue is a relation between a plaintiff and defendant, or petitioner and respondent.Jurisdiction is fixed by law and cannot be conferred by the parties whereas venue may be conferred by the act or agreement of the parties.

Manila Railroad vs. Atty. GeneralThe failure of a defendant to object to the venue of the action at the time of entering his appearance in the action shall be deemed a waiver on his part of all objections to the place or tribunal in which the action is brought, except in the actions referred to in the first sixteen lines of this section relation to real estate, and actions against executors, administratios, and guardians, and for the distribution of estates and payment of legacies.

Original Jurisdiction- Those courts in which, under the law, actions or proceedings may originally be commenced

- It is the power of the court to take judicial cognizance of a case instituted for judicial action for the first time under conditions provided by law

Appelate Jurisdiction

- Courts which have the power to review on appeal the decisions or orders of a lower court

- It is the authority of a court higher in rank to reexamine the final order of judgment of a lower court which tried the case now elevated for judicial power.

Exclusive Jurisdiction

- It is the power to adjudicate a case or proceeding to the exclusion of all other courts at that stage.

Concurrent Jurisdiction

- It is referred to as confluent or coordinate jurisdiction, which is the power conferred upon different ranks, whether of the same or different ranks, to take cognizance at the same stage of the same case in the same or different judicial territories.

Special Jurisdiction

- It is the power of inferior courts to hear and decide petitions in the absence of the proper court in the province or city

- It is referred to as the interlocutory jurisdiction of inferior courts under the Judiciary Act.

Jurisdiction over the subject matter-this is conferred by law and unlike jurisdiction over the parties, cannot be conferred on the court by the voluntary act or agreement of the parties.Jurisdiction vs. Exercise of Jurisdiction

The authority to decide a case and not the decision rendered therein is what makes up jurisdiction. Where there is jurisdiction, the decision of all questions arising in the case is but an exercise of jurisdiction.

Jurisdiction is the power of the court itself but when such power is exercised then it is an exercise of jurisdiction.

The errors which a court may commit in the exercise of jurisdiction differ from errors of judgment. The former is reviewable in an orifinal action for certiorari, while the latter is correctible by appeal.Errors in jurisdiction render a judgment void or, at least voidable, while errors of judgment are grounds for reversal only if it shown that prejudice has been caused thereby.

Jurisdiction is conferred by law and cannot be conferred or waived by the parties and can be assailed at anytime. But not where estoppel by laches sets in.

What determines jurisdiction over the subject matter?The facts alleged in the complaint and the law in force at the time of the commencement of the action

determines the jurisdiction of a court.

the general rule remains that a court’s lack of jurisdiction may be raised at any stage of the proceedings, even on appeal. The reason is that, jurisdiction is conferred by law, and lack of it affects the very authority of the court to take cognizance of and to render judgment on the action. Moreover, jurisdiction is determined by the averments of the complaint, not by the defenses contained in the answer.

GR: Jurisdiction of a court is not affected by a new legislation laying jurisdiction over such proceedings to another tribunal.

XPN: Where the law expressly provides that it shall operate retroactively.

GR: Jurisdiction of the court over the subject matter of the action is determined by the allegations of the complaint, irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein. Jurisdiction of the court cannot be made to depend upon the defenses set up in the answer or in the motion to dismiss; otherwise, the question of jurisdiction would almost entirely depend upon the defendant

XPN:There is one instance when the court, in determining its jurisdiction, may consider the defense set up by the defendant in his answer------ that is an ejectment case filed with the Municipal Trial Court where the defendant sets up the defense of agricultural tenancy by claiming that he is a tenant. In such situation, the court should not dismiss the case outright but must conduct a preliminary hearing on the said defense. If the court finds that there is indeed an agricultural tenancy relationship between the plaintiff and the defendant, then it must dismiss the case as the same falls within the exclusive jurisdiction of the Department of Agrarian Reform Adjudication Board.

P vs. DP files a complaint for collection of sum of money worth 500k. During the trial, P was able to prove 100k only

Q: Can the RTC still render judgment?A: Yes, the RTC can still render judgment. I maintain the positive view because the facts alleged in the complaint and the law in force at the time of the commencement of the action determines the jurisdiction of the court.

Laches is defined as the failure or neglect for an unreasonable and unexplained length of time, to do that which, by exercising due diligence, could or should have been done earlier, it is negligence or omission to assert a right within a reasonable length of time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it.Estoppels by laches may be invoked to bar the issue of lack of jurisdiction onlu in cases in which the factual milieu is analogous to that in the cited case. In such controversies, laches should have been clearly present; that is, lack of jurisdiction must have been raised so belatedly as to warrant the presumption that the party entitled to assert it had abandoned or declined to assert it.

Doctrine of laches = Stale Demands; based on the grounds of public policy

It has been held that after voluntarily submitting a cause and encountering and adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court.

DOCTRINE OF PRIMARY JURISDICTION

The Doctrine of Primary Jurisdiction vests in an administrative tribunal the jurisdiction to determine a controversy involving a question requiring the exercise of sound administrative discretion. The resolution of the issues in a given case requires the expertise, specialized skills, and knowledge of the proper administrative bodies because of technical matters or intricate questions involved, then relief must first be obtained in an administrative proceeding before a remedy will be supplied by the courts even though the matter is within the proper jurisdiction of a court.

Where the jurisdiction is vested upon an administrative body, no resort to the courts may be made before such administrative body shall have acted upon the matter.

DOCTRINE OF ADHERENCE OF JURISDICTION

Jurisdiction once acquired continues until the case is finally terminated

Once the court acquires jurisdiction by virtue of a valid complaint, the jurisdiction shall continue up to the end of the case. Intervening facts will not deprive the courts of jurisdiction

Doctrine of Judicial Stability

A judge of a branch of one should not annul the order of a judge of another branch of the same court. Any branch even if it be in the same judicial district that attempts to annul a judgment of a branch of the CFI either exceeds its jurisdiction or acts with grave abuse of discretion amounting to lack of jurisdiction. The various branches of the Court of First Instance being co-equal cannot interfere with the respective cases of each branch, much less a branch’s order or judgment.

- Family Courts issuances of writs are enforceable only within its territorial jurisdiction or within the judicial region to which the Family Court belongs.

- A petition for habeas corpus may be filed in the Supreme Court, Court of Appeals, or with any of its members and if so granted, the writ shall be enforceable anywhere in the Philippines.

What is the test to be followed in determining whether the subject matter of the litigation is incapable of pecuniary estimation?

In determination whether the subject of litigation is incapable of pecuniary estimation, the nature of the principal action or remedy sought must first be determined. If it is primarily for recovery of sum of money, the claim is considered capable of pecuniary estimation, and the jurisdiction would depend on the amount of the claim.

But where the basic issue is something other than the right to recover a sum of money, or where the money claim is incidental to, or a consequence of, the principal relief being sought, the subject of litigation is deemed incapable of pecuniary estimation in terms of money, and is cognizable exclusively by the RTC.

An action for specific performance is incapable of pecuniary estimation, although it also prays for damages (because the claim for damages is merely incidental to the principal relief being sought). But where there is an alternative prayer for the payment of a sum of money in lieu of specific performance, jurisdiction should be based on the sum of money alternatively prayed for.

Declaration of nullity of the document denominated as “Declaration of Heirs and Deed of Confirmation of Previous Oral Partition” is incapable of pecuniary estimation, although the complaint also prayed for the partition of the land subject of the action, as said partition was merely incidental to the main action for declaration of nullity.

An action for appointment of an administrator (or administratrix) for an estate is incapable of pecuniary estimation and is therefore cognizable by the RTC. But probate proceedings for the settlement of estate are within the jurisdiction of either the RTC or MTC depending on the gross value of the estate.

An expropriation suit is incapable of pecuniary estimation regardless of the value of the property involved because its primary consideration is whether the government or any of its instrumentalities has complied with the requisites for the taking of private property. In the main, the subject of an expropriation suit is the government’s exercise of eminent domain, a matter that is incapable of pecuniary estimation. The value of the property to be expropriated is estimated in monetary terms, for the court is duty bound to determine the just compensation for it. This, however, is merely incidental to the expropriation suit.

An action for interpleader under Rule 62 is incapable of pecuniary estimation.

Other examples of actions incapable of pecuniary estimation are: action for support, action for annulment of judgment, actions questioning the validity of mortgage, action for rescission which is the counterpart of specific performance.

Where the complaint, although denominated in the title thereof as one for specific performance, shows that the plaintiff is asking that a deed of sale of a parcel of land be executed in his favor and that a Transfer Certificate of Title covering such land be issued to him, then the action is to be considered one for the recovery of real property and not for specific performance since the primary objective is to regain the ownership and possession of the parcel of land. Hence, the docket fees should be computed on the basis of the value of the property and the amount of related damages claimed, exclusive of interest.

In real action, the court’s jurisdiction is determined by the assessed value of the real property as alleged in the original complaint, BP 129 provides that if the assessed value of the real property subject of the suit does not exceed P20,000 (or P50,000 in M. Manila), the action falls within the jurisdiction of the Municipal Trial Court; and if it exceeds P20,000 (or P50,000 in M.Manila) the action is cognizable by the Regional Trial Court.

It is necessary to state in the original complaint the assessed value of t the property in order to determine whether the court in chich the action is filed has jurisdiction over the subject matter of the suit.

If the action involves ownership and possession of real property, the jurisdiction over the subject matter of the claim is determined by the assessed value, not the market value, thereof pursuant to BP 129.

To determine which court has jurisdiction over the action, the complaint must allege the assessed value of the real property subject of the complaint or the interest thereon.

If the respondent’s complaint is a real action, the Rule requires that the assessed value of the property, or if there is none, the estimated value thereof shall be alleged by the claimant and shall be the basis of computing fees.

HOW JURISDICTION OVER THE PARTIES IS ACQUIRED?

The jurisdiction over the plaintiff or petitioner is acquired by the filing of the complaint, petition or initiatory pleading before the court y the plaintiff or petitioner

The jurisdiction over the defendant or respondent is acquired by the voluntary appearance or submission by the defendant or respondent to the court or by coercive process issued by the court to him, generally by service of summons.

HOW JURISDICTION OVER THE RES IS ACQUIRED?

This is acquired by the actual or constructive seizure by the court of the thing in question, thus placing it in custodial egis, as in attachment or garnishment; or by the provision of law which recognizes in the court the power to deal with the property or subject matter within its territorial jurisdiction, as in land registration proceedings or suit involving civil status or real property in the Philippines of a non-resident alien.

JURISDICTION OVER THE ISSUES

This is determined and conferred by the pleadings filed in the case by the parties, or by their agreement in the pre-trial order or by stipulation, or, at times, by their implied consent as by the failure of a party to object to evidence on an issue not covered by the pleadings, as provided in Sec. 5, Rule 10.

Rules on Jurisdiction

The jurisdiction of the court is determined by the statute in force at the time of the commencement of the action, unless such statute provides for its retroactive application, as where it is curative legislation.

The settled rule is that jurisdiction of the court over the subject matter is determined by the allegations of the complaint, but this rule is not without exception.

The jurisdiction of the court, whether in criminal or civil cases, once it attaches cannot be ousted by subsequent happenings or events although of a character which would have prevented jurisdiction form attaching in the first instance.

The question of constitutionality of a statute must be questioned at the earliest opportunity except in criminal cases where the question may be raised at any stage and, in civil cases, if the determinations of the question is necessary for the decision of the case, even if raised for the first time on appeal.

The jurisdiction of a court over the subject matter is conferred only by the Constitution or the law and that the Rules of Court yield to substantive law.

Jurisdiction cannot be fixed by the agreement of the parties; it cannot be acquired through, or waived, enlarged or diminished by, any act or omission of the parties; neither can it be conferred by the acquiescence of the court.

Questions of jurisdiction may be raised for the first time on appeal even if such issue was not raised in the lower court.

A court motu proprio dismiss a case which is outside its jurisdiction.

The principle of estoppels by laches cane be availed of to bar attacks on jurisdiction.

In case for the recovery of the sum of money, as the collection of a debt, the claim is considered capable of pecuniary estimation because the obligation to pay the debt is not conditioned upon any specific fact or matter. But when a party to a contract has agreed to refund to the other party sum of money upon compliance by the latter of certain conditions and only upon compliance therewith may what is legally due to him under the written contract be demanded, the action is one not capable of pecuniary estimation and is within the jurisdiction of the RTC. The payment of a sum of money is only incidental.

Specific performance has alternative prayer for money – makes it capable of pecuniary estimation

The jurisdiction of the respective courts is determined by the value of the demand and not the value of the transaction out of which the demand arose; that is what the law says in unmistakable terms. The alternative prayer for specific performance is also of the same value, for, as said above, the alternative prayers would not have been made in the complaint if one was more valuable that the other; hence, the alternative performance prayed for, is capable of pecuniary estimation.

Sum of money and/or foreclosure of chattel more than judicial value – capable of pecuniary estimation

Although the purpose of an action is to recover an amount plus interest which comes within the original jurisdiction of the MTC, yet when the said action involves the foreclosure of a chattel mortgage covering personal properties valued at more than P10,000.00, the action should be instituted before the Regional Trial Court.

____________________________________________________________________________________

What determines the jurisdiction of the court is the amount of the plaintiff’s claim, not the value of the personal property sought to be seized by replevin.

A claim of P20,000 as attorney’s fee is merely incidental to the main action, and therefore this amount is not determinative of the jurisdiction of the court.

HOW TO DETERMINE IF THE SUBJECT MATTER IS INCAPABLE OF PECUNIARY ESTIMATION

The nature of the principal action or remedy sought must be first be determined. If it is primarily for recovery of a sum of money, the claim is considered capable of pecuniary estimation, and jurisdiction would depend on the amount of the claim. But where the basic issue is something other than the right to recover a sum of money, or where the money claim is incidental to, or a consequence of, the principal relief being sought, the subject of litigation is deemed incapable of pecuniary estimation in terms of money, and is cognizable exclusively by the RTC. (Singson vs. Isabela Sawmill 88 SCRA 623)

An action for specific performance is incapable of pecuniary estimation, although it also prays for damages (because the claim for damages is merely incidental to the principal relief being sought). But, where there is an alternative prayer for the payment of a sum of money in lieu of specific performance, jurisdiction should be based on the sum of money alternatively prayed for.

The interpretation of the renewal contract in lease agreements; but there is non-payment of rental although the interpretation of renewal clause was also involved the jurisdiction is with the lower court (Teodoro vs. Mirasol)

Remedial Law vs. Substantive Law

Substantive law is that part of the law which creates rights concerning life, liberty, or property or the power of instrumentalities for the administration of public affairs.

Procedural law refers to the adjective laws which prescribe rules and forms of procedure in order that courts may be able to administer justice.

Substantive law creates, defines and regulates rights.

Adjective or remedial law prescribes the method of enforcing the rights or obtaining redress for invasion.

Substantive law is the law which gives or defines the right, and which, by means of proceeding, the court is to administer. Procedure is the mode of proceeding by which a legal right is enforced. (Bustos vs. Lucero 81 Phil 649)

The finality of a judgment does not mean that the Court has lost all its powers nor the case. By the finality of judgment, what the court loses is its jurisdiction to amend, modify or alter the same. Ever after the judgment has become final, the court retains its jurisdiction to execute and enforce it. There is a difference between the jurisdiction of the court to execute its judgment and its jurisdiction to amend. Modify or alter the same. The former continues even after the judgment has become final. For after the judgment has become final, facts and circumstances may transpire which can render the execution unjust or impossible.

The power to control the execution of its decision is an essential aspect of jurisdiction. It cannot be the subject of substantial subtraction for our Constitution vests the entirety of judicial power in one Supreme Court and in such lower courts as may be established by law.

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of congress to repeal, alter, or supplement rules concerning pleading, practice and procedure.

An action for rescission of contract is one which is incapable of pecuniary estimation. Therefore, the docket fee for its filing should be the flat rate of 400.

Q: May a RTC annul the judgment of another RTC?

A: No. Only the Court of Appeals has jurisdiction to annul the judgment of a Regional Trial Court.

But if what is sought to be annulled is a judgment of the Municipal Trial Court, then the action for annulment should be filed with the Regional Trial Court because an action for annulment of judgment of a Municipal Trial Court is incapable of pecuniary estimation.

In an action for the recovery of property, the docket fee should be based on the value of the property sought to be recovered.

Note, however, that although the payment of the proper docket fee is a jurisdictional requirement, the trial court may allow the plaintiff to pay the same within a reasonable time but before the expiration of the applicable prescriptive or reglementary period. If the plaintiff fails to comply with this requirement, the defendant should timely raise the issue of jurisdiction; otherwise, he should be considered in estoppels.

Q: Suppose the plaintiff failed to pay the correct amount of docket fee, may the trial court dismiss the complaint?

A: No, the trial court may not dismiss the complaint. Instead, the trial court should allow the plaintiff to pay the correct amount of docket fee within a reasonable time but before the expiration of the applicable prescriptive of reglementary period. If the plaintiff fails to pay within the period granted to him by the trial court, then the defendant must move to dismiss the complaint on the ground of lack of jurisdiction. The defendant who fails to timely raise the issue of jurisdiction would be considered in estoppel.

If the demand does not exceed P300,000 (or P400,000 in M,Manila) the complaint should be filed in the Municipal trial court. The action is a personal action. In determining what court will have jurisdiction in personal actions, damages of whatever kind (as well as interest, attorney’s fees, litigation expenses, and costs) shall be excluded if they are merely incidental to, or a consequence of, the main cause of action.

Jurisdiction of the RTC – Where in a personal action the claim for damages is the main cause of action (or one of the causes of action), the amount of such claim shall be considered in determinind the jurisdiction of the courts.

The Supreme Court’s original jurisdiction to issue extraordinary writs should be exercised only where absolutely necessary, or where serious and important reasons therefor exist. The Supreme Court’s original jurisdiction to issue writs should be allowed only when there are special and important reasons therefor clearly and specifically set out in the petition.

Q: What are the cases that the Supreme Court should resolve en banc?

A: Cases in which the constitutionality or validity of any treaty, international or executive agreement, law or executive order, or presidential decree, proclamation, order, instruction, ordinance, or regulation is in question.

2. criminal cases in which the appealed decision imposes the penalty of death

3. cases raising novel questions of law

4. cases involving decisions, resolutions, or orders of the Commision on Elections and Commission on Audit

5. Cases where the penalty to be imposed is the dismissal of a judge, officer or employee of the judiciary, disbarment of a lawyer, or either the suspension of any of them for a period of more than one (1) year or a fine of exceeding P10,000 or both

6. Cases where a doctrine or a principle laid down by the Court en banc or in division may be modified or reversed.

7. cases assigned to a division which in the opinion of at least three members thereof merit the attention of the Court en banc and are acceptable to a majority of the actual membership of the Court en banc.

8. all other cases as the Court en banc by a majority of its actual membership may deem of sufficient importance to merit its attention.

Rule 1

The Rules of Court have the force and effect of law. They are not penal statures and cannot be applied retroactively, although Procedural rules may be applied on cases pending at the time of their passage and retroactive in that sense.

RULE 10 AMENDMENT AND SUPPLEMENTAL PLEADINGS

Q: How is amendment of a pleading made?

A: Amendment is made by

a. By adding or striking out an allegation or the name of any partyb. By correcting a mistake in the name of a party or a mistaken or inadequate allegation or description in any other respect.

Q: When is amendment (of a pleading) a matter of right?

A: 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. After a responsive pleading has been served, substantial amendments may be made only upon leave of court.

Unlike under the old rule, amendment may now substantially alter the cause of action or defense.

Q: P file a complaint against D. Within the reglementary period of filing an answer, D filed a motion to dismiss, serving P with a copy thereof. May P still amend his complaint as a matter of right?

A: Yes, because a motion to dismiss is not a responsive pleading.

Q: Suppose in the problem presented, the court dismissed the complaint on motion of D. On July 16, 2001, P was served with a copy of the order of dismissal. May P still amend his complaint as a matter of right on July 30, 2001?

A: Yes. As of July 30, 2001, no responsive pleading has yet been served, and the order of dismissal has not yet become final.

Q: X filed a complaint against Y and Z, asserting claims against each of them. Y filed his answer, while Z filed a motion to dismiss. May X still amend his complaint as a matter of right?

A: X may amend his original complaint as against Y, but only with leave of court – not as a matter of right anymore because Y has already file his answer.

But, as against Z, X may still amend his original complaint as a matter of right. The fact that Y filed his answer does not bar X from amending his original complaint once as a matter of right against Z.

Where some but not all the defendants have answered, the plaintiff may still amend his complaint once, as a matter of right, in respect to claims asserted against the defendants who have already filed their answer.

Q: If amendment is a matter of right, but the trial court denies the amendment, what is the remedy against the court’s denial?

A: The remedy is mandamus.

Q: If amendment requires leave of court, but the trial court refused to grant leave for the amendment of the pleading, what is the remedy against the court’s refusal?

A: The remedy is certiorari if it can be shown that the trial court’s refusal to grant leave is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction.

What are the limitations to the right of a party to amend his pleading?

The trial court may refuse to amendment in the following instances:

a. If a responsive pleading has already been served, and the motion for leave to amend is made with intent to delay;b. If the purpose of the amendment is to confer jurisdiction upon the court; orc. If the purpose of the amendment is to cure the defect of a non-existent cause of action.

When it is evident that the court has no jurisdiction over the person and the subject matter, then the court may refuse amendment of the defective pleading and order the dismissal of the case.

If the court has no jurisdiction over the subject matter of the action, the only power that it has is to dismiss the case. A decision rendered by a court without jurisdiction is a total nullity.

The amendment will not cure the defect of want of jurisdiction because the right to amend is subject to the limitation that amendment cannot be made if the purpose is confer jurisdiction upon a court.

Where the court has no jurisdiction, the only power it has is to dismiss the complaint.

An amendment is not allowed where the court has no jurisdiction over the original complaint and the purpose of the amendments is to confer jurisdiction upon the court, or where the action originally pleaded in the complaint is outside the jurisdiction of the courts.

What is “amendment to conform to the 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, and there can be an amendment to conform to evidence. The amendment may be made, upon motion of any party, even after judgment. But failure to amend does not affect the result of the trial of the issues.

What is “amendment to authorize presentation of evidence?”

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, to authorize the presentation of evidence.

A complaint that states no cause of action may be cured in one of two ways:

a. By presentation of evidence to prove the cause of action, in which case the complaint may be amended to conform to evidence; or

b. If the evidence is objected to and the trial court sustains the objection, by amendment of the complaint with leave of court to authorize presentation of evidence.

Failure of a party to raise a defense in his pleading may be cured in one of two ways;

a. By presentation of evidence to prove the defense that is not raised, in which case the answer may be amended to conform to the evidence; or

b. If the evidence is objected to and the trial court sustains the objection, by amendment of the answer with leave of court to authorize presentation of evidence:

What are the effects of an amended pleading?

a. An amended pleading supersedes the pleading that it amends;b. Admission in the superseded pleading may be received in evidence against the pleader;c. Claims and defenses alleged in the superseded pleading but not incorporated in the amended pleading shall be deemed

waived.

Amended pleading vs. Supplemental pleading

a. The filing of an amended pleading may either be a matter of right or with leave of court; the filing of a supplemental pleading is always with leave of court;

b. Amended pleading alleges facts that occurred before the filing of the original pleading; supplemental pleading alleges facts occurring after the filing of the original complaint.

c. Amended pleading supersedes the original pleading; supplemental pleading does not supersede the original pleading but assumes that the original pleading is to stand.

RULE 11 WHEN TO FILE RESPONSIVE PLEADINGS

What are the periods for filing of responsive pleadings?

a. Answer to the complaint – 10 days after the service of summons if the case is governed by the Rule on Summary Procedure

b. Answer to the complaint – 15 days after service of summons;

c. Answer to the amended complaint – 15 days after service of a copy thereof if amended complaint is filed as a matter of right; 10 days from the notice of the order admitting the amended complaint if the filing thereof requires leave of court

d. Answer of a defendant foreign juridical entity – 15 days if summons is served on its resident agent; 30 days from receipt by the home office of the summons if summons is served on the government official designated by law to receive the same.

e. Answer to third-(fourth, etc.) party complaint – 15 days from service of summons.

f. Answer to complaint-in-intervention – 15 days form notice of the order admitting the complaint-in-intervention;

g. Answer to the counterclaim/cross claim – 10 days from service thereof (but if the counterclaim is compulsory, it need not be answered);

h. Answer to the supplemental complaint – 10 days from notice of the order admitting the supplemental complaint;

i. Answer where summons is served through any of the modes of extraterritorial service on a non-resident defendant who is not in the Philippines – within reasonable time which shall not be less than 60 days after notice as the court may specify in its order granting leave to effect extraterritorial service of summons;

j. Reply – 10 days from service of the pleading responded.

A complaint is not a responsive pleading; it is a pleading the filing of which commences the civil action.

When should a complaint be filed?

It should be filed upon the accrual of the cause of action, or at any time thereafter but before such cause of action is barred by prescription.

COMPLETENESS of SERVICE

The registry notice must indicate the nature of contents of the mail matter in order to have constructive notice.

The filing of affidavit of service is not substantial compliance of Sec. 11, Rule 13, requiring Explanation in case the mode of service is other than Personal service.

Absence of Written explanation may be excused if the impracticability of personal service is apparent from the pleadings (distance between the offices of the lawyers).

RULE 12 BILL OF PARTICULARS

What is the purpose of a bill of particulars

Its purpose is to make more definite any matter averred with sufficient definiteness in a pleading to enable the adverse party to properly prepare his responsive pleading.

The office of a bill of particulars is limited to making more particular or definite the ultimate facts in a pleading, not to supply evidentiary matters.

Q: the complaint was shabbily crafted, the allegations therein are ambiguous, vague, indefinite, and uncertain. What is the remedy of the defendant?

A: the remedy of the defendant is to file a motion for a bill of particulars, pointing out the defects complained of, the paragraphs wherein they are contained, and the details desired.

But, if because of such ambiguity, vagueness, indefiniteness, or uncertainty, the complaint fails to state a cause of action, then the remedy of the defendant is to file a motion to dismiss on the ground that the complaint states no cause of action under Rule 16.

When may a party file a motion for a bill of particulars?

A party may file a motion for a bill of particulars before he responds to a pleading. Thus, a defending party may, before filing his answer, move for a bill of particulars. But if the pleading is a reply, he must file his motion within ten days from service thereof.

A defender who has already filed an answer cannot anymore file a motion for a bill of particulars.

What does the rule require the clerk of court to do upon the filing of a motion for a bill of particulars?

-Upon filing of the motion for a bill of particulars, 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.

A motion for a bill of particulars is litigable motion and should therefore contain a notice of hearing. But , it is one motion which the court may deny or grant outright even without a hearing.

Q: On motion of the defendant, the court ordered the plaintiff to file a bill of particulars. When and how may the plaintiff comply with the order of the court?

A: the plaintiff must comply with the order of the court within ten (10) days from notice of the order, unless the court has fixed a different period.

The plaintiff may file the bill of particulars either in a separate pleading or in an amended pleading, serving the adverse party with a copy thereof.

Q: Is a bill of particulars a pleading?

A: No, it is not a pleading, but it becomes part of the pleading for which it is intended.

Non compliance by the plaintiff

If the plaintiff does not obey the order of the court or in case of insufficient compliance, the court may order the striking out of the pleading or the portions thereof to which the order was directed.

The court may even dismiss the complaint under Sec. 3, Rule 17 for failure of the plaintiff to obey an order of the court.

Q: If a defendant files a motion for a bill of particulars, when he must file his answer?

A: the defendant must file his answer within the period to which he was entitled to at the time of the filing of his motion, which shall not be less than five days in any event.

RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS, AND OTHER PAPERS

What is filing? Service?

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 a 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.

What are the modes of filing of pleadings, motions, judgments, resolutions, orders, or other papers?

a. Personal filing – by delivering the copy personally to the Clerk of Court;

b. Filing by registered mail – Note that filing by ordinary mail is not allowed

What are the modes of service of pleadings or motions?

a. Personal serviceBy delivering personally a copy to the party or his counsel, or by leaving it in his office with his clerk or with a person having charge thereof. If no person is found in his office, or his office is not known, or he has no office, then by leaving the copy between the hours of eight in the morning and six in the evening, at the party’s or counsel’s residence, if known, with a person of sufficient age and discretion then residing therein.

b. Service by mail which may either be by registered mail or by ordinary mail.Note, however, that service may be done by ordinary mail if no registry service is available in the locality of either the sender or the addressee.

c. Substituted service.By delivering the copy to the Clerk of Court, with proof of failure of both personal service and service by mail.

What are the modes of service of judgments, final orders, or resolutions?

a. Personal serviceb. Service by registered mailc. Service by publication, but this mode of service can only be utilized if the party is summoned by publication and he did not

appear in the action.

Q: A judgment was sent to the defendant by ordinary mail. When does the judgment become final and executor?

A: The judgment will never become final and executor because the service thereof is fatally defective. Service of judgment and final orders by ordinary mail is not authorized.

One requisite of a valid judgment is that it must be in writing. If a judgment is not in writing, as when it is merely dictated in open court, there can be no way it could be served on the parties through any of the modes authorized by the rules for service of judgments.

Q: What is the rule on priorities of service and filing of pleadings and other papers?

A: The rule is that whenever practicable, the service and filing of pleadings and other papers shall be done personally. Except with respect to papers emanating from the court, a resort to other modes must be accompanied by a written explanation why the service or filing was not done personally. A violation of this rule may be cause to consider the paper as not filed.

The rule on priorities of service is mandatory.

Q: What is the reason for the priority of service and filing of pleadings and other papers?

A: The reasons are:

a. To expedite action or resolution on a pleading, motion, or other paper;b. To do away with the practice of some lawyers who, wanting to appear clever, resort to less than ethical practices, such as

serving or filing pleadings by mail to catch opposing counsel off-guard, thereby leaving him with little or no time to prepare his responsive pleading or opposition.

Q: When is service? (What is the rule regarding completeness of service?)

A: If by personal service, it is complete upon actual delivery.

If by ordinary mail, it is complete upon the expiration of ten (10) days after mailing, unless the court otherwise provides.

If by registered mail, it 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.

If by substituted service, it is complete at the time of the delivery of the a copy to the clerk of court.

Q: What is lis pendens? Notice of lis pendens?

A: A lis pendens is a Latin term which literally means “a pending suit or pending litigation.”

A notice of lis pendens is an announcement to the whole world that a particular real property is in litigation, serving as a warning that one who acquires an interest over the said property does so at his own risk, or that he gambles on the result of the litigation over the said property.

Q: May a notice of lis pendens be sought as a principal action for relief? (Is there an action for annotation of lis pendens?)

There is no such action as one for “ annotation of lis pendens.” A notice of lis pendens is not and cannot be sought as a principal action for relief. The notice is but an incident to an action. As a settled rule, notice of lis pendens may be annotated only where there is an action or proceeding in court which affects title or possession of real property.

Q: Suppose the ROD denies the annotation of the notice of lis pendens, what is the remedy against such denial?

A: The remedy against such denial is to appeal the same en consulta to the Commissioner of Land Registration. The resolution of the Commissioner may then be appealed to the Court of Appeals, which has exclusive jurisdiction to decide the same within the period and in the manner provided in RA 5434.

In what action may a party record a notice of lis pendes?

In an action affecting the title or the right of possession of real property, the plaintiff and the defendant, when affirmative relief is claimed in his answer, may record in the Office of the Registry of Deeds of the province in which the property is situated a notice of pendency of the action.

A notice of lis pendens may be recorded in the following cases:

a. In an action to recover possession of real estate;b. In an action to quite title thereto;c. In an action to remove clouds therefrom;d. In an action for partition; ande. In any other proceedings of any kind in court directly affecting the title to the land or the use or occupation thereof or the

buildings thereon.

What are the grounds upon which notice of lis pendens may be cancelled?

a. the notice of lis pendens is for the purpose of molesting the adverse party;b. the notice of lis pendens is not necessary to protect the rights of the party who caused it to be recorded.

A notice of lis pendens is extrajudicial in the sense that it may be recorded in the office of the register of deeds without the approval of the court in which the action is pending. But once recorded, the notice of lis pendens may be cancelled only upon order of the court on any of the grounds mentioned above. Thus, the court cannot order the cancellation of the notice of lis pendens upon an ex parte motion (or without notice to the party who caused the notice to be recorded)

A notice of lis pendens is proper in the following cases, viz.:a) An action to recover possession of real estate;b) An action to quiet title thereto;c) An action to remove clouds thereon;d) An action for partition; ande) Any other proceedings of any kind in Court directly affecting the title to the land or the use or occupation thereof or the buildings thereon.

RULE 14 SUMMONS

Q: What is summons?

A: It is a writ addressed to the defendant, directing him to answer within the time fixed by the rules the complaint filed against him by the plaintiff, with a notice that unless he so answer, plaintiff will take judgment by default and may be granted the relief applied for.

Q: Is summons required for counterclaims?

No, summons is not required for counterclaims, whether compulsory or permissive.

Since the summons is not required for permissive counterclaim, the plaintiff as defending party may be declared in default if he fails to answer the permissive counter claim within 10 days from service upon him of such permissive counterclaim.

Also, summons is not required for complaint in intervention.

An alias summons may be issued by the Clerk of Court upon demand by the plaintiff

a. If the summons has been lost; orb. If the summons is returned without being served on any or all of the defendants.

Q: How may the trial court acquire jurisdiction over the defendant?

A: The trial court may acquire jurisdiction over the person of the defendant in one of the following ways;

a. By valid service of summons upon him;b. By defendant’s voluntary appearance in the action.

Although the service of summons upon the defendant is defective, the court still acquires jurisdiction over his person if he voluntarily appears in the action – as when he files his answer or a motion for extension of time to file answer.

Modes of service of summons?

a. Service in person to the defendant. By handing a copy of the summons to the defendant in person or, if he refuses to receive and sign for it, by tendering it to him.

b. Substituted service. By leaving a copy of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or by leaving a copy of the summons at the defendant’s office or regular place of business with some competent person in charge thereof. But substituted service may be resorted to only if summons cannot be served in person to the defendant within a reasonable time.

c. Service by publication.

How substituted service of summons be effected

Substituted service of summons may be effected by:

a. By leaving a copy of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein;

b. By leaving a copy of the summons at defendant’s office or place of business with some competent person in charge thereof

But the substituted service is proper only if for justifiable causes, summons cannot be served on the defendant in person within a reasonable time.

The impossibility of service to the defendant in person must be indicated in the sheriff’s return or proof of service, otherwise the substituted service is void.

In what instance may service of summons by publication be made?

Service of summons by publication may be made but only with leave of court:

a. Where the identity of the defendant is unknown;

b. Where the whereabouts of the defendant are unknown;

c. Where the defendant does not reside or is not found in the Philippines but the suit can properly be maintained against him in the Philippines, it being in rem or quasi in rem; and

d. Where the defendant is a resident of the Philippines but is temporarily out of the country.

The return of summons must show that there was earnest effort that was actually exerted and there was also positive step taken by the process server to locate and serve the summons personally on the defendants

Only where the service of summons cannot be made in person on the defendant that substituted service may be resorted to. The proof of service of summons or process server’s return must:

a. Indicate the impossibility of service of summons in person on the defendant within a reasonable time;b. Specify the efforts exerted to locate the defendant;c. State that the summons was served upon a person of sufficient age and discretion who is residing in the address, or who

is in charge of the office or regular place of business of the defendant.

Failure to comply faithfully, strictly and fully with all the foregoing requirements renders the substituted service of summons ineffective.

Service of summons by publication

Extraterritorial service of summons or summons by publication applies only when the action is in rem or quasi in rem. An action in rem is an action against the thing itself, instead of against the defendant’s person.

In action quasi in rem, an individual is named as defendant, but the purpose of the action is to subject that individual’s interest in a piece of property to the obligation or loan burdening it.

Where the action is in personam and the defendant is in the Philippines, summons may be served in person to the defendant or by substituted service.

Service of summons on a non-resident defendant who is not found in the Philippines

a. By personal service

b. By publication in a newspaper of general circulation is 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;

c. In any other manner the court may deem sufficient.

The foregoing are the modes of extraterritorial service of summons, and they may be effected only with prior leave of court.

In what instances may a non-resident defendant who is not found in the Philippines be sued in the Philippines, and therefore, the summons may be effected upon him by extraterritorial service

The following are the instances;

a. When the action affects personal status of the plaintiff

b. When the action relates to, or the subject matter of which is, property within the Philippines, in which the defendant has or claims lien or interest, actual or contingent;

c. When the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines;

d. When the defendant’s property has been attached within the Philippines

How may summons be served on a resident defendant who is temporarily out of the country?

He may be served with summons as follows:

a. By substituted service;

b. By personal service outside of the country, with leave of court;

c. By publication, with leave of court; or

d. Any other manner the court may deem sufficient;

Summons by registered mail is valid only if served extraterritorially upon a non-resident defendant who is not found in the Philippines, or upon a resident defendant who is temporarily out of the country, provided the court deems such service of summons sufficient.

Who may serve summons?

Summons may be served:

a. By the sheriff, his deputy, or other proper court officer, or for justifiable reasons by any suitable person authorized by the court issuing summons;

b. By the officer having the management of the jail or institution, if the defendant is a prisoner confined therein, in which case such officer is deputized as a special sheriff for said purpose.

Upon whom shall service of summons be made?

GR: Service of summons shall be made on the defendant

XPN: if the defendant is

a. An entity without juridical personality – it may be effected upon all the defendants by serving service of summons upon any one of them, or upon the person in charge of the office or place of business maintained in such name.

b. A minor or incompetent – service shall be made upon him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem.

c. The Republic of the Philippines – service may be effected on the Solicitor Generald. A province, city or municipality or similar corporations – service may be effected on its executive head or on such

other officers as the law or the court may direct.

If the defendant is a foreign private corporation which transacted business in the Philippines, upon whom may summons be served?

Service of summons may be made:

a. On its resident agent designated in accordance with law for that purpose; or

b. If there be no agent, on the government official designated by law to that effect;

c. On any of its officers or agents within the Philippines

Government officials designated by law upon whom summons may be served

a. Insurance Commissioner, in the case of foreign insurance company;b. The Superintendent of Banks, in the case of a foreign banking corporation;c. The Securities and Exchange Commission, in the case of other foreign corporation duly licensed to do business in the

Philippines

Whenever service of summons is so made, the government office or official served shall transmit by mail a copy of the summons or other legal process to the foreign corporation at its home or principal office. The sending of such copy is a necessary part of the service.

If the defendant is a domestic private juridical entity, on whom may service of summons be made?

Service of summons may be made on its president, managing partner, general manager, corporate secretary, treasurer, or in house counsel.

MODES OF SERVICE

IN PERSON(Sec. 6)–priority- resort to other modes not allowed unless summons could not be served in person within reasonable time.

SUBSTITUTED SERVICE (Sec. 7) –if, for justifiable causes, summons could not be served in person within reasonable time.

Sheriff can only employ substituted service after he makes an attempt at personal service. His failure to serve by personal service must be reflected in his RETURN, otherwise, the service is ineffective.

presumption of regularity in the performance of official functions by the sheriff is not applicable in this case where it is patent that the sheriff's return is defective.

Not valid service without the return explaining why prior resort to service in person was not made.

Not valid if hastily and capriciously resorted to without actually exerting any genuine effort to locate respondents.

VALID even if made through security guard if sheriff was prevented from entering subdivision through instruction of defendant and defendant failed to controvert such a report by the sheriff.

BY PUBLICATION

To what cases applicable: Applicable only in in rem and quasi in rem it was ruled to be applicable in action in personam where the defendant’s whereabouts are unknown. Requirements and Proof of service (including requisite affidavits), by publication must be strictly

complied with.

SERVICE OF SUMMONS IN SPECIFIC INSTANCES:

Service of summons through the secretarial staff, NOT VALID Must be made on the officer named in the statute; DEFECT CURED: But Improper service to legal secretary cured not only by admission of actual

receipt, but for asking affirmative reliefs in several motions

As amended under SC AM No. 11-3-6, it provides for service of summons to foreign corporations not registered (licensed) or has no resident agent, similar to that of extra-territorial service to non-resident individuals not found in the Philippines under Sec. 15.

o By personal service coursed through appropriate court in the foreign country with assistance of DFA.o By publication once in a newspaper of general circulation in the country where the defendant may be found and

by serving copy of the summons and the court order by registered mail at the last known address of the defendant

o By facsimile or any recognized electronic means that could generate proof of service, or o By such other means as the court may in its discretion direct.

Unknown defendant or whereabouts unknown-(Sec. 14)–with leave, by publication

Available even in action inpersonam; Affidavit of Service- not to be executed by the clerk of court.

Extra-territorial service (Sec. 15) – in rem/quasi-in-rem cases where the defendant is non-resident and not found in the Philippines-

a).personal service effected out of the Philippinesb).publication and sending a copy to the last known addressc).in any other manner the court may deem sufficient.

Example- Registered mail. Does not apply in action in personam like collection of money even if attachment is prayed

for if no property is actually attached.

Resident temporarily out of the Philippines(Sec. 16)– with leave of court, MAY BE SERVED through extra-territorial service. (Sec. 15) or Substituted Service (Sec. 7)

Substituted service is the normal method; Extra-territorial service only when substituted service is not feasible;

Voluntary Appearance (Sec. 20) Appearance in whatever form, without expressly objecting to the jurisdiction

of the court over the person, is a submission to the jurisdiction of the court over the person.

Filing of a motion for extension considered voluntary appearance

The filing of a compulsory counterclaim in an ANSWER ad cautelamis not voluntary appearance COMMENT: By seeking relief under the counterclaim, is the counterclaimant (defendant) not deemed to have submitted to the jurisdiction of the court?

In case of amendment to the complaint, it does not require new summons; In case of amendment while defendant is declared in default, new summons should be issued on amended complaint as the new matters subject amendment cannot bind the defendant unless new summons was served.

RULE 15 MOTIONS

A motion is an application for relief other than by a pleading.

Requisites of a valid motion?

a. It must be in writing, except if made in open court or in the court of a hearing or trial;

b. It must state the relief sought to be obtained and the grounds upon which it it based, and if required by the rules or necessary to prove facts alleged therein, shall be accompanied by supporting affidavits and other papers;

c. It shall be set for hearing by the applicant, except for a motion which the court may act upon without prejudicing the rights of the adverse party;

d. It must contain a notice of hearing addressed to all the parties concerned, specifying the time and date of the hearing which must not be later than ten (10) days after the filing thereof;

e. It must be served, together with the notice of hearing thereof, on the adverse parties at least three (3) days before the date of the hearing;

f. There must be proof of service of the motion.

GR: Motions must be in writing

XPN:

a. motions for continuance made in the presence of the adverse party

b. motions made in open court or in the course of a hearing or trial.

What is an omnibus motion?

It is a motion that attacks a pleading, order, judgment, or proceeding.

A motion to dismiss attacks a pleading. A motion for reconsideration (or a motion for new trial) attacks an order, judgment, or proceeding.

What is the omnibus motion rule?

It is the rule that requires a motion that attacks a pleading, order, judgment, or proceeding to include all objections and defenses then available, and those not included shall be deemed waived.

Requirements:

a. in writing;

b. contents& form

c. notice of hearing, exception (Sec.4)

* Notice of Hearing not required in ex parte motions (e.g. extension)-Defect of lack of notice and/or proof of service may be cured if court allowed the party to comment on the motion (for execution)

* should be served to ensure receipt 3 days before hearing (otherwise the MR did not toll the reglementary period of appeal

EXCEPTION:

(1) where a rigid application will result in a manifest failure or miscarriage of justice especially if a party successfully shows that the alleged defect in the questioned final and executory judgment is not apparent on its face or from the recitals contained therein;

(2) where the interest of substantial justice will be served;

(3) where the resolution of the motion is addressed solely to the sound and judicious discretion of the court; and (4) where the injustice to the adverse party is not commensurate with the degree of his thoughtlessness in not complying with the procedure prescribed.

- Ex parte motions for extension do not require notice as it is directed to the sole discretion of the court.

GR: The affidavit of service by registered mail must be made by the person who actually mailed; the registry return receipt must indicate what was mailed

Exception: when the adverse party actually received a copy of the motion and had opportunity to oppose the same.

The lack of notice and/or proof of service is cured when the other party is given opportunity to comment on the motion for execution.

RULE 16 MOTION TO DISMISS

When may a motion to dismiss be filed? – and upon what grounds?

Within the time for but before filing the answer to the complaints, a motion to dismiss may be made on any of the following grounds:

a. The court has no jurisdiction over the person of the defending party;b. The court has no jurisdiction over the subject matter of the claim;c. Venue is improperly laid;d. The plaintiff has no legal capacity to sue;e. There is another action pending between the same parties for the same cause (litis pendens, litis pendentia, or auter

action pendant);f. The cause of action is barred by a prior judgment (res judicata) or by the statute of limitations (prescription)g. The pleading asserting the claim states no cause of action;h. The claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished;i. The claim on which the action is founded is unenforceable under the provisions of the statute of frauds;j. A condition precedent fro filing the claim has not been complied

Any of the foregoing grounds for dismissal may be pleaded as affirmative defenses in the answer. If no motion to dismiss has been filed, the defendant may move for a preliminary hearing on his affirmative defenses as if a motion to dismiss has been filed. And, if the court orders dismissal and the defendant, in his answer, has asserted a counterclaim against the plaintiff, the dismissal is limited to the complaint, and the defendant may prosecute his counterclaim in the same or separate complaint.

If the defendant first files a motion to dismiss, but the same is denied by the court, he may still plead the grounds he has invoked in his motion to dismiss as affirmative defense in his answer. But, he cannot ask anymore for preliminary hearing on those affirmative defenses as he had already filed a motion to dismissed which was denied by the court.

If the defendant files a motion to dismiss, is he required to present evidence at the hearing of his motion?

Yes, if questions of fact are involved, he should present his evidence thereon. Should the case go to trial, the evidence presented during the hearing shall automatically be part of the evidence of the party presenting the same

On questions of law, he will simply submit his argument thereon.

Requisites of lis pendens (litis pendencia or auter action pendant)

The following:

a. Identity of parties, or at least such as representing the same interests in both actions;b. Identity of rights asserted and relief prayed for, the reliefs being founded on the same facts;c. Identity in both cases is such that the judgment that may be rendered in the pending case would, regardless of which

party is successful, amount to res judicata in the other.

As to the first requisite, the rule requires only substantial, not absolute, identity of parties. There is substantial identity of parties when there is community of interest between a party in the first case and a party in the second case, even if the latter was not impleaded in the first case.

Priority-in-time rule

Two identical civil actions are pending between the same parties, and one case is filed earlier than the other, the latter case should be dismissed on the ground of litis pendencia.

Priority in time rule must yield to the criterion of “more appropriate action”. Thus, it is the first case that should be dismissed if the second case is more appropriate. The rule in litis pendentia does not require that the later case should yield to the earlier case. What is required merely us that there be another pending action, not a prior pending action.

Considerations which determines which should be dismissed on ground of litis pendentia

a. Date of filing, with preference generally given to the first action filed to be retainedb. Whether the action sought to be dismissed was merely to preempt the later action or to anticipate its filing

and lay the basis for its dismissal; andc. Whether the action is the appropriate vehicle for litigating the issues between the parties

Where the litigant engage in forum shopping, the other party may ask for the summary dismissal of the two cases. 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.

What are the requisites of res judicata?

a. Former judgment must be final;b. It must have been rendered by a court having jurisdiction over the subject matter and the parties;c. It must be a judgment or order on the merits;d. There must be between the first and second actions identity of the parties, identity of subject matter, and identity of

causes of actions.

In order that a judgment rendered in a case may operate as a res judicata in a subsequent case, it is essential that the cause of action in the two cases should be the same.

The doctrine of res judicata is founded upon two grounds:

a. Public policy and necessity which makeit the interest of the State that there should be an end to litigation (republicae ut sit finis litium)

b. The hardship on the individual that he should be vexed twice for the same cause (nemo debet bis vexare et eadem causa)

No cause of action

in determining whether the complaint states no cause of action, the court need not go beyond the four corners of the complaint. In order to sustain a dismissal on the ground that the complaint states no cause of action, the insufficiency of the cause of action must appear on the face of the complaint, and the test of 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 complaint.

Lack of legal capacity to sue vs. lack of legal personality to sue?

Lack of legal capacity to sue as a ground for a motion to dismiss, means that the plaintiff is not in the exercise of his civil rights, or does not have the necessary qualification to appear in the case, or does not have the character or representation he claims.

If a plaintiff lacks legal personality to sue because he is not the real party-in-interest, the ground for dismissal is that the complaint states no cause of action.

REMEDY if plaintiff if motion to dismiss is granted

a. Refile his complaint, subject to certain exceptionsb. Appeal from the order of dismissal

But the plaintiff cannot anymore refile his complaint if the dismissal thereof is based on the any of the following grounds:

a. That the cause of action is barred by prior judgment;

b. That the cause of action is barred by the statute of limitations;

c. That the claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished;

d. That the claim on which the action is founded is unenforceable under the provisions of the statute of frauds.

If the complaint is dismissed on any of said grounds, the only remedy of the plaintiff is to appeal from the order of dismissal

What must the court do if a motion to dismiss is filed before the court?

The court, after hearing, may either:

a. Dismiss the action or claim;b. Deny the motion;c. Order the amendment of the pleading.

The court cannot defer resolution on the motion to dismiss.

If the defendants motion to dismiss is denied, within what time must he file his answer?

No jurisdiction over the person of defending party - May be waived by voluntary appearance. No waiver of this defense even if invoked with the other grounds.

Forfeiture proceedings- being in rem proceedings- summons by publication may be allowed.

No jurisdiction over the subject matter - determined from the allegations of the complaint and the law prescribing jurisdictions.

Improper venue –

The court cannot motuproprio dismiss the case on improper venue If erroneously denied, the remedy is PROHIBITION Objection impliedly waived if movant goes to trial.

No legal capacity to sue – The plaintiff is not in the full possession of his civil rights, or he does not have the character or representation he claims.

Townsite sales applicants cannot ask for reversion. If a plaintiff loses his capacity to sue during the pendency of a case, the defendant should be allowed to file a motion to

dismiss, even after the lapse of the reglementary period for filing a responsive pleading

Litis pendentia- (or lis pendens or auter action pendant)

Litispendentia applied even if same cause was pending in another proceeding, not an action(before the LMB)

No litis pendentia - if a proper after-acquired counterclaim is made the subject of a separate action.

Priority in time rule

More appropriate action test or anticipatory test

considerations predominate in the ascending order of importance in determining which action should prevail:

(1) the date of filing, with preference generally given to the first action filed to be retained;

(2) whether the action sought to be dismissed was filed merely to preempt the later action or to anticipate its filing and lay the basis for its dismissal; and

(3) whether the action is the appropriate vehicle for litigating the issues between the parties.

Independent action to collect civil liability on a BP 22 case is dismissible on litis pendentia

res judicata

Bar by prior judgment [Rule 39, Sec. 47 (b)]o Final judgment, jurisdiction over the subject matter and parties, identity of parties, subject matter and causes of

action between the first and second action. The inclusion of an alternative relief for payment of the loan in replevin case, bars a subsequent

action for deficiency.

Failure to state a cause of action-

There is failure to state a cause of action if filed not against a real party in interest including one not brought by a real party in interest.

Condition precedent for filing the claim has not been complied with. – (lack of cause of action) such as:

No allegation as to earnest efforts exerted towards settlement among members of the same family (Art. 150 Family code). Failure to allege may be cured by amendment if there is actual efforts exerted towards settlement

Does not apply where compromise is not allowed such as civil status, validity of marriage or legal separation, ground for legal separation, future support, jrusideiction and future legitime. (Art. 2035, Civil Code.

Non exhaustion of administrative remedies

Non referral to the barangay lupon where the action requires barangay conciliation.

DOES NOT APPLY to:

o where one of the parties is an estate;

o Where there are several plaintiffs or defendants, and one of them is the government or its subdivisions or

instrumentality, a confrontation should still be undertaken among the parties.o does not apply to labor disputes

o Where the complaint states that the address of the plaintiff as “Baguio post office”, it does not necessarily imply

that plaintiff is a resident of Baguio just like the defendant, and barangay conciliation is not necessary.

EFFECT OF dismissal (Sec. 5)- remedies available (RPEU)

subject to the right of appeal, the dismissal on ground of res judicata, statute of limitations, extinction of the claim or unenforceability (statute of frauds), BARS the refiling.

By moving for the dismissal of the complaint, instead of Answer and the complaint is dismissed, the defending party is deemed to have waived any compulsory counterclaim.

RULE 17 DISMISSAL OF ACTIONS

May the plaintiff dismiss his own complaint? How?

Yes, the plaintiff may dismiss his own complaint –

a. By filing a Notice of Dismissal

The plaintiff may file a notice of dismissal at any time before service upon him of the answer or of a motion for summary judgment. The dismissal is without prejudice, unless otherwise stated in the notice itself or if barred by the two dismissal rule. The rules require that, upon such notice being filed, the court shall issue an order confirming the dismissal.

b. By filing a Motion to DismissBut the complaint shall not be dismissed at the instance of the plaintiff without the approval of the court. If a counterclaim has been pleaded by the defendant prior to the service upon him of plaintiff’s motion to dismiss, the dismissal shall be limited to the complaint. Such dismissal is without prejudice, unless otherwise specified by the court.

What is the two-dismissal rule?

It is the rule that provides that a notice of dismissal operates as an adjudication of the case 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.

In what instance may the court dismiss the complaint on its own motion or on motion of the defendant?

a. If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint;

b. If, for no justifiable cause, the plaintiff fails to prosecute his action for an unreasonable length of time;orc. If, for no justifiable cause, the plaintiff fails to comply with the Rules of Court or any order of the court.

In any of these instances, the dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court in the order of dismissal.

REMEDY of the plaintiff if the TC dismisses the complaint on any of the grounds mentioned

The remedy of the plaintiff is to appeal within the reglementary period from the order of dismissal because the order of dismissal is a final order in the sense that it completely disposes of the complaint.

But, if the order of dismissal states that the dismissal is without prejudice, the remedy of the plaintiff is to refile his complaint. He cannot appeal because an order dismissing an action without prejudice is not appealable.

DISMISSAL OF ACTIONS (Rule 17)

By the PLAINTIFF

a.by NOTICE-anytime before service of Answer or Motion for Summary Judgment (Sec.1)

-without prejudice

-with prejudice (because of two dismissal rule or so expressed in the notice or dismissal is premised on the fact of payment).

* Notice of dismissal prevail over defendant’s motion to dismiss

DISMISSAL DUE TO THE PLAINTIFF’S FAULT

a). Plaintiff’s failure to appear during presentation of evidence in chief

b). Failure to prosecute action for unreasonable length of time

c). Failure to comply with the rules

d). Failure to comply with any order of the court

RULE 18 PRE-TRIAL

What is pre-trial?

Pre-trial is the procedural device intended to clarify and limit the basis issues between the parties. Its main objective is to simplify, abbreviate, and expedite the trial or totally dispense with it.

What is the nature of a pre-trial?

Pre-trial is mandatory.

What are the purposes of pre-trial?

At the pre-trial, the court shall consider the following:

a. The possibility of an amicable settlement or of a submission to alternative modes of settling dispute resolution;

b. Simplification of issues;

c. 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;

i. Such matters as may aid in the prompt disposition of the action

When is the case considered ripe for pre-trial?

The case is considered ripe for pre-trial after the last pleading has been served and filed.

After the last pleading has been served and filed, what is the duty of the plaintiff regarding the pre-trial of the case?

Within five (5) days after the last pleading joining the issues has been filed and served, the plaintiff must move ex parte that the case be set for pre-trial conference and if the plaintiff fails to file said motion within the given period, the branch clerk of court shall issue a notice of pre-trial.

P vs. D. D files an answer with a permissive counterclaim. May the case be set for pre-trial already.

No, because the last pleading has not yet been served and filed.

The last pleading in this case is the answer of P to the permissive counterclaim. If P does not file an answer to the permissive counterclaim within the reglementary period, he may be declare in default as to the permissive counterclaim. If, in the problem given, the counterclaim is compulsory, the case may already be set for pre-trial because the compulsory counterclaim requires no answer and is, therefore, the last pleading.

On whom shall notice of pre-trial be served?

The notice of pre-trial shall be served on counsel, or on the party I he has no counsel. The counsel served with such notice is charged with the duty of notifying the party represented by him.

Is personal presence of the parties required at the pre-trial?

Yes. Rule 18, Sec. 4 provides that it shall be the duty of the parties and their counsel to appear at the pre-trial.

The non-appearance of a party at the pre-trial may be excused only in the following instances:

a. If a valid cause is shown therefor; orb. If a representative shall appear in his behalf fully authorized in writing to do the following:

1. To enter into an amicable settlement;2. To submit to alternative modes of dispute resolution; and3. To enter into stipulations or admissions of acts and of documents

What is the effect or consequence of a party’s failure to appear at the pre-trial despite notice?

a. If it is the plaintiff who fails to appear: If, despite due notice, plaintiff fails to appear at the pre-trial, his complaint shall be dismissed. The dismissal shall be with prejudice unless otherwise ordered by the court. His remedy is to appeal from the order of dismissal because the dismissal is the final resolution of the case. But if the dismissal is ordered by the court to be without prejudice, his remedy is to refile his complaint, not appeal.

b. If it is the defendant who fails to appear:

The failure of the defendant to appear despite due notice shall be a cause to allow the plaintiff to present his evidence ex parte and the court to render judgment on the basis thereof.

What must the parties file with the court at least three days before the date of the pre-trial?

The parties must file their respective pre-trial brief with the court, serving the adverse party with a copy thereof at least three days before the pre-trial.

What is the effect of a party’s failure to file his pre-trial brief as required by the rules?

The failure of the party to file his pre-trial brief shall have the same effect as failure to appear at the pre-trial.

Failure of the defendant to file his pre-trial brief shall have the same effect as failure to appear at the pre-trial i.e., the plaintiff may present his evidence ex parte and the court shall render judgment on the basis thereof. The remedy of the defendant is to file a motion for reconsideration showing that his failure to file a pre-trial brief was due to fraud, accident, mistake, or excusable negligence. The motion need not stress the fact that the defendant has a valid and meritorious defense because his answer which contains his defense is already on record.

What is a pre-trial order, and what is its use?

A pre-trial order is issued by the court after the termination of the pre-trial, reciting in detail the matters taken up at the pre-trial conference, the action taken thereon, the amendments allowed to the pleadings, the agreements or admissions made by the parties as to any of the matters considered, and explicitly defining and limiting the issues to be tried.

The contents of the pre-trial order shall control the subsequent course of the action.

The trial shall be limited to the issues stated in the pre-trial order.

Who should initiate and when

While under the present Rules, it is now the duty of the clerk of court to set the case for pre-trial if the plaintiff fails to do so within the prescribed period, this does not relieve the plaintiff of his own duty to prosecute the case diligently. This case had been at the pre-trial stage for more than two years and petitioners have not shown special circumstances or compelling reasons to convince us that the dismissal of their complaint for failure to prosecute was unjustified.

RULE 19 INTERVENTION

Who may intervene in an action?

A person who, with leave of court, may intervene in an action

a. Has a legal interest in the matter of litigation;b. Has a legal interest in the success of either parties;c. Has an interest against both; ord. 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

What are the requisites of intervention?

a. The intervenor has a legal interest in the matter of litigation; has a legal interest in the success of either parties; has 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

b. The intervention will not unduly delay or prejudice the adjudication of the rights of the original parties; and

c. Intervenor’s rights may not be fully protected in a separate proceeding.

How may a person intervene in an action?

By filing a motion for leave to intervene. A copy of the pleading-in-intervention must be already be attached to the motion and served on the original parties.

Intervention is always with leave of court. When may the court refuse to grant leave to intervene?

a. The intervention will not unduly delay or prejudice the adjudication of the rights of the original parties; and

b. Intervenor’s rights may not be fully protected in a separate proceeding.

What are the pleadings in intervention?

a. Complaint-in-intervention if the intervenor asserts a claim against either or all of the original parties;b. Answer-in-intervention if the intervenor unites with the defending party in resisting the claim of the plaintiff

Judgment is already rendered and the case is now on appeal, may intervention be still allowed?

No more, because the time to intervene is at any time before – not after – rendition of judgment by the trial court.

Is intervention allowed in a land registration case?

No, intervention is not allowed in a land registration case. A party wishing to be heard may simply file his opposition to the application for registration.

RULE 21 SUBPOENA

What is a subpoena? What are the kinds of subpoena?

A subpoena is a process directed to a person

a. requiring him to attend and testify at the hearing or the trial of an action, or b. requiring him to attend and testify at any investigation conducted by competent authority, or c. the taking of his deposition;

it is called a subpoena ad testificandum (or simply subpoena) if it requires the person to whom it is directed to attend and testify. If it requires him to bring with him any books, documents, or other things under his control, it is called subpoena duces tecum.

Ground for quashing a subpoena

If what is to be quashed is a subpoena duces tecum, the following are the grounds:

a. the subpoena is unreasonable and 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;d. the witness fees and kilometrage allowed by the rules were not tendered when the subpoena was served;

If what is to be quashed is a subpoena ad testificandum, the following are the grounds:

a. the witness is not bound by the subpoenab. the witness fees and kilometrage allowed by the rules were not tendered when the subpoena was served.

What are the instances when a witness is not bound by a subpoena?

a. The witness resides more than 100 kilometers from his residence to the place where he is to testify by the ordinary course of travel;

b. The witness is a detention prisoner – if no permission of the court in which his case is pending is obtained;c. The witness is a prisoner sentenced to death, reclusion perpetua; or life imprisonment and is confined in a penal

institution – if the authority of the Supreme Court to bring out the prisoner has not been obtained.

May a person present in court be required to testify although he is not served with a subpoena?

Yes. A person present in court may be required to testify although not served with a subpoena, in which event it is as if he were in attendance upon a subpoena issued by the court.

What are the consequences of disobedience to a subpoena?

The following are the consequences:

a. The person who disobeys a subpoena duly served may be arrested and brought before the court where his attendance is required

b. He may also be cited in contempt

What is the viatory right of a witness?

The viatory right is the right of a witness not to be compelled by a subpoena to attend the court hearing in a civil case if he resides more than 100 kilometers from his residence to the place where he is to testify by the ordinary course of the law.

This viatory right is not available to a witness in criminal cases.

RULE 23, 24, 25, 26, 27, 28 and 29 MODES OF DISCOVERY

What are the modes of discovery?

a. Deposition pending action (Rule 23);b. Deposition before action or pending appeal (Rule 24);c. Interrogatories to parties (Rule 25)d. Request for admission by adverse party (Rule 26);e. Production or inspection of documents or things (Rule 27)f. Physical or mental examination of persons (Rule 28)

Purposes of the various modes of discovery

a. As a device, to narrow and clarify the basic issues between the parties; and b. As a device for ascertaining the facts relative to those issues

The evident purpose is to enable the parties, consistent with the recognized privileges, to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent that said trials are carried on in the dark.

Depositions upon written interrogatories vs. Written interrogatories

In Deposition upon written interrogatories, any person, whether party to the case or not, may be compelled to give deposition upon written interrogatories; in Written interrogatories, only the adverse party may be required to answer the written interrogatories served upon him by the other party;

In the former, the deposition upon written interrogatories shall be taken before an officer; in the latter, the adverse party, without appearing before an officer, shall simply answer in writing and under oath the written interrogatories served upon him by the other parties.

Is leave of court necessary so that a party may avail himself of the various modes of discovery?

A deposition pending action may be taken with leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action; or without such leave, after an answer has been served.

How may deposition be taken?

It may be taken on oral examination or upon written interrogatories

Deposition pending action may be conducted by oral examination or written interrogatories, and may be taken at the instance of any party, with or without leave of court. Leave of court is not necessary to take a deposition after an answer to the complaint has been served. It is only when an answer has not yet been filed (but jurisdiction has been obtained over any defendant or over property subject of the action) that prior leave of court is required.

Deposition de bene esse vs. deposition in perpetuam rei memoriam

Deposition de bene esse is taken for purposes of a pending action, while deposition in perpetuam rei in memoriam is taken to perpetuate testimony for purposes of an anticipated action or further proceedings in case of appeal.

May a deposition be use as evidence?

If the deposition is that of a party, the opposing party can use it as evidence like proving his claim (if he is the plaintiff) or his defense (if he is the defendant). It may also be used for impeaching or contradicting the party-deponent if he testifies. The deposition of a party can be used by the opposing party for any purpose.

If the deponent is only a witness but not a party, his deposition cannot be used as evidence. The deposition of a witness who is not a party can be used only for impeaching or contradicting his testimony.

The deposition of a deponent who is not a party but who is available to testify may be opposed and excluded on the ground that it is hearsay.

Depositions may be used without the deponent being called to the witness stand by the proponent. The exceptions are:

a. That the witness is dead;b. 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 depositionc. That the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; ord. That the party offering the deposition has been unable to procure the attendance of the witness by subpoenae. Upon application and notice, that such exceptional circumstances exist to allow the deposition to be used for any purpose

Against whom may a deposition be used?

Any part or all of a deposition may be used against any party

a. Who was present at the taking of the deposition; orb. Who was represented at the taking of the deposition; or who had due notice of taking the deposition

In a case between X and Y, X takes the deposition of W. Is W already the witness of X?

No. A party shall not be deemed to make a person his own witness by taking his deposition. But if X introduces in evidence the deposition of W for any purpose, other than that of contradiction him or impeaching him, then W becomes his witness. If W takes the witness stand as witness for Y, and X uses W’s deposition for the purpose of contradicting W, then W does not become the witness of X.

Before whom may deposition be taken?

a. If within the Philippines, deposition may be taken before any judge; any notary public; or upon written stipulation of the parties, before any person authorized to administer oaths;

b. if in a foreign country, deposition may be taken before a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the Republic of the Philippines, or before such person or officer as may be appointed by commission or under letters rogatory; or upon written stipulation of the parties, before any person authorized to administer oath.

What is a commission? – letters rogatory?

A commission may be defined as an instrument issued by a court of justice, or other competent tribunal, to authorize a person to take depositions, or do any other act by authority of such court or tribunal.

A commission is addressed to officers designated either by name or descriptive title; while letters rogatory are addressed to a judicial authority in a foreign country.

Letters rogatory may be defined as an instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a cause pending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed.

What is the effect of failure to serve: (a) written interrogatories

A party not served with written interrogatories may not be compelled by the adverse party by the adverse party to give testimony in open court or to give deposition pending appeal, unless allowed by the court for good cause shown and to prevent a failure of justice.

What is the effect of failure to serve: (a) written admissions

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, unless otherwise allowed by the court for good cause shown and to prevent failure of justice.

What are the consequences of a party’s refusal to comply with modes of discovery?

a. The pleading of the disobedient party may be ordered stricken out;

b. The action may be dismissed, if the disobedient party is the plaintiff

c. A judgment by default may be rendered, if the disobedient party is the defendant

d. His refusal to be sworn or to answer at or during the taking of his deposition may be considered a contempt of court

e. The arrest of disobedient party may be ordered. But if the order disobeyed is an order to submit to a physical or mental examination, the disobedient party cannot be ordered arrested.

Deposition of witnesses may be taken even if such witnesses will be presented during the trial Deposition outside the country may be refused if the evidence sought would only corroborative or cumulative.

DEPOSITIONS PENDING ACTION

WHEN taken – with leave after jurisdiction acquired over the defendant or property or without leave after service of the answer

Deposition before service of answer (but after jurisdiction is acquired over the defendant or res) requires showing of “unusual” circumstances to justify leave of court.

USE of deposition

To contradict or impeach a witness For any purpose –

o if the deponent is a party or officer of a juridical party

o if the witness is dead, or resides more than 100 kms away or is out of the Philippines (unless procured), or

unable to attend due to age, sickness, infirmity, or imprisonment; or the party offering the deposition is unable to procure a subpoena; or under exceptional circumstances

EFFECT:a) Effect of taking deposition of a witness – does not make him a witness b) Effect of using depositions (other than for impeachment) – except for a party, the deponent becomes a witness of the proponent

RULE 30 TRIAL

What is the order of trial?

First, the plaintiff shall adduce evidence in support of his complaint

Second, the defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third-party complaint.

Third, the third party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim, and fourth-party complaint;

Fourth, the fourth-party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;

Fifth, the parties against whom any counterclaim or cross claim has been pleaded shall adduce evidence in support of their defense, in order to be prescribed by the court;

Sixth, 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;

Seventh, 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.

What are the requisites of motion to postpone trial on the ground of absence of evidence?

There must be an affidavit showing:

a. The materiality or relevancy of such evidence; andb. 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.

What are the requisites of motion to postpone trial on the ground of illness of party or counsel?

It must appear upon affidavit that

a. The presence of such party or counsel at the trial is indispensable; andb. The character of his illness is such as to render his non-attendance excusable

The rule is that the judge of the court in which the action is pending must personally receive the evidence to be adduced by the parties. When may the court delegate the reception of evidence to its clerk of court?

The court may delegate the reception of evidence to its clerk of court (who is a member of the bar) in:

a. Default or ex parte hearings; andb. In any case in which the parties agree in writing

If the clerk of court is not a member of the bar, reception of evidence cannot be delegated to him

May the parties to an action agree upon the facts involved in the litigation and submit the case for judgment on the facts agreed upon without the introduction of evidence?

Yes, but such agreement must be in writing. And if the parties agree only on some of the facts in issue, the trial shall be held as to the disputed facts.

But, the judgment based on stipulation of facts is not allowed in the following case:

a. Legal separationb. Annulment of marriage; andc. Declaration of nullity of marriage

To summarize, in legal separation, annulment of marriage, and declaration of nullity of marriage, there can be no judgment by default, judgment on the pleadings, summary judgment, judgment upon confession, judgment upon compromise, and judgment based on stipulation of facts.

What are the instances in which civil actions may be suspended as provided for in the Civil Code?

a. If willingness to discuss a possible compromise is expressed by one or both parties;b. If it appears that one of the parties, before the commencement of the action or proceeding, offered to discuss a possible

compromise but other party refused to offer.

RULE 31 CONSOLIDATION OR SEVERANCE

What does the rule authorize the court to do if two or more actions pending before it involves a common question of law or fact?

When actions involving a common questions 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.

If the actions involve a common questions of law or fact because they arise from a single cause of action between the same parties, the remedy is not consolidation but dismissal of one of the actions on the ground of litis pendencia.

What is the purpose or object of consolidation of cases?

The purpose or object of consolidation of cases is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear congested dockets, simplify the work of the trial court, and save unnecessary costs or expense; in short, the attainment of justice with the least expense and vexation to the parties litigants.

RULE 33 DEMURRER TO EVIDENCE

Who may move for dismissal of the action on demurrer to evidence? – when? – and on what ground?

Who? – the defendant may move for dismissal of the action on demurrer to evidence.

When? – after the plaintiff has completed the presentation of his evidence.

Ground? – on the ground that upon the facts and the law plaintiff has shown no right to relief

Must leave of court be first obtained before defendant may move to dismiss on demurrer to the evidence?

In civil cases, there is no need to obtain prior leave of court.

If the defendant demurs to plaintiff’s evidence, does the defendant waive his right to present evidence.

No. By filing his motion to dismiss on demurrer to evidence, the defendant does not waive his right to present his evidence in the event of denial thereof. But if the motion is granted, but on appeal the order of dismissal is reversed he shall be deemed to waived the right to present evidence.

Distinguish demurrer to evidence in civil cases and demurrer to evidence in criminal cases

The distinctions are:

a. In both, the ground is insufficiency of evidence

b. In civil cases, the court may dismiss the action for insufficiency of evidence only upon motion of the defendant; in criminal cases, the court may dismiss the case for insufficiency of evidence on the court’s own initiative after giving the prosecution the opportunity to be heard or upon motion filed by the accused.

c. In civil cases, leave of court is not required for the filing of the motion to dismiss on demurrer to evidence. In criminal cases, the accused may file the motion to dismiss on demurrer to evidence with or without leave of court. If he files it with prior leave of court and his motion is denied, he may be adduce evidence for his defense. But if he files it without prior leave of court, he waives the right to present evidence in the event his motion to dismiss is denied. An accused who files a motion to dismiss on demurrer to evidence without prior leave of court submits the case for judgment on the basis of the evidence presented for the prosecution.

d. In civil case, if defendant’s motion on demurrer to evidence is granted by the court, the remedy of the plaintiff is to appeal from the order of dismissal. In criminal cases, if the court dismisses the case on demurrer to evidence, the prosecution cannot appeal from the order of dismissal because such appeal will place the accused in double jeopardy.

After the prosecution has rested its case in a criminal action, the accused files a demurrer to evidence. In resolving the demurrer to evidence, should the trial court likewise decide the civil aspect of the case and determine the civil liability of the accused?

a. The demurrer to evidence is filed without leave of court:

When the demurrer to evidence is field without leave of court, the whole case is submitted for judgment on the basis of the evidence for the prosecution as the accused is deemed to have waived his right to present evidence. In this situation, the court is called upon to decide the case including the civil aspect, unless the offended party has waived the civil action, or has reserved his right to institute it separately, or has instituted the civil action prior to the criminal action

In case of conviction, the trial court should state its judgment the civil liability or damages to be recovered by the offended party from the accused.

In case of acquittal, the accused may still be adjudged civilly liable where:a. The acquittal is bases on reasonable doubt;b. The court declares that the liability of the accused is only civil; or c. The civil liability of the accused does not arise from or is not based upon the crime of which the accused is

acquitted

But if the accused is acquitted and there is a finding in the final judgment in the criminal action that the act or omission from which the civil liability may arise does not exists, then the civil action based on the delict is deemed extinguished.

b. The demurrer to evidence is filed with leave of court:

When the demurrer to evidence is filed with leave of court, and the court denies it because the evidence presented by the prosecution is sufficient, the accused may present evidence regarding both the criminal and civil aspect of the case.

If the court grants the demurrer to evidence because the evidence so far presented by the prosecution is insufficient as proof beyond reasonable doubt, it does not follow that the same evidence is insufficient to establish a preponderance of evidence. Thus, if the court grants the demurrer, proceedings on the civil aspect of the case shall proceed, except if the trial court finds that the act or omission from which the civil liability may arise did not exist.

RULE 34 JUDGMENT ON THE PLEADINGS

What is the remedy of the plaintiff if the defendant’s answer contains general denials of the material averments in his complaint?

Since a general denial amounts to an admission, plaintiff may move for judgment on the pleadings. Judgment on the pleadings is proper where the answer fails to tender an issue, or it otherwise admits the material allegations of the adverse party’s pleading.

Who may move for judgment on the pleadings?

Only the plaintiff (plaintiff of the original complaint, or of the counterclaim, or of the cross-claim, or of the third-party complaint) may move for the judgment on the pleadings.

The defending party cannot move for judgment on the pleadings.

When may the plaintiff move for the judgment on the pleadings?

After the defendant has filed his answer, the plaintiff may move for judgment on the pleadings if defendant’s answer fails to tender an issue, or otherwise admits the material allegations of plaintiff’s complaint.

May the trial court motu proprio render judgment on the pleadings?

No, the trial court may not motu proprio render judgment on the pleadings. The Rules of Court requires that it should be on motion of the plaintiff.

When does an answer fail to tender an issue?

The answer fails to tender and issue if it does not comply with the requirements of specific denial set out in Sec. 8, 10 and 11 of Rule 8.

And it admits the material allegations of the adverse party’s pleadings where it expressly confesses the truthfulness thereof or where it omits to deal with them at all.

RULE 35 SUMMARY JUDGMENTS

What is summary judgment? What is its object?

Summary judgment (aka accelerated judgment) is a device for weeding out sham claims or defenses at an early stage of the litigation, thereby avoiding the expense and loss of time involved in trial.

Its object is to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only a suitor to the burden of trial.

to the burden of trial.

Summary judgment may be allowed where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

Even if the pleading appear, on their face, to raise issues, summary judgment may still ensue as a matter of law if the affidavits, depositions and admissions show that such issues are not genuine.

Two requisites for Summary Proceeding to be proper

a. There must be no genuine issue as to any material factb. The party presenting the motion for summary judgment must be entitled to a judgment as a matter of law.

What is the meaning of genuine issue?

The term “genuine issue” means an issue of fact which calls for the presentation of evidence as distinguished from an issue which is a sham fictitious, contrived or a false claim. The trial court can determine a genuine issue on the basis of the pleadings, admissions, documents, affidavits, or counter affidavits submitted by the parties. Where the facts pleaded appear uncontested or undisputed, then there is no real or genuine issue or questions as to any fact and summary judgment called for.

Where the facts pleaded by the parties are disputed or contested, proceedings for a summary judgment cannot take the place of trial.

If the trial court renders a summary judgment, what is the remedy of the aggrieved part against a summary judgment?

The remedy of the aggrieved party is to appeal from the summary judgment. Appeal is the remedy because a summary judgment is not an interlocutory order. It is a final judgment. The trial court finally disposes of the pending action, leaving nothing more to be done by it with respect to the merits, thus putting an end to the litigation.

May the TC motu proprio render summary judgment in a civil action?

No. the trial court cannot motu proprio decide that summary judgment in an action is in order. The claimant or the defending party, as the case may be, must invoke the rule on summary judgment by filing a motion upon a showing that there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law.

Is an order denying a motion for summary judgment appealable?

No. it is not appealable because an order denying a motion for summary judgment is interlocutory.

RULE 36 JUDGMENT, FINAL ORDERS, AND ENTRY THEREOF - *chillax

What are the requisites of a valid judgment (or final order)?

a. It must be in writing;b. It must be personally and directly prepared by the judge;c. It must state clearly and distinctly the facts and the law on which it is base; d. it must be signed by the judgee. it must be filed with the clerk of court

The filing of the judgment or final order with the clerk of court is what constitutes rendition of judgment.

When is several judgments proper?

A several judgment is proper only when the liability of each party (defendant) is clearly separable and distinct from that of his co parties (co-defendants) such that the claims against each of them could have been the subject of separate suits, and judgment for or against one of them will not necessarily affect each other.

What is required of the Clerk of Court to do upon the finality of the judgment or final order?

The clerk of court shall forthwith enter the judgment or final order in the book of entries of judgment. The date of the finality of the judgment or final order shall be deemed to be the date of its entry.

Nunc pro tunc amendment

Amendment of a final and executory judgment on harmless and typographical error

RULE 37 NEW TRIAL OR RECONSIDERATION

When may a party file a motion for new trial or a motion for reconsideration of a judgment or final order?

A party aggrieved by a judgment or final order may file a motion for new trial or a motion for reconsideration within the period for taking an appeal.

What are the grounds for motion for new trial (civil cases)?

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

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

Gross negligence of counsel amounts to denial of due process

Grounds/requisites for newly discovered evidence

a. The evidence was discovered after the trial;b. Such evidence could not have been discovered and produced at the trial with reasonable diligence;c. Such evidence is material, not merely cumulative, corroborative, or impeaching, and is such weight that, if admitted, would

probably change the judgment.

Grounds for Motion for Reconsideration

a. Award of excessive damagesb. Insufficiency of evidence to justify the decision or final order;c. Decision or final order is contrary to law/facts

What are the effects of granting a motion for new trial?

The effects are:

a. The original judgment or final order shall be vacatedb. The action shall stand for trial de novoc. The recorded evidence taken during 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.

A motion for reconsideration is not required as a condition precedent for an appellate review BUT is required in cases involving custody of minors, declaration of nullity or annulment of marriages.

No second MR by a party against a judgment or final order. No second Motion for New Trial UNLESS the ground was not existing and available during the pendency of the first

motion. Pro-forma motions: when it does not comply with the specific requirements of motion in general and in particular.

Is an order denying a motion for new trial appealable?

No, an order denying a motion for new trial or reconsideration is not appealable. The remedy of the aggrieved party is to appeal from the judgment or final order itself.

RULE 38 RELIEF FROM JUDGMENTS

Upon what grounds may the petitioner file a petition for relief from judgment, final order, or proceeding?

Petitioner may file a petition for relief on the ground that the judgment or final order is entered, or the proceeding is thereafter taken, against him through fraud, accident, mistake, or excusable negligence, praying such judgment, final order or proceeding be set aside.

When may the petitioner file a petition for relief from judgment, final order, or proceeding?

The petitioner may file a petition for relief within sixty days after he learns of the judgment, final order or proceedings, but not more than six months after such judgment or final order was entered or such proceeding was taken. The petition must be verified.

Where should petition for relief be filed?

It should be filed in the same case and in the same court where the judgment or final order complained of is entered or where the proceeding is taken.

A petition for relief form judgment is an equitable remedy that is allowed only in exceptional cases when there is no other available or adequate remedy.

When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this remedy.

A petition for relief from judgment is a remedy available to a party who, through fraud, accident, mistake or excusable negligence, was prevented from taking an appeal from a judgment or final order therein.

The personality to file a petition for relief from judgment, therefore, resides in the person who is a party to the principal case. This legal standing is not lost by the mere transfer of the disputed property pendente lite. The original party does not lose his personality as a real-party in interest merely because of the transfer of interest to another pendent lite.

The petition for relief form judgment is not an available remedy in the Court of Appeals and the Supreme Court. Petition for relief applies only to MTC and RTC.

A petition for relief is only available against final and executor judgment. A verified petition for relief must be filed within sixty (60) days after the petitioner learns of the judgment, final order, other proceeding to be set aside and not more than six (6) months after such judgment or final order has been entered or such proceeding has been taken. It must be accompanied with affidavits showing fraud, accident, mistake or excusable negligence relied upon, the facts constituting petitioners good and substantial cause of action or defense.

A petition for relief from judgment must be filed within:

a. 60 days from knowledge of judgment, order or other proceedings to be set aside; andb. Six (6) months from entry of such judgment, order or proceeding.

These two periods must concur. Both periods are also not extendible and never interrupted.

The 60 day period is reckoned from the time the party acquired knowledge of the order, judgment or proceedings and not from the date he actually read the same.

Where fraud is the ground, the fraud must be extrinsic or collateral. There is extrinsic fraud when a party is prevented from fully presenting his case to the court as when the lawyer connives to defeat or corruptly sells out his client’s interest. extrinsic fraud can be committed by a counsel against a client when the latter is prevented from presenting his case to the court.

Excusable negligence; Negligence of the counsel of counsel to pay the docket fee 9 days after the expiration of the period of appeal is not excusable.

The denial of the motion for reconsideration of an order of dismissal of a complaint is not an interlocutory order, however, but a final order as it puts an end to the particular matter resolved, or settles definitely the matter therein disposed of, and nothing left for the trial court to do other than to execute the order.

RULE 40 TO RULE 56 APPEAL

What is the proper subject of an appeal?

An appeal may be taken from a judgment or final order that completely disposes of the case or of a particular matter therein.

What are the orders or judgment that cannot be appealed from?

No appeal may be taken from the following:

a. An order denying petition for relief or any similar motion seeking relief from judgment (because the remedy against such order is a petition for certiorari or prohibition under Rule 65)

b. An interlocutory order (remedy: petition for certiorari under Rule 65)c. An order disallowing or dismissing an appeal (remedy is certiorari or petition for relief)d. An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake

or duress, or any other ground vitiating consent (remedy: either petition for relief from judgment, action for annulment, or petition for certiorari under Rule 65)

e. An order of execution (remedy: petition for certiorari under Rule 65)f. A judgment or final order for or against one or more several parties or in separate claims, counterclaims, cross-claims,

and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom.g. An order dismissing an action without prejudice (remedy: refile his complaint or petition for certiorari under Rule 65)

What are the modes of appeal?

The following:

a. Ordinary appeal1. By filing a notice of appeal (appeal period – 15 days), or2. By filing a notice of appeal and record on appeal in those instances where record on appeal is required; (appeal

period – 30 days)

b. Petition for review under Rule 42 and Rule 43

c. Petition for review on Certiorari under Rule 45

What should the notice of appeal indicate?

If the appeal is from the judgment or final order rendered by the MTC, the notice of appeal should indicate:

a. The parties to the appealb. The judgment or final order or part thereof appealed fromc. The material dates showing timeliness of the appeal

If the appeal is from the judgment or final order rendered by the RTC, the notice of appeal should indicate:

a. Indicate the parties to the appealb. Specify the judgment or final order or part thereofc. Specify the court to which the appeal is being takend. State the material dates showing the timeliness of the appeal

The adverse party shall be served with the copy of the notice of appeal

In ordinary appeal is the filing for motion for reconsideration or new trial a precondition to the perfection of the appeal?

No. but there are cases where the filing of a motion for reconsideration or new trial is required so that the appeal may be allowed, thus:

a. No appeal from the decision in cases involving custody of minors and writ of habeas corpus in relation to custody of minors shall be allowed, unless the appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment.

b. In annulment of voidable marriages, declaration of absolute nullity of void marriages, and legal separation no appeal from the decision shall be allowed unless appellant has filed a motion for reconsideration or new trial within fifteen days from notice of judgment.

What is the period of perfecting an ordinary appeal?

a. If the appeal is by notice of appeal, the appellant must file a notice of appeal within fifteen (15) days from notice of the judgment or final order appealed from;

b. If the appeal is by notice of appeal and record on appeal, the appellant must file the notice of appeal and record on appeal within thirty (30) days fromt notice of the judgment or final order appealed from.

c. An appeal in habeas corpus cases shall be taken within 48 hours from the notice of the judgment or final order appealed from

A motion for extention of time to file the notice of appeal is not allowed.

Neypes et. al. vs CA et. al. Fresh period Rule

A party litigant may either file his notice of appeal within 15 days from receipt of the RTC’s decision or file it within 15 days from the receipt of the order denying his motion for new trial or motion for reconsideration. The new 15-day period may be availed of only if the motion is filed; otherwise, the decision becomes final and executor after the lapse of the original appeal period.

When is ordinary appeal deemed perfected?

a. A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time

b. A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon approval of the record of appeal filed in due time.

When does a TC lose jurisdiction over the case?

a. In an appeal by notice of appeal, the court loses jurisdiction over the case upon the perfection of the appeal filed in due time and the expiration of the time to appeal of the other parties;

b. In appeal by record on appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the record on appeal filed in due time and the expiration of the time to appeal of the other parties.

Within the period of taking an appeal, the appellant shall pay to the Clerk of Court which rendered the judgment or final or appealed from, the full amount of the appellate court docket and other lawful fees.

Failure to pay the full amount of the appellate court docket fee and other lawful fees is a ground for dismissal of the appeal.

Appellate court may extend the time for the payment of the appellate court docket fees if the appellant can show that there is a justifiable reason for his failure to pay the correct amount of docket fees within the prescribed period, like fraud, accident, mistake, excusable negligence or similar supervening casualty without fault on his part. The dismissal is discretionary.

Summarize the rules on appeal from the judgments of the RTC?

a. Original jurisdiction – in all cases decided by the RTC in the exercise of their original jurisdiction, appeal may be made to:

1. The CA – where the appellant raises question of fact or mixed questions of fact and law, by filing a mere notice of appeal.

2. The SC – where the appellant solely raises questions of law, by filing a petition for review on certiorari under Rule 45.

b. Appellate jurisdiction – all appeals from judgments rendered by the RTC in the exercise of their appellate jurisdiction, whether the appellant raises questions of fact, of law, or mixed questions of fact and law, shall be by filing a petition for review with the Court of Appeals under Rule 42.

After notice of appeal was filed, the court no longer has jurisdiction to entertain a motion for new trial. Once a judgment becomes final, executor and unappealable, the prevailing party should not be denied the fruits of his

victory by some subterfuge devised by the losing party. Equity jurisdiction

In order to serve substantial justice, the court must consider:a. Matters of life, liberty, honor or propertyb. Existence of special or compelling circumstancesc. The merits of the case;d. A cause not entirely attributable to the fault or negligence of the party favored by the suspension of the rules;e. A lack of any showing that the review sought is merely frivolous and dilatory; andf. The other party will not be unjustly prejudiced thereby

In case of reversal, the case shall be remanded to the municipal trial court for further proceedings. The RTC in reversing an appealed case dismissing the action cannot decree the eviction of the defendants and award damages.

Appeal from agencies, boards, tribunals to CAo As a rule, the tribunal whose decision is subject of review should not be impleaded; neither should it intervene.

However, in case of exoneration, it may appeal form such exoneration.o A judge should detach himself from cases where his decision is appealed to a higher court for review. The

reason is that a judge is not an active combatant in such proceeding and must leave the opposing parties to contend their individual positions and the appellate court to decide the issues without his active participation.

RULE 45 APPEAL FROM CA TO SC

An appeal on the dismissal on the ground that the complaint failed to state a cause of action can only raise questions of law. Hence, the appeal to the CA is improper. The proper mode of appeal was not by way of ordinary appeal under Rule 41 but rather by way of a petition for review or certiorari under Rule 45.

Exception to the questions of law requirements:a. When there is misapprehension of facts or failure to notice certain relevant facts; b. When there is conflicting findings of facts of the trial court and the appellate court;

Under Rule 45, the petitioner who files a petition for review on certiorari with the SC may raise questions of law only.

An appeal may be withdrawn as of right at any time before the filing of the appellee’s brief. Thereafter, the withdrawal may be allowed in the discretion of the court.

RULE 47 ANNULMENT OF JUDGMENT

What are the grounds for the annulment of judgment?

a. Extrinsic fraudBut extrinsic fraud shall not be a valid ground for annulment of judgment if it was availed of, or could have been availed of, in a motion for new trial or petition for relief.

b. Lack of jurisdictionA petition for annulment of judgment must be verified, and a certified true copy of the judgment sought to be annulled shall be attached to the original copy of the petition.

When is fraud regarded as extrinsic?

Fraud is regarded as extrinsic or collateral where a litigant commits acts outside of the trial of the case, the effects of which prevents a party from having a trial, a real contest, from presenting all of his case to the court, or where it operates upon matters pertaining no to the judgment itself but to the manner in which it was procured so that there is not a fair submission of the controversy. Fraud is extrinsic if committed outside of the trial.

Extrinsic fraud refers to any fraudulent act of the prevailing party in the litigation which is committed outside of the trial of the case, whereby the defendant party has prevented from exhibiting fully his side of the case by fraud or deception practice on him by his opponent.

A petition for annulment of judgment on the ground of extrinsic fraud mau be filed within four years from the discovery of the same.

Jurisprudence recognizes lack of due process as additional ground to annul a judgment (in this case gross negligence of the counsel)

Petition for annulment of judgment could be resorted to if other remedies under the law (petition for new trial, appeal, or petition for relief) are available or were not availed without sufficient justification.

What is the period for filing of an action for annulment of judgment?

a. Extrinsic fraudThe action must be filed within four (4) years from its discovery

b. Lack of jurisdiction Before it is barred by laches or estoppels

But an action for annulment of judgment can be resorted to only if the remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner.

What are the remedies against final and executory judgment?

a. Petition for relief of the judgment under Rule 38 when the judgment has been taken against the party through fraud, accident, mistake, or excusable negligence.

b. Action for annulment of the judgmentThis is a direct action for annulment on the ground of: 1. extrinsic fraud; or2. lack of jurisdiction over the subject matter or over the person of the defendant

c. a direct action for certiorari under Rule 65; or a collateral attack against the judgment if the judgment is void on its face or void by its own recitals.

PROVISIONAL REMEDIES AND SPECIAL CIVIC ACTIONS

RULE 57 PRELIMINARY ATTACHMENT

In what cases may the plaintiff apply for the issuance of a writ preliminary attachment?

a. In an action for the recovery of a specified amount of money or damages other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict, or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors;

b. In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent, or clerk in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of such duty.

c. In an action to recover the possession of property unjustly or fraudulently taken, detained, or converted when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;

d. In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof;

e. In an action against a party who has removed or disposed of his property, or is about to do so, with the intent to defraud his creditors; or

f. In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.

SECTION 1

Purpose- security for satisfaction of the judgment

When to apply-

At commencement

Or before final entry

Grounds:

1. Action for specified amount of money/damages (other than moral or exemplary) , on a cause of action arising from contract , quasi-contract, delict or quasi-delict against a defendant ABOUT TO DEPART from the Phil with INTENT TO DEFRAUD HIS CREDITORS.

2. Action for money or property embezzled or fraudulently misapplied or converted into his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent , or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity or willful violation of duty;

3. Action to recover possession of property unjustly taken or fraudulently taken, detained, or converted, when the property, or any part thereof, has been CONCEALED, REMOVED, or DISPOSED of to prevent its being found or taken by the applicant or an authorized person;

4. In an action against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the PERFORMANCE thereof;

5. In an action against a party who has REMOVED or DISPOSED of his property, or is ABOUT TO DO SO, with INTENT TO DEFRAUD his creditors; or

6. In action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.

Kinds of Attachment

a. Preliminary attachmentIt is a provisional remedy issued upon order of the court where the action is pending, to be levied upon the property or properties of the defendant therein, the same to be held thereafter by the sheriff as security for the satisfaction of whatever judgment might be rendered in said action in favor of the attaching creditor against the defendant.

b. Garnishment

It is an attachment by means of which the plaintiff seeks to subject to his claim property of the defendant in the hands of a third persons or money owed by such third person to the defendant. Such person is called garnishee.

c. Final attachment (also known as Levy on Execution)It is issued by the court to enforce a judgment that has become final and executor

Requirements:

1. AFFIDAVIT – showing that sufficient cause of action exists; case is one of those mentioned under Sec. 1 of Rule 57; no other sufficient security for the claim sought; amount due the applicant (or value of property sought) is as much as the sum for which the order is granted above all legal counterclaims.

2. BOND (1st bond)-equal to amount of claim or the value of the property conditioned that will pay all damages/costs that the adverse party maysustain by reason of the attachment if the court shall finally adjudge that the applicant was not entitled thereto.

Enforcement:

REQUIREMENTS- to be served on the defendant (scaabow)

a. Prior or contemporaneous service of summons

does not apply where summons could not be served personally or by substituted service despite diligent efforts resident defendant but temporarily out of the Phil. Non resident defendant Action in rem or quasi-in-rem

b. Copy of the complaint, application for attachment, affidavit and bondc. Order and writ of attachment

MANNER-

Real property - any interest standing in the name of the party or in the name of other person

-file with the Register of Deeds copy of the Order , description of the property and Notice that the property (or interest held or standing in the name of other person) is attached.

AND leaving a copy of the Order, Description, and Notice to the occupant, if any or with such person or agent if found in the province.

Personal-

capable of manual delivery- take custody

not capable of manual delivery- leaving a copy of the Writ & Notice –

-President/managing agent, in case of stocks/shares

-person owing such debts or who has control or possession of such credits or other personal property in case of debts and credits, including bank deposits, etc.

-Executor /Administrator or other representative AND to the office of the Clerk of Court where the estate is being settled, in case of interest in estate properties

-In case the property is in custodia legis, a copy of the Writ shall be filed with the proper court or quasi-judicial agency and Notice of the attachment shall be served upon the custodian of such property.

EFFECT OF ATTACHMENT (Sec. 8, 9)

-On debts/credits-shall be liable to the applicant until the attachment is discharged or judgement satisfied UNLESS such property or debts is delivered to the clerk or sheriff or proper officer of the court issuing the attachment.

-On attachment of interest in property belonging to the estate, it shall not impair the powers of executor/administrator/personal representative of the decedent for purposes of administration. The personal representative however shall report to the court when there is order of distribution, and the property attached shall be delivered to the sheriff making the levy.

Attached property may be sold after levy (but before entry of judgment) if perishable or serve interest of all the parties.

DISCHARGE OF ATTACHMENT

1. cash deposit or -counter-bond executed in favor of the applicant equal to the amount fixed in the Order or the value of the property as determined by the Court which shall stand in place of the property released.

2. Before or after levy or even after release of the attached property, the party whose property has been ordered attached, may file a motion to set aside the Order of attachment on the following grounds:a. Improperly or irregularly issued or enforcedb. Bond is insufficientc. Attachment is excessive

The Order of attachment may be lifted if grounds are found not to be true AND the defect is not cured forthwith. NOTE: However, if the grounds of the motion is the same basis of the complaint, the hearing on such motion would be tantamount to trial on the merits of the action

THIRD PARTY CLAIMANT-

File an Affidavit of his claim with the Sheriff while the latter has possession and copy thereof furnished to the applicant

Sheriff not bound to keep the attached property unless applicant files a BOND (2nd applicant’s bond) in sum not less than the value of the property.

Claim damages against the bond (2nd bond) within 120 days.

Vindicate claim in the SAME or SEPARATE ACTION.

NOTE: applicant may also vindicate in the same or separate action claim for damages against any frivolous and plainly spurious third party claim.

RETURN of the SHERIFF

Judgment

any balance unsatisfied may be collected by ordinary execution

after judgment has become final and executory, the surety on the counter bond may proceeded against after notice and summary hearing.

What is garnishment?

Garnishment is a specie of preliminary attachment for reaching credits belonging to a judgment obligor and owing to him from a stranger to the litigation. Since the property involve in garnishment are personal properties, garnishment is thus a levy on personal property.

May a writ of preliminary attachment be issued ex parte?

Yes. Ex parte issuance of writ of preliminary attachment is justified on the ground that the defendant might abscond or dispose of his property before the writ is issued. The trial court may grant a writ of preliminary attachment even before the defendant is summoned or is heard from. however, ex parte issuance of the writ may be made only upon the filing with the court of: a. An affidavit; andb. A bond

But while preliminary attachment may be granted ex parte, it cannot be discharged without hearing.

Remedy of the party whose property was attached. Moved for the discharge of the attachment.

In attachment, what is the “prior or contemporaneous rule”?

Prior or contemporaneous rule is the rule that provides that no levy on attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the applicant’s affidavit and bond, and the order and writ of attachment, on the defendant.

May a property in custodial egis be attached? How?

Yes. A property in custodial egis may be attached by doing all these things:

a. File a copy of the writ of attachment with the proper court or quasi-judicial agency; andb. Serve a notice of the attachment upon the custodian of such property

Grounds for the discharge of attachment

a. That the attachment was improperly issued or enforced;b. The bond was insufficient; andc. That the attachment is excessive

If the attachment is excessive, the discharge shall be limited to the excess.

A party may also move to discharge the attachment by making a cash deposit or filing a counter-bond.

RULE 58 PRELIMINARY INJUNCTION

What are the requisites necessary for the issuance of a writ of preliminary injunction?

a. The existence of a right to be protected andb. The acts against which the injunction is to be directed are violative of said right.

Compliance with the writ of preliminary injunction

a. There must be a hearing on the application for injunctionb. There must be a reception of evidence with opportunity for cross examinationc. There must be a finding that the prohibited acts are threatened to be committed, irreparable injury to the

applicants property will follow, greater injury would be inflicted upon the applicant than upon the defendant, applicant has no adequate remedy at law, and the public officers charged with the duty are willing or unable to furnish adequate protection to applicant

If great or irreparable injury would result to the applicant before the matter can be heard on notice, the court, after summary hearing, may issue a temporary restraining order effective for only twenty (20) days from service on the party enjoined.

If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the court may issue ex parte a 72 hour temporary restraining order.

The application for injunction or restraining order may be denied, upon showing of its insufficiency. The application may be denied outright if the ground of insufficiency is apparent from the application itself.

What is the lifetime of a temporary restraining order?

a. If issued by the MTC or RTC is twenty days from service thereof on the party sought to be enjoinedIf a 72 hour restraining order is issued, the total period of effectivity of the TRO shall not exceed twenty days, including the original seventy two hours.

b. If the TRO is issued by the CA, the TRO shall be effective for sixty (60) days from service on the party sought to be enjoined

c. If issued by the SC, the TRO shall be effective until further orders.

In computing the effectivity of a TRO, Saturdays, Sundays, and Holidays are not excluded, except when the last day of the period falls on such days.

An order discharging a writ of injunction is immediately effective

GR: injunctions are not available to take a property out of the possession and control of one party and place it into the possession of another

XPN:

a. The applicant has clearly established his right to the property in questionb. The defendant is clearly a mere intruderc. Where the action seeks to prevent a purchaser at an auction sale from molesting the debtor’s co owner whose rights have

not been affected by the sale.

WHAT– order granted at any stage of an action or proceeding PRIOR TO JUDGMENT or FINAL ORDER, requiring a court, agency or person to REFRAIN from a particular act/s. It may also require PERFORMANCE of a particular act/s.

Preliminary injunction- It does not apply to consummated acts.

Preliminary MANDATORY injunction-performance of a particular act/s.

Requisites:

1). Clear legal right

2). There is violation and invasion is material and substantial

3). Urgent and permanent necessity to prevent serious damage.

The purpose of which is to re-establish and maintain a PRE-EXISTING continuing relation between the parties, recently and arbitrarily interrupted by the defendant, than to establish a new relation. This is an EXCEPTION to the rule that injunction does not apply to consummated acts.

It cannot be used to take possession out of another.

Preliminary preventive prohibitory injunction; Distinguished from prohibition

Preliminary mandatory injunction; Distinguished from mandamus

GROUNDS:

1. Applicant is ENTITLED TO THE RELIEF demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act/s complained of, or in requiring the performance of act/s, either for a limited period or perpetually.

2. Acts complained of during the litigation would probably WORKINJUSTICE to the applicant.

3. Party/court/person is DOING, THREATENING, or is ATTEMPTING to do, or is procuring or suffering to be done, some act/s probably in violation of the rights of the applicant concerning the subject of the action, and TENDING TO RENDER JUDGMENT INEFFECTUAL.

WHO grants

TRO - MTC or RTC, (both effective for 20 days from service); CA or any member (effective for 60 days from service) or SC or any member (effective until further orders)

LIMITATIONS:

- Cannot be issued to enjoin acts done outside its territorial district

The decisions of a corporation are made by its Board which has its office at the principal office at Quezon City. The Quezon City court has jurisdiction to order the restoration of the connection of electrical power.Dagupan Electric Corp. v. Paňo, 95 SCRA 693 (1980)

The implementation of the questioned act may be enjoined by the court where the implementation is to be made-Decano v. Edu, 99 SCRA 410 (1980)

- Should not issue if it would in effect dispose the main case without trial.

WHEN may it be granted:

upon commencement or anytime before judgment. Thereafter, it may be included in the judgment where the injunction is not stayed by appeal under Sec. 4, Rule 39

PD 1818- prohibits courts from issuing injunctions in cases involving infasfracture projects, against administrative acts in controversies involving facts or the exercise of discretion in technical cases.

Exceptions: questions of law

REQUIREMENTS BEFORE GRANT

a. Verified application b. with Bond- fixed by the court

Hearing and prior notice to adverse party

1. Case raffled only after notice and in the presence of adverse party or person to be enjoined. The notice shall be preceded by, or contemporaneously accompanied by service of summons, copy of the complaint or initiatory pleading, affidavit and bond. (SCAB)

Except if summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom, or a non-resident. (Prior service of summons or raffling may be dispensed with if could not be served despite diligent efforts. Gonzales v. State properties Corp. GR 140765, 1/25/01)

2. Application to be HEARD upon NOTICE-

Unextendible 20-day TRO after summary hearing with notice to the adverse party or person to be enjoined.

72 hour TRO effective upon issuance by the Exec. Judge of a multi-sala court in case of extreme necessity due to grave and irreparable injury, BUT within 24 hrs from filing, the case should be raffled with notice and presence of adverse party. A summary hearing should be conducted within the 72 hours whether to extend the TRO to 20 days.

Within the 20-day period, a full hearing should be conducted as to the propriety of granting the application for writ of preliminary injunction.

Objections to, or for motion of dissolution of, injunction or restraining order:

a. Insufficiencyb. applicant entitled, but he can be compensated while party/person enjoined would suffer irreparable

damage, AND the latter posts a counterbond.

RULE 59 RECEIVERSHIP

A receiver may be appointed by the court where the action is pending, or by the Court of Appeals, or by the Supreme Court, or a member thereof in the instances mentioned in the said action.

In the appointment of a receiver, a hearing is necessary and a bond is required from the applicant.

A receiver is a representative of the court appointing him for the purpose of preserving and conserving the property under receivership and preventing its possible destruction or dissipation, if it goes to the possession of another person.

A receiver acts in fiduciary capacity and with impartiality towards all interested persons.

May be an action itself, just like injunction.

Appointment of receiver.

—in the following cases:

(a) party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it;

(b) In an action by the mortgagee for the foreclosure of a mortgage, that the mortgaged property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;

(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect;

(d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation.

During appeal, the appellate court may allow an application for the appointment of a receiver to be filed in, decided, and subject to control by the court of origin.

GROUNDS for denial of application or discharge of receiver:

COUNTERBOND.

a. If bond of adverse party is found to be insufficient, or the surety fails to justify, the receiver shall be appointed or re-appointed, as the case may be. (6a)

Appointment was obtained without sufficient cause.

receiver’s bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the application shall be denied or the receiver discharged, as the case may be.

General powers of receiver.

a. power to bring and defend, 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; to compound for and compromise the same;

e. to make transfers;

f. to pay outstanding debts;

g. to divide the money and other property that shall remain among the persons legally entitled to receive the same;

h. 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.

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

Sec. 7. Liability for refusal or neglect to deliver property to receiver.

a. punishable by contempt and b. liable to the receiver for the value of the property plus damages

RULE 60 REPLEVIN

Replevin is a provisional remedy available in a suit involving recovery of possession of personal property

But replevin will not lie to seize personal property in custodial legis, such as those seized under a valid search warrant.

Who may apply?

A party praying for the recovery of possession of personal property may apply for the issuance of a writ of replevin, and he may do so at the commencement of the action or at any time before defendant files his answer.

Remedy

The remedy of the defendant is either to object to the sufficiency of plaintiff’s bond or to require the return of the property to the defendant by filing a counter bond. The question involving title to the property should be litigated during the trial of the main case.

In replevin, the applicant must give a bond, executed to the adverse party, in double the value of the property. Value means actual value of the property involved.

A writ of replevin, whether issued by the RTC or MTC, may be served anywhere in the Philippines.

Sec.1- Application.

a party praying for the recovery of possession of personal property - commencement or before answer.

Sec. 2. Affidavit and bond.

— affidavit showing:

(a) applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof;

(b) property is wrongfully detained, alleging the cause of detention;

(c) property has not beendistrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodialegis, or if so seized, that it is exempt from such seizure or custody; and

(d) actual market value of the property.

The applicant must give a bond, executed to the adverse party in DOUBLE the value of the property

Sec. 3. Order.

— Upon filing of affidavit and approval of the bond, the court shall issue an ORDER and the WRIT of replevin, describing the personal property and requiring the sheriff to take it into custody

Sec. 5 & 6- Return & Disposition of property by sheriff.

— If he OBJECTS to the sufficiency of the bond, he cannot immediately require the return of the property (NOTE: objections should be presented to the court)

— but if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing a (REDELIVERY BOND)

— If within (5) days after the property is taken, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant’s bond or approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant.

— If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party.

NOTE: the seizure of a motor vehicle in violation of Forestry laws places it under custodia legis.

Sec. 7. property claimed by third person.

AFFIDAVIT of third party claim - serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant.

o the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the

applicant or his agent, on demand of said sheriff, shall file a bond (counterbond) approved by the court to indemnify the third-party claimant in a sum not less than the value.

CLAIM DAMAGES against the bond within 120 days. VINDICATE CLAIM (in the same or separate case)

APPLICANT-

claim damages against third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action.

Judgment.- delivery, or for its value if delivery cannot be made and damages. Recovery against sureties— same procedure as prescribed in section 20 of Rule 57.

RULE 61 SUPPORT PENDENTE LITE

The application for support pendente lite may be filed by any party at the commencement of the proper action or proceeding, or at any time prior to the judgment or final order.

Adverse party fails or refuses to comply with an order granting support pendente lite, what is the remedy of the prevailing party?

a. File a motion for execution of the order granting support pendente lite; orb. File a motion to cite the adverse party in contempt

In fact the court may issue motu proprio the order of execution against the adverse party.

Although an order granting support pendente lite is interlocutory, it may be enforced by execution. This is the only interlocutory order that may be enforce by execution.

RULE 62 INTERPLEADER

A person against whom conflicting claims are asserted by several claimants over the same subject matter, but who claims no interest whatever therein, may bring an action for interpleader against the several claimants to compel them to interplead and litigate their several claims among themselves.

Section 1. Application.

— At the commencement, or at any time prior to the judgment, a verified application for support pendente lite may be filed by any party stating the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents.

Sec. 2. Comment.

— 5 days (or such period fixed by the court) by verified comment, affidavits and documents.

Sec. 3. Hearing.

— not more than 3 days after comment or after the expiration of the period for its filing.

Sec. 4. Duty of the sheriff.(aabow)

— Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same.

Sec. 4. Order.

— The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support.

Sec. 5. Enforcement of order.

— motuproprio or upon motion, issue an order of execution, without prejudice to his liability for contempt.

Any third person who furnished that support to the applicant may, after due notice and hearing in the same case, obtain a writ of execution.

Support in criminal- Civil liability includes support for the offspring as a consequence of the crime and the civil aspect thereof has not been waived, reserved or instituted prior to its filing.

o The application therefor may be filed successively by the offended party, her parents, grandparents or guardian

and the State in the corresponding criminal case during its pendency, in accordance with the procedure established under this Rule. (n)

Restitution.- in case of adverse decision against the recipient.

RULE 62 - INTERPLEADER

Section 1. When interpleader proper.— 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. 2. Order.— Upon filing, the court shall issue an order requiring conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct in such order that the subject matter be paid or delivered to the court.

Sec. 3. Summons.— Summons with copy of complaint/order shall be served upon the conflicting claimants

Sec. 4. Motion to dismiss.— Within the time for filing an answer, each claimant may file a motion to dismiss on the ground of impropriety of the interpleader action or on other appropriate grounds specified in Rule 16. The period to file the answer shall be tolled and

if the motion is denied, the movant may file his answer within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial.

Sec. 5. Answer and other pleadings.— Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of the summons upon him, serving a copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these Rules. If any claimant fails to plead within the time herein fixed, the court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter.The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and responsive pleadings thereto, as provided by these Rules.

Sec. 6. Determination.— After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted in accordance with the Rules, the court shall proceed to determine their respective rights and adjudicate their several claims. (5a, R63)

Sec. 7. Docket and other lawful fees, costs and litigation expenses as liens.— The docket and other lawful fees paid by the party who filed a complaint under this Rule, as well as the costs and litigation expenses, shall constitute a lien or charge upon the subject matter of the action, unless the court shall order otherwise. (6a, R63)

RULE 62 DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES

Declaratory relief is a special civil action brought in the RTC by a person who is interested under a deed, will, contract, or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other government regulation, before breach or violation thereof, asking the court to determine any question of construction or validity arising, and for a declaration of his rights or duties thereunder.

What actions may be instituted as special civil actions for declaratory relief?

a. An action for reformation of an instrument;b. An action to quiet title to real property or to remove clouds therefromc. An action to consolidate ownership over a real property under Art. 1607 of the Civil Code.

A petition for declaratory relief may be filed by a person who is interested under a deed, a will, a contract or other written instrument, and whose rights are affected by a statute, an executive order, a regulation or an ordinance.

The purpose of the remedy is to interpret or to determine the validity of the written instrument and to seek a judicial declaration of the parties’ rights and obligations thereunder.

Essential requisites:

a. There is justiciable controversyb. The controversy is between persons whose interests are adversec. The party seeking the relief has a legal interest in the controversy’; andd. The issue is ripe for judicial determination

An action for declaratory relief presupposes that there has been no actual breach of the instruments involved or of the rights arising thereunder. But a breach or violation should be impending, imminent, or at least threatened.

A person who is not a party to a contract cannot file a petition for declaratory relief and seek judicial interpretation of such contract.

An issue is ripe for judicial determination when litigation is inevitable, or when administrative remedies have been exhausted.

If during the pendency of the case and before termination thereof, a breach or violation of the statute or instrument takes place, the special civil action for declaratory relief is converted into a ordinary civil action, and the parties shall be allowed to file such pleadings as may be necessary or proper. A third party complaint may now be filed by the defendant.

RULE 63 - DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petition.

— Any person interested under a deed, will, contract or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder.

An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule.

Sec. 2. Parties.

— All persons who have or claim any interest which would be affected by the declaration shall be made parties; and no declaration shall, except as otherwise provided in these Rules, prejudice the rights of persons not parties to the action.

Sec. 3. Notice on Solicitor General.

— In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard

Sec. 4. Local government ordinances.

—corresponding prosecutor or attorney of the local governmental shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard.

Sec. 5. Court action discretionary. (as declaration of rights/validity)

— 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. 6. 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 be converted into an ordinary action, and the parties allowed to file necessary and proper pleadings

RULE 64 - REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT

Section 1. Scope.— review of judgments/final orders/resolutions of COMELEC and COA

Sec. 2. Mode of review.— To SC under under Rule 65, except as hereinafter provided. (n)

Sec. 3. Time to file petition.

— within thirty (30) days from notice of the judgment or final order or resolution. MR, if allowed, shall interrupt the period- but which shall not be less than five (5) days. (NOTE: Fresh period rule does not apply to Rule 64)

Sec. 5. Form and contents of petition.— The petition shall be verified and (18) legible copies. (note: 15 copies as per AM 11-9-4 SC on Efficient-Use-of-Paper Rule)

-commission and private parties as respondents

-state facts with certainty, present clearly the issues involved

-grounds and brief arguments relied upon

-pray for judgment annulling or modifying the questioned judgment/final order/resolution.

Findings of fact of the Commission supported by substantial evidence shall be final and non-reviewable.

-The petition accompanied by a clearly legible duplicate original or certified true copy of the judgment, final order or resolution subject thereof, together with certified true copies of such material portions of the record as are referred to therein and other documents relevant and pertinent thereto. The requisite number of copies of the petition shall contain plain copies of all documents attached to the original copy of said petition.

- specific material dates

- sworn certification against forum shopping (third paragraph of section 3, Rule 46).

- proof of service on the Commission and adverse party

- timely payment of docket and other lawful fees.

failure to comply with any - sufficient ground for dismissal. (n)

Sec. 6. Order to comment.—within ten (10) days from notice thereof if sufficient in form and substance; otherwise, the Court may dismiss the petition outright. The Court may also dismiss it if filed manifestly for delay, or the questions raised are too unsubstantial to warrant further proceedings.

Sec. 7. Comments of respondents.—comments of respondents in (18) legible copies. The original shall be accompanied by certified true copies of such material portions of the record as are referred to therein together with other supporting papers. The other copies of the comments shall contain plain copies of all documents attached to the original and a copy thereof shall be served on the petitioner.

No other pleading may be filed by any party unless required or allowed by the Court. (n)

Sec. 8. Effect of filing.— does not stay the execution of the judgment or final order or resolution, unless SC direct otherwise

Sec. 9. Submission for decision.

— Unless the Court sets the case for oral argument, or requires the parties to submit memoranda, the case shall be deemed submitted for decision upon the filing of the comments on the petition, or of such other pleadings or papers as may be required or allowed, or the expiration of the period to do so.

RULE 65 CERTIORARI, PROHIBITION, AND MANDAMUS

What is certiorari?

Certiorari is a special civil action against a tribunal, board, officer exercising judicial or quasi-judicial function which is alleged in a verified petition filed by an aggrieved party to have acted without jurisdiction or in excess of jurisdiction, and there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of law.

Who may file:

Aggrieved party by the acts or proceedings issued or taken by the tribunal, board, or officer exercising judicial or quasi-judicial functions may file a petition for certiorari.

What documents should accompany a petition for certiorari (as well as prohibition) under Rule 65?

The petition shall be accompanied by:

a. certified true copy of the judgment, order or resolution subject thereofb. copies of all pleadings and documents relevant and pertinent thereto; c. and a sworn certification of non-forum shopping

Appeal by certiorari vs. certiorari

In appeal by certiorari, the petition is based on questions of law which the appellant desires the appellate court to resolve. In certiorari, as an original action, the petition raises issues as to whether the lower court acted without or in excess of jurisdiction or with grave abuse of discretion.

Appeal by certiorari stays the judgment, award, or order appealed from. an original action for certiorari does not stay the challenged proceedings, unless a writ of preliminary injuction or a temporary restraining order shall have been issued.

Appeal by certiorari is filed only with the SC. Original action for certiorari may be filed with the RTC, CA, or SC.

Certiorari is not a remedy for errors of judgment. Errors of judgment are correctible by appeal; errors of jurisdiction are reviewable by certiorari.

The remedies for certiorari and prohibition are available only when there is no appeal or any plain, speedy and adequate remedy in the ordinary court of law.

Mandamus may only be resorted to when “there is no other plain, speedy and adequate remedy in the ordinary course of law”

The rule requires the filing of a motion for reconsideration of the assailed judgment or order before a petition for certiorari under Rule 65 may be filed.

A special civil action of certiorari may be resorted to if there is no appeal, or any plain, speedy, and adequate remedy in the ordinary courts of law. A motion for reconsideration has been held to be a plain, speedy, and adequate remedy in the ordinary course of law.

Instances when certiorari may be resorted to even without first filing a motion for reconsideration:

a. Where the order is patent nullity, as where the court a quo has no jurisdiction;b. Where the questions raised in the certiorari proceeding have been 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 the petitioner or the subject of the action 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, a relief form 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 the lack of due process;h. Where the proceedings were ex parte or in which the petitioner had no opportunity to object; andi. Where the issue raised is one purely of law or where public interest is involved.

What is the remedy of the complainant whose complaint is dismissed by the assistant prosecutor conduction preliminary investigation?

His remedy is to appeal to the Sec. of Justice. If the Sec. of Justice dismisses his appeal, he must file a motion for reconsideration. if his motion for reconsideration is denied by the SOJ, he may not file a petition for certiorari under Rule 65 with the Court of Appeals.

What is prohibition?

Prohibition is a special civil action against a tribunal, corporation, board, officer, or person exercising judicial, quasi-judicial, or ministerial function which is alleged in a verified petition filed by an aggrieved party to be acting or about to act without jurisdiction or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.

Prohibition lies against judicial, quasi-judicial, or ministerial functions, but it does not lie against legislative or quasi-legislative function.

Certiorari vs. Prohibition

The purpose of certiorari is to correct respondent’s acts by annulling the proceedings; the purpose of prohibition is to prevent the commission of the act by stopping the proceedings;

In certiorari, the acts being assailed in the petition have already been done; in prohibition the acts being assailed by the petitioner are about to be done or are being done;

In certiorari, the respondent is performing judicial or quasi-judicial functions; in prohibition, the respondent is performing judicial, quasi-judicial or ministerial functions.

Grave abuse of discretion means capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction

What is mandamus

Mandamus is a special civil action against a tribunal, corporation, board, officer or person which is alleged in a verified petition filed by an aggrieved party to have:

a. Unlawfully neglected the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station; or

b. Unlawfully excluded another from the use and enjoyment of a right or office to which such other is entitled

and there is no other plain, speedy, and adequate remedy in the ordinary course of law.

Two aspects of mandamus

a. The respondent unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station; or

b. The respondent unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled

Mandamus vs. certiorari vs. prohibition

In mandamus, the respondent is performing ministerial functions. In certiorari, the respondent is performing judicial or quasi-judicial functions. In prohibition, the respondent is performing judicial, quasi-judicial, or ministerial functions.

The purpose of mandamus is to compel the respondent to do the act required to be done to protect the rights of the petitioner and to pay damages sustained by the petitioner by reason of the wrongful acts of the respondent. The purpose of certiorari is to correct respondent’s acts by annulling the proceedings. The purpose of prohibition is to prevent the commission of the act by stopping the proceedings.

Mandamus is not available to control discretion. Mandamus can require action only but not specific action where the act sought to be performed involves exercise of discretion.

A ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in prescribed manner, in obedience to the mandate of a legal authority, without regard to the exercise of his own judgment upon propriety or impropriety of the act done.

If the law imposes a duty upon a public officer and gives him the right to decide how or when the duty shall be performed, such duty is discretionary.

The petition for certiorari, prohibition, or mandamus may be filed not later than 60 days from notice of the assailed judgment, order or resolution. But if a motion for reconsideration is timely filed, whether such motion is required or not, the 60 day period shall be counted from notice of the denial of said motion. (fresh period rule)

Certiorari Prohibition. Mandamus

DIRECTED AGAINST tribunal, board or officer exercising judicial or quasi-judicial functions

tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions

Any tribunal, corporation, board, officer or person

GROUNDS has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction

unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office

Common condition there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.

WHERE —Supreme Court, Regional Trial Court, Court of Appeals or in the Sandiganbayan. Court of Appeals only if it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these Rules

(note: in election cases, involving act of MTC or RTC, the petition shall be filed with COMELEC in aid of its appellate jurisdiction.

WHEN 60 days from notice of judgment or order or denial of the MR timely filed.

ATTACHMENT

TO THE PETITION

Certified true copy of the judgment, order or resolution, copies of all relevant and pertinent pleadings and documents, (EXCEPT FOR MANDAMUS) and a sworn certification of non-forum shopping.

RESPONDENTS PRIVATE RESPONDENTS— duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent/s.

PUBLIC RESPONDENTS- are nominal parties only and shall not appear unless otherwise directed.

Sec. 6. Order to comment- within 10 DAYS.

— if sufficient in form and substance, the court shall issue an order requiring the respondent/s to comment within ten (10) days.

Sec. 7. Expediting proceedings; injunctive relief.

— The court may issue orders expediting the proceedings, and it may also grant TRO or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case unless a temporary restraining order or a writ of preliminary injunction has been issued against the public respondent.

Public respondent shall proceed with the principal case within 10 days if no TRO or preliminary injunction is issued, or upon its expiration. Failure to proceed-ground for administrative charge.(see AM No. 07—7-12-SC)

Sec. 8. Proceedings after comment is filed.

—may hear the case or require the parties to submit memoranda.

The court, however, may dismiss the petition if it finds the same to be patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too unsubstantial to require consideration. (AM #07-7-12-SC-court may award in favor of respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rule 139 & 139-B of the Rules of Court.)

Sec. 9. Service and enforcement of order or judgment.

- Service upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned - disobedience shall be punished as contempt. - An execution may issue for any damages or costs awarded

RULE 66 - QUO WARRANTO

An individual may bring an action for quo warranto in his own name. A person claiming to be entitled to a public office or position usurped or unlawfully held or exercise by another may bring an action therefor in his own name.

An action for quo warranto may be brought in the Supreme Court, CA, or in the RTC exercising jurisdiction over the territorial area where the respondent or any of the respondents resides, but when the Solgen commences the action, it may be brought in a RTC in the City of Manila, in the CA, or in the SC.

An action for quo warranto must be filed within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose.

The pendency of the administrative remedies does not suspend the running of the one-year period

Quo warranto vs. Election protest

The ground in quo warranto is the disqualification or ineligibility of the proclaimed candidate; while the proper ground of an election protest is irregularities in the conduct of an election

In quo warranto, if the respondent is found ineligible he would simply be ouster, but the petitioner will not assume the office; while in election protest, the protestant who prevails will assume the contested office provided he had obtained plurality of votes.

Quo warranto – elective office vs. quo warranto – appointing office

In quo warranto involving elective office, what is to be determined is the eligibility of the candidate-elect; in quo warranto involving an appointive office, what is to be determined is the legality of the appointment;

In quo warranto involving an elective office, when the candidate-elect is found to be ineligible, the court cannot declare that the candidate who obtained the second highest number of votes has been elected even if he were eligible; in quo warranto involving appointive office, the court determines who has been legally appointed and shall declare who is entitled to occupy the office.

Quo warranto is never directed to an officer as such, but always against the person – to determine whether he is constitutionally and legally authorized to perform any act in, or exercise any function of, the office to which he lays claim.

GROUNDS Section 1. Action by Government against individuals.

— An action for usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against:

(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise;

(b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or

(c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act.

WHO MAY COMMENCE

Sec. 2. When Solicitor General or public prosecutor must commence action.

— The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof.

Sec. 3. When Solicitor General or public prosecutor may commence action with permission of court.

— The Solicitor General or a public prosecutor may, with the permission of the court, bring such an action at the request and upon the relation of another person; but the officer bringing it may first require an indemnity for the expenses and costs in an amount approved by and to be deposited in the court.

Sec. 4. When hearing had on application for permission to commence action.

— Upon application to commence such action, the court shall direct notice be given to the respondent so that he may be heard; and if granted, the court shall issue an order to that effect, copies of which shall be served on all interested parties, and the petition shall be filed within the period ordered by the court.

Sec. 5. Individual in his own name— A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another.

VENUE where the respondent or any of the respondents resides, but when the Solicitor General commences the action, it may be brought in a Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme Court.

STATUTE OF LIMITATIONS

WITHIN ONE YEAR (1);

ACTION FOR DAMAGES within one (1) year after the entry of the judgment establishing the petitioner’s right to the office in question.

Sec. 6. Parties and contents of petition against usurpation.

Sec. 8. Period for pleadings and proceedings may be REDUCED; action given precedence.

Sec. 9. Judgment where usurpation found.

—respondent ousted and excluded, and that the petitioner or relator, recover his costs.

Sec. 10. Rights of persons adjudged entitled to public office; delivery of books and papers; damages.

— judgment rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondent’s custody or control appertaining to the office to which the judgment relates. If respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt.

— The person entitled to the office may also bring action against the respondent to recover the damages by reason of the usurpation.

RULE 67 – EXPROPRIATION

All properties, whether real or personal (except money), may be expropriated.

The RTC has jurisdiction over an expropriation case because, regardless of the value of the property involved, it is incapable of pecuniary estimation.

The right of eminent domain may be exercised by

a. filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated and

b. join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein.

Court finds that the plaintiff has no right of expropriation, what judgment will it render?

The appellate court shall render a judgment ordering the RTC to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff.

verified complaint, stating the right and purpose of expropriation,

— describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made.

— Sec. 2. Entry of plaintiff

Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, deposits an amount equivalent to the assessed value. After such deposit is made the court, writ of possession shall issue.

Sec. 3. Defenses and objections.

— no objection or defense- he may file a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same.

If a defendant has any objection, he shall serve his answer within the time stated in the summons.

No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading.

A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property

This order appealable, but will not prevent the court from proceeding to determine just compensation

Sec. 4. 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.

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. 5. Ascertainment of compensation.

o 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. (mandatory)

o 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. 6. Proceedings by commissioners.

— commissioners shall take oath. — 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. 7. Report by commissioners and judgment thereupon.

Report to the court and shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations, within sixty (60) days from date the commissioners were notified of their appointment, (or upon such period at the discretion of the court).

Interested parties are given ten (10) days within which to file objections to the findings of the report.

Sec. 9. Uncertain ownership; conflicting claims.

— If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto.

Sec. 10. Rights of plaintiff after judgment and payment.

— Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property

Sec. 11. Entry not delayed by appeal; effect of reversal.

— The right of entry shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff. (even if not claimed in the answer)

JUDGMENT FIXING THE JUST COMPENSATION-

Sec. 8. Action upon commissioners’ report.

—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 judgment in favor of the plaintiff and fixing just compensation.

Jurisprudence

(if imposition in right of way acquisition amounts to deprivation of proprietary rights, it is equivalent to exercise of eminent domain-NPC vs. SANTA LORO VDA. DE CAPIN, GR 175176, 10/17/08, citing NPC vs. Gutierrez, G.R. No. 60077, 18 January 1991, 193 SCRA 1, 6-8

A condemnor should commit to use the property pursuant to the purpose stated in the petition for expropriation, failing which it should file another petition for the new purpose. If not, then it behooves the condemnor to return the said property to its private owner, if the latter so desires. [Vda. de Ouano vs. Republic, 642 SCRA 384(2011)]

If there is taking without expropriation and payment of just compensation, the owner cannot take back the property? No. FORFOM DEV. CORP. vs. PNR, GR 124795, 12/10/08.

“Corollarily, if this particular purpose or intent is not initiated or not at all pursued, and is peremptorily abandoned, then the former owners, if they so desire, may seek the reversion of the property, subject to the return of the amount of just compensation received.” [Mactan-Cebu International Airport Authority vs. Lozada, Sr., 613 SCRA 618(2010)]. (NOTE: This abandons Fery v. Mun. of Cabanatuan, 42 Phil. 28 (1921)

[i]n cases where the government failed to pay just compensation within five (5) years from the finality of the judgment in the expropriation proceedings, the owners concerned shall have the right to recover possession of their property. [Republic vs. Lim, 462 SCRA 265(2005)]

RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE

Debt is secured by mortgage, debtor defaults in the payment of his debt. What are the remedies of the mortgagee?

The mortgagee has the choice of one of two remedies. He may either

a. Foreclose the mortgage either judicially or extrajudiciallyb. File an action to collect the debt

Remedies of the mortgagee if the debtor-mortgagor dies and the debt is still unpaid

a. He may waive the mortgage and claim the entire debt from the estate of the debtor-mortgagor as an ordinary claim;b. He may foreclose the mortgage judicially and prove any deficiency as an ordinary claim;c. He may rely on the mortgage exclusively, foreclosing the same at any time before it is barred by prescription without right

to file a claim for any deficiency;

All persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage (second mortgagee, subsequent purchaser) are merely necessary parties. The action for foreclosure may still proceed even if they are not impleaded. The only effect if they are not joined is that their equity of redemption remains unforeclose.

Notice and hearing of the motion for confirmation of sale are essential to the validity of the order of confirmation. An order of confirmation issued without notice and hearing is void and may be set aside any time.

Equity of redemption vs. Right of redemption

In relation to mortgage, the right of redemption exist in extra-judicial foreclosure; while equity of redemption exist only in judicial foreclosure

In extrajudicial foreclosure, the mortgagor may exercise his right of redemption within one year form the registration of the sale in the Office of the Registry of Deeds; while in judicial foreclosure, the mortgagor may exercise his equity of redemption during the period of not less than 90 days nor more than 120 days from the entry of the judgment of foreclosure or even after foreclosure sale but before the judicial confirmation of the sale.

******************************************************************************************

Stating the date and due execution of the mortgage; its assignments, if any; the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; a statement of the date of the note or other documentary evidence of the

obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage.

(NOTE: Parties holding subordinate lien are necessary parties, if not joined, their equity of redemption would remain un-foreclosed. mortgagor and the debtor, who is not the mortgagor, are indispensable parties. While parties holding recorded prior liens are neither necessary nor indispensable- they are not affected by the proceedings for they can always enforce their prior lien)

Sec. 2. Judgment on foreclosure for payment or sale.

—order payment to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment. NOTE: This judgment is appealable.

FORECLOSURE SALE - -upon motion in case of failure to pay.

NOTE: lack of notice will not vitiate the sale

Sec. 4. Disposition of proceeds of sale. to the person foreclosing the mortgage, and any balance, shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or there be a balance, to the mortgagor.

ORDER OF CONFIRMATION

Shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. NOTE: Notice & Hearing is essential.

NOTE:

1. Before finality of the order of confirmation, equity of redemption may be exercised by the mortgagor, or any party claiming subordinate lien. There is no right of redemption in judicial foreclosure of mortgage, except as provided under Sec. 47 of the General Banking Law of 2000 (RA 8791) which grants right of redemption as follows:

a. individuals - one year

b. juridical – before registration of the sale or three (3) months from foreclosure, whichever is earlier.

2. The Order of Confirmation is a final order subject to appeal.

3. Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser or last redemptioner shall be entitled to possession unless a third party is actually holding the same adversely to the judgment obligor.

Sec. 6. DEFICIENCY JUDGMENT.

—upon motion, shall render judgment against the defendant for any such balance he may be personally liable to the plaintiff, upon which execution may issue immediately

No deficiency judgment against:

a mortgagor who mortgaged his property merely to secure a debt of another. Or

In an action for foreclosure against a non-resident defendant who did not appear in the case

RULE 69 PARTITION

What is the purpose of partition?

The purpose of partition is to separate, divide, and assign a thing held in common among those to whom it may belong

The person filing the complaint for partition must join all other co-owners as defendants because all of them are indispensable parties.

An action for partition, as long as the co-ownership still exist, will lie at any time and does not prescribe.

What may be subject of partition?

-both real and personal property-parties-person having the right to compel partition & all other persons interested in the property.

COMPLAINT

ORDER of Partition

Sec. 2. Order for partition, and partition by agreement thereunder.

— If plaintiff has the right thereto, it shall order the partition. Thereupon parties may make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition

A final order decreeing partition may be appealed

Commissioners to make partition when parties fail to agree.

— appoint not more than three (3) competent and disinterested commissioners to make the partition.

1. Commissioners to view and examine, hear the parties as to their preference and the comparative value, and shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable to the parties.

2. Assign the real estate to one of the parties3. Sell real estate at public sale, if the parties could not agree.

— REPORT and within ten (10) days from service, parties may file objections

JUDGMENT

Action upon the commissioners’ report. (Any judgment may be the subject of appeal)

—accept the report and render judgment;-or, 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

Sec. 8. Accounting for rent and profits in action for partition.

— Party shall recover share of rents and profits- judgment in accounting is appealable.

Costs and expenses may be apportioned among the parties; execution may issue

Neither paramount rights nor amicable partition affected by this Rule.

RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER

What are the two kinds of ejectment suit?

a. action for forcible entry;b. actions for unlawful detainer;

An accion interdictal if for the recovery of possession de facto (physical, actual, or material possession) “ejectment suit”

An accion publiciana is a plenary action to recover right of possession. “possessory action”

An accion reinvindicatoria is the action to recover ownership, including possession. “reinvindicatory action”

Who may bring an action for forcible entry?

A person who is deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, may at any time within one year after such unlawful deprivation, bring an action for forcible entry in the proper MTC against the person or persons who unlawfully deprived him of possession or any person claiming under them, for restitution of possession.

Who may bring an action:

A vendor, lessor, 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 or a contract, such lessor or vendor may at any time within one year after such withholding of possession, bring an action for unlawful detainer in the proper MTC.

Main issue: who is entitle to the physical or material or actual possession of the premises, that is possession de facto and not possession de jure.

Ownership is not an issue in ejectment case. When the defendant raised the defense of ownership in his answer and the question of possession cannot be resolved without deciding the issue of ownership, the court shall resolve the issue of ownership only to determine the issue of possession.

The mere assertion of ownership by the defendant in an ejectment suit will not oust the MTC of its jurisdiction.

Forcible entry vs. Unlawful detainer

In forcible entry, the possession of the land by the defendant is unlawful from the beginning as he acquires possession thereof by force, intimidation, strategy, threat, or stealth; while in unlawful detainer, the possession of the defendant is inceptively lawful but it becomes illegal by reason of the termination of his right to the possession of the property under his contract with the plaintiff

In forcible entry, it does not require previous demand for the defendant to vacate the premises; but in unlawful detainer, the plaintiff must first make such demand to vacate, except if the ground is the expiration of the lease.

In forcible entry, the plaintiff must prove prior physical possession of the premises until he was deprived thereof by the defendant; in unlawful detainer, the plaintiff need not have been in prior physical possession

In forcible entry, the one year period is generally counted from the date of actual entry on the land; in unlawful detainer, it is counted from the date of last demand.

If defendant’s entry and possession of the premises of the plaintiff is at the latter’s tolerance, although there is no contract between them, then the plaintiff’s action should be for unlawful detainer to be filed within one year from the date of the demand. Here, the defendant’s possession is lawful because of plaintiff’s tolerance. The defendant may be deemed to be unlawfully withholding possession of the premises only if plaintiff makes a demand upon him to vacate.

A person who occupies the land of another at the latter’s tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon demand.

Previous demand to vacate

In unlawful detainer cases, previous demand to vacate is required to be made by the lessor upon the lessee if the ground for the action is failure to pay rent or comply with the conditions of the lease.

Such demand shall be in writing and served upon the persons found on the premises or posted on the premises if no person is found thereon.

If several demands were made, the one year period for bringing the action for unlawful detainer is reckoned from the date the last demand was made.

But such demand to vacate is not required where the action is to terminate the lease because of the termination of its lease.

If the complaint was filed after one year from the date of demand, the complaint cannot be anymore instituted as unlawful detainer. It must already be filed with the RTC as an accion publiciana to determine the issue of better right of possession of a real property.

In unlawful detainer, the lessor may make several demands to vacate upon the lessee, in which case the one-year period to file the complaint for unlawful detainer may be reckoned from the last demand

In forcible entry, the complaint must be filed with the MTC within one year from the date of defendants actual entry on the land. If filed beyond one year, the action must be filed with the RTC as accion publiciana.

Prior physical possession is not a condition sine qua non in unlawful detainer

Action for forcible entry:

The plaintiff must allege:

a. the plain must allege in his complaint prior physical possession of the propertyb. he must also alleged that he was deprived of his possession by any of the following means: force, intimidation, threats,

strategy or stealth.

In an action for unlawful detainer, the possession of the defendant is originally lawful but becomes unlawful by reason of the termination of his right of possession under his contract with the plaintiff.

The complaint for unlawful detainer is sufficient if it alleges that the withholding of possession by the defendant or his refusal to vacate is unlawful.

In an ejectment case, execution shall issue immediately upon motion of the plaintiff.

In an ejectment case, the judgment, if against the defendant, is subject to immediate execution.

In order to stay execution of the judgment, the defendant must do the following:

a. he must perfect his appeal;b. he must file a supersedeas bond; andc. he must periodically deposit the monthly rental or the reasonable value for the use and occupation of the premises falling

due during the pendency of the appeal.

In an ejectment suit, where the defendant appealed but did not file a supersedeas bond or did not make any monthly deposit of the rentals, the plaintiff is entitled as a matter of right to the immediate execution of the judgment of the MTC. In such case, the duty of the court to order immediate execution is ministerial and imperative.

The filing of supersedeas bond or the periodic deposit of monthly rental will not stay the execution of the judgment of the MTC if the defendant did not appeal.

Supersedeas bond is equivalent to the amount of rents, damages and cost stated in the judgment of the MTC.

Judgment of the RTC in an appealed ejectment case is immediately executor even while pending appeal at the CA and cannot be stayed by the defendant by filing supersedeas bon and making the periodic deposit

The RTC shall issue the writ of execution upon motion of the plaintiff. If the RTC refuses to issue the writ of execution pending appeal, plaintiff’s remedy is mandamus because, in this case, the issuance of the writ of execution pending appeal is a clear duty of the RTC judge under the law.

Provisional remedies available in forcible entry and unlawful detainer case

a. preliminary prohibitory injunction, to prevent the defendant from committing further acts of dispossession against the plaintiff

b. Preliminary mandatory injunction – to restore the plaintiff in his possession. Plaintiff must file a motion within five days from the filing of the complaint

c. Preliminary mandatory injunction – to restore the plaintiff in his possession if the MTC has already rendered a judgment, and the judgment is appealed to the RTC.

The RTC will issue the writ of preliminary mandatory injunction if said court is satisfied that1. Defendant’s appeal is frivolous and dilatory2. Plaintiff’s appeal is prima facie meritorious

RULE 71 CONTEMPT

What is the remedy of a person adjudged in contempt?

a. If he is adjudged in direct contempt – certiorari or prohibition. The execution of the judgment shall be suspended provided he files a bond.

b. If he is adjudged in indirect contempt – remedy is appeal from the judgment or final order. The execution of the judgment may also be suspended provided he files a bond.

Prohibition

Prohibition or a “writ of prohibition” is that process by which a superior court prevents inferior courts, tribunals, officers, or persons from usurping or exercising a jurisdiction with which they have not been vested by law. The mayor, although performing executive functions, also exercises quasi-judicial function which may be corrected by prohibition. In determining whether or not a structure is illegal or it should be demolished, property rights are involved thereby needing notice and opportunity to be heard as provided in the constitutional guaranteed right of due process. In pursuit of these functions, the city mayor exercises quasi-judicial powers. The mayor acted in excess of his jurisdiction.

Injunction

In an injunction, prior service of summons or raffling may be dispense with if could not be served despite diligent efforts.

Motion for reconsideration

Although the 60 day period will be counted from a receipt of denial of the first motion for reconsideration, and not from the denial of the second or third motion for reconsideration.

Interlocutory orders are orders issued by the court which leave something to be done by the court before the case is finally decided on the merits.

RULE 63 DECLARATORY RELIEF AND OTHER SIMILAR REMEDIES

To determine which court has jurisdiction over the actions identified in Rule 63 of the Rules of Court, said provision must be read together with those of the Judiciary Reorganization Act of 1980, as amended. MTC exercises exclusive original jurisdiction over all civil actions which involve title to or possession of real property where the assessed value does not exceed P20,000.

RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER

In forcible entry and unlawful detainer cases, a simple allegations that the defendant is unlawfully withholding possession from the plaintiff is sufficient. Although the phrase “unlawfully withholding” was not actually used by petitioner in her complaint, the allegations therein nonetheless amount to an unlawful withholding of the subject property by private respondents because they continuously refused to vacate the premises ever after petitioner’s counsel had already sent them notices to the effect.

RULE ON SUMMARY PROCEDURE

Counter-affidavit may constitute an ANSWER to the unlawful detainer complaint

Prior possession must be alleged in a forcible entry case. In an action for forcible entry, two allegations are mandatory for the municipal court to acquire jurisdictiona. The plaintiff must allege his prior physical possession of the propertyb. The plaintiff was deprived of his possession through fraud, intimidation, threats, strategy, and stealth. The action

must be filed against the intruder within one year from illegal entry.

In an action for unlawful detainer, which must be filed within one year from the date of the last demand, one unlawfully withholds possession of any land or building after the expiration or termination of his right to hold possession under any contract, express or implied. The possession by the defendant is originally lawful but becomes illegal by reason of the termination of his right of possession under his contract with the plaintiff. It is settled that a

complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law.

In an action for unlawful detainer, it is settled that one whose stay is merely tolerated becomes deforciant illegally occupying the land the moment he is required to leave. It is essential in unlawful detainer cases of this kind, that the plaintiff’s supposed acts of tolerance must have been present right from the start of the possession which is later sought to be recovered. Defendants entry into the land was effected clandestinely, without the knowledge of the owners. It is categorized as possession by stealth which is forcible entry. Tolerance must be present right from the start of the possession sought to be recovered to categorize a cause of action as one of unlawful detainer not forcible entry

A certiorari proceedings, although not allowed under the Rules on Summary Procedure, may be resorted if there is a procedural void created by an unlawful order of the trial court. In situations wherein a summary proceeding is suspended indefinitely, a petition for certiorari alleging grave abuse of discretion may be allowed.

A motion for reconsideration is a prohibited pleading under the Revised Rules on Summary Procedure. However, this rule applies only where the judgment sought to be reconsidered is one rendered on the merits after the trial. The order of dismissal issued by respondent judge due to failure of the party to appear during the preliminary conference is obviously not a judgment on the merits after trial of the case.

A motion for reconsideration for failure of the plaintiff to appear during the preliminary conference is not prohibited. What is prohibited is a motion for reconsideration after trial; or a motion for reconsideration of an order of dismissal for lack of jurisdiction.

The decision dismissing the petitioner’s ejectment case for lack of jurisdiction was not an adjudication on the merits. Therefore, a motion for reconsideration of an order of dismissal for lack of jurisdiction is allowed under the Rules on Summary Procedure.

There could be no preliminary hearing on the affirmative defense contained in an ANSWER under the Rules on Summary Procedure. Under the Rules on Summary Procedure the adjudication of cases can be done on the basis of affidavits and position papers. The court is no longer allowed to hold a hearing to receive testimonial evidence.

A motion for extension of time to file an answer under the Rules on Summary procedure is dilatory in nature.

A position paper filed late may not be admitted. The purpose of the RSP is to achieve an expeditious and inexpensive determination of the cases the cover, among them, forcible entry and unlawful detainer. It prohibits motions and pleadings that could cause delay.

As a rule, an ejectment suit is not abated by a quieting of title filed with the RTC.Exception:

Ownership as a defense, not a case of. In an ejectment case, the RTC, except in execution pending appeal, has to remand to the court of origin for execution of

the judgment and cannot issue the writ of execution itself. An ejectment case may be initiated to recover an encroachment.

RULE 39 ENFORCEMENT OF JUDGMENT

EXECUTION, SATISFACTION EFFECTS

Kinds of Execution

1. Execution upon final judgment/ final order – execution as ma matter of right/ compulsory execution

Before trial – only final judgment, except interlocutory order of supportEven if appeal is available to the party

a. Judgment against the defendant under Rule 70 – forcible entry and unlawful detainerb. Judgment not stayed by appeal:

1. Injunctions2. Receivership3. Accounting4. Support

2. Discretionary execution

A. Pending appeal (trial court or appellate court)

By motion with notice to the adverse party while trial court has still jurisdiction (appellate court if jurisdiction is lost), while trial court has possession of the records or record on appeal, upon good reasons to be stated in a special order.

Requisites for the grant of an execution of a judgment pending appeala. There must be a motion by the prevailing party with notice to the adverse party b. There must be a good reason for execution pending appeal; and c. The good reason must be stated in the special order

Good reasons for execution1. Appeal was for delay (appellate court determines the frivolity of the appeal)2. Support is urgent; 3. Insolvency of the judgment debtor

But;

a. Posting a bond is not a good reason to justify execution pending appealb. Only on actual and compensatory damages, but not on award of moral and exemplary damages

Discretionary execution is permissible only when good reasons exist for immediately executing the judgment before finality or pending appeal or even before expiration of the period to appeal.

Good reason imports a superior circumstance that will outweigh injury or damage to the adverse party.

A corporation which obtained a favorable judgment cannot move for the execution pending appeal on the ground of impending bankruptcy unlike individuals. Corporation has other alternative remedies like loans, advances, internal cash generation and the like to address its precarious financial condition.

Court of Appeals cannot order execution pending appeal of its own decision because it is not provided in the rules. A judgment of the Court of Appeals cannot be executed pending appeal. Once final and executor, the judgment must be remanded to the lower court, where a motion for its execution may be filed only after its entry.

B. Several, separate and partial judgment – if appeal is allowed, execution may issue in proper cases.

Stay of discretionary execution – sufficient supersedeas bond; or a resort to certiorari under Rule 65.

Effect of reversal of executed judgment – restitution or reparation

BUT: Since there is no right to redeem personal property, the rights of ownership are vested to the purchaser at the foreclosure (or execution) sale and are not entangled in any suspensive condition that is implicit in a redemptive period.

MODES OF ENFORCING EXECUTION OF A JUDGMENT

a. By motion – within 5 years from entryb. By independent action – after 5 years from entry, but before judgment is barred by prescription

An action for revival of judgment may be filed either “in the same court where said judgment was rendered or in the place where the plaintiff or defendant resides, or in any other place designated by the statutes which treat of the venue of the actions in general.

Suspension of the five or ten year periods- Period is suspended by agreement of the parties

- Institutions of proceedings supplementary to execution

- The delay was caused by debtors initiative The levy was validly made within the 5 year period, the sale may be made even after, but should not be within the ten

year period. Judgment for support does no prescribe or become dormant, and may be executed by motion, except as to accrued

support (installments) which may prescribe. Does not apply to special proceedings like land registration cases or the right to ask for writ of possession Venue – personal action, but if real property is involved, the action should be brought at the situs of the property. A judgment is not confined to what appears upon the face of the decision, but also those necessarily included therein or

necessary thereto. Thus, in a land registration case wherein the ownership was adjudged, we allowed the issuance of a writ of demolition (to remove improvements existing on the land) for being necessarily included in the judgment. The delivery of possession of the land should be considered included in the decision.

EXECUTION IN CASE OF DEATH OF PARTY

1. Death of judgment obligee, upon application of executor/administrator or successor in interest2. Death of judgment obligor – if the judgment is for recovery of real/personal property or enforcement of lien thereon,

execution may be enforce against his executor or administrator or successor in interest

a. Death of judgment obligor – AFTER ACTUAL LEVY upon any of his property, the same may be sold for the satisfaction of the judgment obligation (NOTE: If death comes BEFORE LEVY, the judgment is submitted as money claim in the estate)

ISSUANCE, FORM AND CONTENTS OF A WRIT OF EXECUTION

1. Writ is issued by the Clerk of Court in the name of the court2. Form and contents of the writ Judgment is not confined to what appears on the face of the decision, but extends as well to those necessarily included

therein or necessary thereto

HOW ENFORCE:

a. Judgment for money

1. Immediate payment upon demand

o Cash certified bank check payable to judgment oblige(not sheriff) or any other form acceptable to him

o Deliver directly to the judgment oblige or his representative if present; if NOT to the Clerk of Court within

the same day

o “a sheriff is not required to give the judgment debtor some time to raise cash if time be given, the property

may be placed in danger of being lost or absconded”.

o The sheriff is required to first demand of the judgment obligor the immediate payment of the full amount

stated in the writ of execution before a levy can be made. The sheriff shall demand such payment either in cash, certified bank check or any other mode of payment acceptable to the judgment obligee.

o If the judgment obligor cannot pay these methods immediately or at once, he can exercise his option to

choose which of his properties can be levied upon.

2. Satisfaction by levy

o Judgment obligor has option to choose what to be levied upon

o In case the option is not exercised, sheriff to levy personal properties first then real properties.

3. Garnishment of debts & credits (not capable of manual delivery) in possession and control of third parties

Steps:a. Notice

b. Garnishee submits a report within 5 days stating sufficient credits with him. If not sufficient, state the amount in his possession.

c. Notice to deliver to the judgment oblige – within 10 days from such notice. If two or more garnishee holding sufficient credits, the choice belongs to the obligor if present, if not, the obligee.

b. Judgment for specific acts

a. Conveyance. Delivery of deeds, or other specific acts; vesting title

o Act may be done by another party directed by the court if the party disobeys the judgment

o Conveyance of property, in lieu of deed, may be ordered by the court divesting title from one and confer it

to the party entitled.

o CONTEMPT is not the remedy

b. Sale of real property

c. Delivery or restitution of real property

o Demand to vacate within 3 working days

o Place the judgment oblige in possession

d. Removal of improvements on property subject of executiono Shall demolish, destroy, or remove only by SPECIAL ORDER issued upon motion, due hearing and after

reasonable period is given to the party affected.

o Demolition may be effected beyond the 5 year period as long as the notice was served with the 5 year

period.

e. Delivery of personal property

Execution of Special judgments

- Writ of execution with the certified copy of the decision

- Failure to obey the judgment is punishable by contempt

Garnishment cannot be used to enforce special judgment. Garnishment is proper only when the judgment to be enforced is one for payment of a sum of money

PROPERTIES EXEMPT from EXECUTION

- Family home/ homestead

- Ordinary tools in trade, employment, livelihood

- Three horses, cows, carabaos or beast of burden judgment obligor may select necessarily use in ordinary occupation

- Necessary clothing, articles, for ordinary personal use

- Household furniture (not exceeding 100k)

- Family or individual provisions for 4 months

NOTICE OF SALE ON EXECUTION

o Posting ( 3 conspicuous public places, preferably, Municipal/city hall, public market, post office

Personal

+ perishable goods – reasonable time

+ others – at least 5 days

Real property (20 days posting)

+ publication ( if the assessed value of real property exceeds P50K); once a week for two consecutive weeks

o With written notice to the judgment debtor

o The requirements of posting and/or publication are essential to the validity of the sale

PROCEEDINGS – PROPERTY IS CLAIMED BY THIRD PERSONS

1. REMEDIES OF A THIRD PARTY (cumulative)o Affidavit of a third party claimant, setting forth the basis of his claim. The sheriff is not bound to keep the

property unless the judgment oblige posts a bond equal the value of the property.

a. If the bond is posted, the sheriff shall not be liableb. The husband is a proper third party claimant over a conjugal property levied upon in a case

against the wife

o Proceed against the bond within 120 days from filing

o Separate action (note: appeal or certiorari cannot be resorted since third party claimant is stranger to the

case; intervention is allowed only before judgment)

Prior filing of terceria or third party claim not necessary in filing a separate action

2. REMEDIES OF THE JUDGMENT OBLIGEEo Post a bond

o Sue the third party in the same or separate action a frivolous or plainly spurious third party claim.

SALE

How the property is sold? Public auction. Who directs the manner and order of sale? Judgment obligor

Refusal of the purchaser to pay (sec.20)

Judgment obligee as purchaser (sec.21)

Adjournment of sale (sec.22)

Conveyance of personal property and real property (sec. 23, 24, 25)

The certificate of sale of real property is merely a memorial of the fact of sale and does not confer ownership. It is the final deed of sale executed after the lapse of the redemption period which is effective conveyance of the property.

The remedy against an irregular sale is a motion to vacate the sale in the same court and in the same case.

REDEMPTION (no redemption in judicial sales of personal property)

Right of redemption may be conveyed/sold, but cannot be attached by the judgment creditor so as to deprive the debtor further right over the property.

Who may redeem

- Judgment obligor or successor in interest

- Creditor having a lien by virtue of an attachment, judgment or mortgage, subsequent to the lien under which the property was sold ( redemptioner )

Redemption period is one year from registration of the sale; if the parties agree on different period, the legal redemption period is converted into conventional redemption.

In case of redemption by the judgment obligor, no further redemption is allowed.

Proof required of the redemptioner (a copy of the judgment or final order under which he claims the right to redeem; memorandum of the record if he redeems upon mortgage)

Income of the property pending redemption belongs to the judgment obligor

Upon expiration of redemption (60 days after last redemption of a redemptioner or one year from registration of the sale in case of the judgment obligor), conveyance and possession is given to the redemptioner or purchaser. Possession shall be given unless a third party is holding the property adversely to the judgment obligor. The rights over the property retroacts to the date of levy.

A purchaser mortgagor cannot be considered holding the property adversely against the mortgagor.

SUPPLEMENTAL PROCEEDINGS TO EXECUTION

A. Examination of judgment obligoro Must be within the city or province where the obligor resides

B. Examination of the obligor of the judgment obligoro Must be within the city or province where the obligor resides

C. Order of application of property and income to satisfaction of judgment. Order payment in installments and failure may be punished for indirect contempt (Sec. 40)

D. Appointment of receiver over property of judgment obligor; orForbid a transfer or disposition of, or any interference with, the property of the judgment obligor not exempt from execution (Sec. 41)

E. Sale of ascertainable interest of judgment obligor in real estate (Sec. 42)

F. Proceedings when indebtedness is denied or another person claims the property (Sec. 43)

a. -authorize creditor to institute action and forbid the transfer of the property 120 days from noticeb. -if the indebtedness is NOT denied or no person claims the property, then the remedy is EXECUTION.

SATISFACTION OF JUDGMENT

1) Upon return of execution satisfied

2) Filing of admission under Sec. 44 – Entry of satisfaction

3) Upon indorsement of such admission on the face of the record of the judgment

4) Upon order of the court after notice and motion

When principal bound by judgment against surety

a. principal bound by judgment from time he had notice b. if both are sued, the surety may file a cross claim in the same case c. if principal sued only, he has no cause of action against the surety

EFFECTS OF JUDGMENT

1). Rendered by Phil. Court with jurisdiction

1) IN REM – Conclusive

-vs. specific thing,

-probate, administration of estate

-in respect to the personal, political or legal condition or status, the judgment is conclusive upon the title to the thing; the will or administration; or condition, status;

* BUT only prima facie evidence of the death of the testator or intestate-

OTHER CASES: (res judicata; inpersonam)

-final judgment or order shall be conclusive between the parties and their successor in interest by title subsequent to the commencement of the action with respect to-

-matters directly adjudged

-or matter that could have been raised in relation thereto

In any other litigation between the same parties or successor in interest, that only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually an necessarily included therein or necessary thereto. (conclusiveness of judgment; in personam, there may be identity of subject matter, but not cause of action)

Petition to reconstitute a title declared to be void by final judgment- an example of operation of conclusiveness of judgment

The principle of res judicata applies when the opportunity to raise an issue in the first complaint exists but the plaintiff failed to do so.

Requisites of res judicata

1. Final and executory judgment or order

2. Jurisdiction over the subject matter and/or parties

3. Former judgment is on the merits

4. Identity of-

-parties,

-subject matter

-cause of action

Law of the case-This principle is defined as "a term applied to an established rule that when an appellate court passes on a question and remands the cause to the lower court for further proceedings, the question there settled becomes the law of the case upon subsequent appeal."

FOREIGN JUDGMENT

o Cannot be enforced by execution

o Merely creates a right of action

o Judgment may be repelled by want of jurisdiction, notice, collusion, fraud or clear mistake of law or fact.

o Effect- in case of judgment against a thing, it is conclusive against the thing; in case of personal judgment, it is

only presumptive evidence of a right between the parties.

RULE 39 EXECUTION, SATISFACTION, AND EFFECTS OF JUDGMENT

What are the two kinds of execution?

a. Compulsory execution (aka execution as a matter of right) – when judgment has attained finality

b. Discretionary execution (aka execution pending appeal pr exceptional execution)

GR: Execution may issue only upon judgment or final orders. Interlocutory order cannot be enforced by execution

XPN: An order for support pendente lite. An order for support pendente lite is an interlocutory order, but it may be enforced by execution.

What is a final order

A final order is one that disposes of the whole subject matter or terminates a particular proceeding or action, leaving nothing to be done but to enforce by execution what has been determined.

An interlocutory order is one that does not dispose of a case completely, but leaves something more to be done upon its merits.

An order denying a motion to dismiss is interlocutory because it does not dispose of the case completely; hence this order is not appealable. The remedy of the defendant whose motion to dismiss is denied is to file his answer and go to trial.

An order granting a motion to dismiss is a final order because it puts an end to the case. The remedy of the plaintiff whose complaint is dismissed is to appeal from the order of dismissal.

Appeal if seasonable taken, shall stay the judgment appealed from – although the judgment may be executed pending appeal if there is a good reason therefor.

But judgments in actions for:

a. Injunctionb. Receivershipc. Accounting; andd. Support

are immediately executor and shall be enforceable upon their rendition, hence not stayed by appeal.

Judgments in forcible entry and unlawful detainer, if against the defendant, may also be immediately executed upon its rendition on motion of the plaintiff.

A final and executory judgment may be enforced:

a. By a motion within five (5)days from the date of entry of judgment;b. By an action after the lapse of five (5) years from the date of entry of judgment but before it is barred by the statute of

limitations ( meaning within the next five years). This action is known as action to revive judgment.

The revived judgment may also be enforced by motion within five (5) years from the date of its entry, and thereafter by action before it is barred by the statute of limitations.

A judge may not order execution of judgment in the decision itself even in cases governed by the Rules on Summary Procedure.

Although in ejectment cases where the judgment, if against the defendant, is subject to immediate execution, ther must first be a motion to that effect and a hearing called for that purpose because the adverse party is entitled to notice before execution can be ordered.

The motion for execution may be filed in the trial court that rendered the judgment – meaning the court of origin.

The judgment obligee must file a motion before the court of origin with notice to the judgment obligor. The judgment oblige must submit, along with his motion, the following

a. Certified true copy of the judgment or final order sought to be enforcedb. Entry of judgment or final order.

After a judgment has become final, it is the ministerial duty of the court to issue the writ of execution.

If the judgment, however, was appealed to the appellate court, and the appeal has been finally resolved, but the trial court refuses to issue the writ of execution, then the remedy of the judgment oblige is to file a motion (not mandamus) with the appellate court and in the same case for an order directing the trial court to issue the writ of execution.

The five year period to file a motion for execution of judgment may be interrupted by agreement of the parties to defer or suspend enforcement of the judgment.

Requisites of execution pending appeal

a. There must be a motion by the prevailing party with notice to the adverse party;b. There must be good reason for execution pending appeal; andc. The good reason must be stated in the special order.

A motion for execution pending appeal should be filed in the trial court while it has jurisdiction over the case and is in possession of the original record or the record on appeal at the time of the filing of the motion.

After the trial has lost its jurisdiction over the case, the motion for execution pending appeal should be filed in the appellate court.

But even if the trial court has already lost its jurisdiction over the case, it may still order execution pending appeal prior to the transmission of the original record or record on appeal to the appellate court.

Whether it is the trial court or the appellate court that orders execution pending appeal, discretionary execution may only issue upon good reasons to be stated in a special order.

May execution pending appeal be stayed? How?

Yes, it may be stayed. The party against whom the execution pending appeal is directed shall file a supersedeas bond. And if the supersedeas bond is approved by the court, then the execution pending appeal may be stayed.

Certiorari is the remedy against an order granting execution pending appeal where the same is not founded upon good reasons. Appeal is not a speedy and adequate remedy that can relieve the losing party from immediate effects of an improvident execution pending appeal.

The availability of the ordinary course of appeal does not constitute sufficient ground to prevent a party from making use of the extraordinary remedy of certiorari where appeal is not an adequate remedy or equally beneficial or sufficient.

Where the reasons given for the execution pending appeal is that the appeal is frivolous and dilatory, execution pending appeal cannot be justified.

Awards for moral and exemplary damages cannot be the subject of execution pending appeal.

It has been held that even the danger of extinction of the corporation will not per se justify a discretionary execution unless there are showing of other good reasons.

The filing of the bond is not a good reason for ordering execution pending appeal.

How may execution be enforce in case of death of a party?

a. Where it is the judgment obligee who dies, execution may be enforced upon the application of his executor or administrator or successor in interest;

b. Where the judgment obligor who dies, execution may be enforced against his executor or administrator or successor in interest, if the judgment be for the recovery of real or personal property, or the enforcement of a lien thereon;

c. Where the judgment obligor dies after execution is actually levied upon his property, the same may be sold for the satisfaction of the judgment obligation.

Remedies of a third party claimant

a. He may file a third party claim

b. If a bond has been filed by the judgment oblige, the third party claimant may file an action against the bond within 120 days from the date of the filing of said bond

c. He may institute a separate action to vindicate his claim to the property;d. In preliminary attachment or replevin, he may also intervene in the action. Intervention in no longer available in execution

because intervention may be resorted to only before rendition of judgment by the trial court.

There is no right of redemption if what is sold on execution is a personal property.

If what is sold is a real property, there is a right of redemption which must be exercised within one year from the date of registration of the certificate of sale.

Who can redeem a real property sold on an execution sale?

a. Judgment obligorb. Redemptioner

If one who redeems is a redemptioner, there can be further redemption from him – which means that the property so redeemed may again be redeemed. But if the one who redeems is the judgment obligor himself, there can be no further redemption from him.

The right of redemption must be exercised within one year from the date of the registration of the certificate of sale. But if a redemptioner redeems from another redemptioner, he must do so within 60 days after the last redemption.

A redemptioner is a creditor having lien by virtue of an attachment, judgment, or mortgage on the property sol, or on some part thereof, subsequent to the lien under which the property was sold.

Where there is more property of the judgment obligor than is sufficient to satisfy the judgment and lawful fees, he must sell only so much of the personal or real property as is sufficient to satisfy the judgment and lawful fees.

When the sale is of real property, consisting of several known lots, they must be sold separately.

All rents, earnings, and income derived from the property during the period of redemption shall belong to the judgment obligor until the expiration of his period of redemption.

During the period of redemption, the judgment obligor is entitled to the possession of the property and is not required to pay rent to the purchaser.

Steps in execution of judgment or final order that has already become final and executor

a. Judgment oblige files a motion for execution with the trial court

b. Trial court issues order of execution;

c. Clerk of Court issues writ of execution

d. Sheriff or officer enforces writ of execution by levying on judgment obligor’s property

e. Sheriff or officer causes posting and publication of notice of sale and gives copy thereof to the judgment obligor

f. Sheriff or officer conducts execution sale on the date, time, and place stated in the notice

g. Sheriff or officer issues certificate of sale to the purchaser

h. Certificate of sale (if subject of the sale is real property) is registered with the Registry of Deeds

i. Judgment obligor or redemptioner redeems the property within one year from the date of the registration of the certificate of sale;

j. If no redemption is made within the one year period aforesaid, sheriff or officer issues final certificate of sale; purchaser becomes entitled to conveyance and possession of the property.