remrev 1 doctrines (midterms)

R E M E D I A L L A W R E V I E W I : C I V I L P R O D E C U R E | 1

1. INTRODUCTION1.1 Batas Pambansa Blg 129 1.2 Courts and their jurisdiction

LA NAVAL DRUG CORP V. CA, 236 SCRA 78The lack of jurisdiction over the person may be waived either expressly or impliedly. Defendant's voluntary appearance is deemed his submission of himself to the jurisdiction of the court. Jurisdiction over the subject matter is conferred by law and not within the courts and the parties to determine or set aside.

ATWEL V. CONCEPCION PROGRESSIVE ASSSOCIATION INC, G.R. NO 169370

Estoppel does not confer jurisdiction on a tribunal that has none over the cause of action or subject matter of the case. It is neither fair nor legal to bind a party to the result of a suit or proceeding in a court with no jurisdiction. The decision of a tribunal not vested with the appropriate jurisdiction is null and void.

FIGUEROA V. PEOPLE, G.R. NO 147406The issue of jurisdiction may be raised at any stage of the proceedings, even on appeal, and is not lost by waiver or by estoppel. Estoppel by laches may be invoked to bar the issue of lack of jurisdiction only in cases which the factual milieu is analogous to that of Tijam v. Sibonghanoy. The ruling in Tijam on the matter of jurisdiction is, however, the exception rather than the rule. Estoppel by laches may be invoked to par the issue of lack of jurisdiction only in cases which the factual milieu is analogous to the Sibonghanoy case.

1.3 How jurisdiction is obtained and exercised: Over persons Over subject matter Over res

SAMAR II ELECTRIC COOPERATIVE INC V. SELUDO, 671 SCRA 78The doctrine pf primary jurisdiction applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, has been placed within the special competence of an administrative agency.

2. GENERAL PROVISIONS FOR ORDINARY CIVIL ACTIONS

2.1 Must be based on a cause of action What is cause of action

BELLE CORP V. DE LEON-BANKS, 681 SCRA 351What is a cause of action? Acts or omissions by which a party violates a right of another, it is a formal statement of operative facts that give rise to

a remedial right and is determined by its averments in the pleading as to the acts committed by the defendant.Elements of a cause of action: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and(3) an act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages or other appropriate relief.

In determining whether a complaint states a cause of action, the RTC can consider all the pleadings filed, including annexes, motions, and the evidence on record. The focus is on the sufficiency, not the veracity of, of the material allegations. Moreover, the complaint does not have to establish facts proving the existence of a cause of action.

No splitting of cause of action

CITY OF BACOLOD V. SAN MIGUEL, 29 SCRA 819The violation of a single right may give rise to more than one relief. In other words, for a single cause of action or violation of a right, the plaintiff may be entitled to several reliefs. It is the filing of separate complaints for these several reliefs that constitutes splitting up of the cause of action. This is what is prohibited by the rule.

The rule against splitting a single cause of action is intended "to prevent repeated litigation; to protect defendant from unnecessary vexation; and to avoid the costs and expenses incident to numerous suits." It comes from that old maxim nemo debet bis vexare pro una et eadem causa (no man shall be twice vexed for one and the same cause).

Grounds to dismiss the second complaint:(1) If the first case is still pending (litis pendentia)(2) If the first case has been terminated (res judicata)

JALANDONI V. MARTIR-GUANZON, 102 PHIL 859Recovery of damages as a result of an original cause of action claimed under a second cause of action is barred by the previous judgment. To allow this is violation of Sections 3 and 4 of Rule 2 of the Rules of Court on splitting causes of action.

Joinder and misjoinder of causes of action Test of single cause of action

JOSEPH V. BAUTISTA, 170 SCRA 540The singleness of a cause of action lies in the singleness of the delict or wrong violating the rights of one person. If only one injury resulted from several wrongful acts, only one cause of action arises.

Parties to civil actions


Who are parties in interest Competency of parties Indispensable and necessary parties

PNB V. HEIRS OF ESTANISLAO MILITAR, 467 SCRA 377An indispensable party is one whose interest will be affected by the court’s action in the litigation, and without whom no final determination of the case can be had. The party’s interest in the subject matter of the suit and in the relief sought are so inextricably intertwined with the other parties’ that his legal presence as a party to the proceeding is an absolute necessity. In his absence there cannot be a resolution of the dispute of the parties before the court which is effective, complete, or equitable. There is, however, no fixed formula for determining who is an indispensable party; this can only be determined in the context and by the facts of the particular suit or litigation.

REPUBLIC V. MARCOS-MANOTOC, 665 SCRA 367Rule 3, Sec. 7 of the Rules of Court defines indispensable parties as those parties-in-interest without whom there can be no final determination of an action. They are those parties who possess such an interest in the controversy that a final decree would necessarily affect their rights, so that the courts cannot proceed without their presence. Parties are indispensable if their interest in the subject matter of the suit and in the relief sought is inextricably intertwined with that of the other parties.

Joinder and misjoinder of parties Death of party

o Consequence of death of party

SARSABA V. VDA DELA TORRE, 594 SCRA 410Failure to effect service of summons unto Patricio Sereno, one of the defendants herein does not render the action DISMISSIBLE, considering that the three (3) other defendants, namely, Atty. Rogelio E. Sarsaba, Fulgencio Lavares and the NLRC, were validly served with summons and the case with respect to the answering defendants may still proceed independently, furthermore they were given the chance to raise all possible defense and objections.

When a party to a pending action dies and the claim is not extinguished the rules require substitution of the deceased. (Section 1 Rule 87), Such is not a matter of jurisdiction but rather of due process.

GONZALES V. PAGCOR, 429 SCRA 533The question as to whether an action survives or not depends on the nature of the action and the damage sued for. If the causes of action which survive the wrong complained of affects primarily and principally property and property rights, the injuries to the person being merely incidental, while in the causes of action which do not survive the injury complained of is to the person the property and rights of property affected being incidental.

What counsel should do on death of party

2.2 Venue of actions Real and personal actions

UNITED OVERSEAS BANK V. ROSEMOORE MINING & DEVT, 518 SCRA 123

A real action should be commenced and tried in the province where the property or part of the property lies. A personal action may be commenced and tried where the plaintiff or any of the principal defendants resides, at the election of the plaintiff.

Actions against non-residents Agreement on venue

2.3 Commencement of actions How and when deemed commenced

MAGASPI V. RAMOLETE, 115 SCRA 193A case is deemed filed only upon payment of the docket fee regardless of the actual date of its filing in court. When a pleading is amended, the original pleading is deemed abandoned. The additional docket fee to be paid should thus be based on their amended complaint.

MANCHESTER DEVT CORP V. COURT OF APPEALS, 149 SCRA 562The Court acquires jurisdiction over any case only upon payment of the prescribed docket fee. An amendment of the complaint or similar pleading will not thereby vest jurisdiction in the Court, much less the payment of the docket fee based on the amounts sought in the amended pleading.

SUN INSURANCE V. ASUNCION, 170 SCRA 274It is not only the filing of the complaint, but the payment of the prescribed docket fee, that vests a trial court with jurisdiction over the subject matter or nature of the action; permissive counter-claims, third-party claims and the like shall not be considered filed until and unless the prescribed filing fee is paid.

HEIRS OF RUBEN REINOSO JR. V. COURT OF APPEALS, G.R. NO 116121

The General Rule is that payment in full of the docket fees within the prescribed period is mandatory to acquire jurisdiction, BUT in the interest of justice such rule can be relaxed. (look into the circumstances). Considering the foregoing, there is a need to suspend the strict application of the rules so that the petitioners would be able to fully and finally prosecute their claim on the merits at the appellate level rather than fail to secure justice on a technicality, for, indeed, the general objective of procedure is to facilitate the application of justice to the rival claims of contending parties, bearing always in mind that procedure is not to hinder but to promote the administration of justice.


When does court acquire jurisdiction over a case Effect of underpayment of docket fees

- Rule: Payment may be allowed within reasonable time but within reglementary period

- But in several cases, both CA and SC have caused the dismissal of cases for nonpayment of docket fees

3. PROCEDURE IN REGIONAL TRIAL COURTS 3.1 Applicable also to First Level Courts3.2 Special Rules applicable to First Level Courts

- Rule on Summary Procedure - Rule of Procedure on Small Claims Cases (A.M. 08-8-7-SC)

3.3 Pleadings in General Kinds of Pleadings Formal requirements of Pleadings

- Parts of a Pleading- Verification when required

o Formal, not jurisdictional

KILUSAN-OLALIA V. COURT OF APPEALS, 528 SCRA 45Verification is a formal, not a jurisdictional requisite, as it is mainly intended to secure an assurance that the allegations therein made are done in good faith or are true and correct and not mere speculation. The Court may order the correction of the pleading, if not verified, or act on the unverified pleading if the attending circumstances are such that a strict compliance with the rule may be dispensed with in order that the ends of justice may be served.

o Verification by counsel

IN-N-OUT BURGER INC V. SCHWANI INC, 575 SCRA 535A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on authentic records. The party itself need not sign the verification. A party's representative, lawyer or any other person who personally knows the truth of the facts alleged in the pleading may sign the verification.

- Certification against Forum Shopping in initiatory Pleadings

o Definition of Forum Shopping

TOKIO MARINE MALAYAN INSURANCE V. VALDEZ, G.R. 150107The rationale against forum shopping is that a party should not be allowed to pursue simultaneous remedies in two different courts as it constitutes abuse of court processes, which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts.

NEGROS SLASHERS V. TENG, 666 SCRA 629For forum shopping to exist, it is necessary that (a) there be identity of parties or at least such parties that represent the same interests in both actions; (b) there be identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding particulars is such that any judgment rendered in one action will, regardless of which party is successful, amount to res judicata in the other action

A requirement of res judicata is that the decision must have been rendered by a court having jurisdiction over the subject matter and the parties. Although contractually authorized to settle disputes, the Office of the Commissioner of the MBA is not a court of competent jurisdiction as contemplated by law with respect to the application of the doctrine of res judicata.

o Counsel cannot sign certification; exception

DIGITAL MICROWAVE CORP V. COURT OF APPEALS, G.R. 128550The reason the certification against forum shopping is required to be accomplished by petitioner himself is because only the petitioner himself has actual knowledge of whether or not he has initiated similar actions or proceedings in different courts or agencies.

GUY V. COURT OF APPEALS, G.R. 163707Rule 7, Section 5 of the Rules of Court provides that the certification of non-forum shopping should be executed by the plaintiff or the principal party. Failure to comply with the requirement shall be cause for dismissal of the case. However, a liberal application of the rules is proper where the higher interest of justice would be served. In Sy Chin v. Court of Appeals, 11 we ruled that while a petition may have been flawed where the certificate of non-forum shopping was signed only by counsel and not by the party, this procedural lapse may be overlooked in the interest of substantial justice. 12 So it is in the present controversy where the merits 13 of the case and the absence of an intention to violate the rules with impunity should be considered as compelling reasons to temper the strict application of the rules.

SY CHIN V. COURT OF APPEALS, G.R. 136233While it is true that the petition may have been flawed as the certificate of non-forum shopping was signed only by counsel and not by the party, suffice it to say that this procedural lapse may be overlooked in the interest of substantial justice. Given the facts and circumstances of the case, we likewise find no reversible error with the respondent court’s evaluation that there is prima facie merit in the petition.

o Co-owner or co-party may sign in behalf of co-owners or co-parties

CAVILA V. HEIRS OF CLARITA CAVILE, 400 SCRA 255


Rules on forum shopping should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate objective. The rule of substantial compliance may be availed of with respect to the contents of the certification.

- Distinction between non-compliance of verification and certification against forum shopping requirement

SARI-SARI GROUP OF COMPANIES V. PIGLAS KAMAO, 561 SCRA 569The purpose of requiring a verification is to secure an assurance that the allegations the petition have been made in good faith, or are true and correct, not merely speculative.On the other hand, the lack of a Certificate of Non-Forum Shopping, unlike that of Verification is generally not curable by the submission thereof after the filing of the petition. The submission of a certificate against forum shopping is thus deemed obligatory, albeit not jurisdictional.

The rule on certification against forum shopping may, however, be also relaxed on grounds of "substantial compliance" or "special circumstances or compelling reasons."

MEDIAN CONTAINER CORP V. METROBANK, 561 SCRA 622Verification distinguished from Certification against forum shopping

Verification Certification against forum shopping

Formal requirement; Not necessary except when required by law

Jurisdictional requirement (mandatory)

Purpose: to assure that the allegations in the pleading are true and correct

Purpose: to prevent multiplicity of suits

Court ay order the correct of pleading if verification is lacking

The lack of certification against forum shopping is not curable by mere amendment of a complaint, but shall be a cause for the dismissal of the case without prejudice

Substantial requirements of Pleadings - Sufficiency of allegations

o Ultimate facts only

REMITERE V. YULO, 16 SCRA 251The lack of a cause of action as a ground for dismissal must appear on the face of the complaint, and to determine whether the complaint states a cause of action only the facts alleged therein, and no other, should be considered.

PHIL STOCK EXCHANGE V. MANILA BANKING CORP, 559 SCRA 352

Ultimate facts refer to the principal, determinative, constitutive facts upon which rest the existence of the cause of action. – The term does not refer to details of probative matter or particulars of evidence which establish the material elements.

o Test of sufficiency of complaint1) Can judgment be rendered if admitted?2) Always reckon against grounds for

dismissal 3) Is bill of particulars applicable?

PHIL BANK OF COMMUNICATIONS V. TRAZO, 500 SCRA 242To sustain a motion to dismiss for lack of cause of action, the Complaint must show that the claim for relief does not exist rather than that a claim has been defectively stated or is ambiguous, indefinite or uncertain.

For the complaint to be dismissed for failure to state the cause of action, the insufficiency of the cause of action must appear on the face of the complaint. If the allegations in a complaint can furnish a sufficient basis by which the complaint can be maintained, the same should not be dismissed regardless of the defenses that may be assessed by the defendants.

o Test of sufficiency of complaint1) Not susceptible to summary judgment 2) Does not amount to confession of

judgment 3) Must tender an issue 4) Must specifically deny “material

allegations” lest they be deemed admitted

GAZA V. LIM, G.R. 126863A defendant must specify each material allegation of fact the truth of which he does not admit and, whenever practicable, shall set forth the substance of the matters upon which he relies to support his denial.

5) Defenses and objections MUST be pleaded either in Motion to Dismiss or Answer, else waived

o Alternative causes of action or defenses may be pleaded even if inconsistent with each other

o Purpose of rule is to allow for complete adjudication of any controversy

Counterclaims - Rule on permissive and compulsory counterclaims- Test to determine nature of counterclaim

NAMARCO V. FEDERATION OF UNITED NAMARCO DISTRIBUTORS, 49 SCRA 238


Test to determine nature of counterclaim(1) Are the issues of fact and law raised by the claim and

counterclaim largely the same?(2) Would res judicata bar a subsequent suit on defendant's claim

absent the compulsory counterclaim rule?(3) Will substantially the same evidence support or refute plaintiff's

claim as well as defendant's counter-claim?(4) Is there any logical relation between the claim and the counter-

claim?

An affirmative answer to each of the foregoing questions suggests that the counterclaim is compulsory.

BUNGCAYAO SR. V. FORT ILOCANDIA, 618 SCRA 318The compelling test of compulsoriness characterizes a counterclaim as compulsory if there should exist a logical relationship between the main claim and the counterclaim. There exists such a relationship when conducting separate trials of the respective claims of the parties would entail substantial duplication of time and effort by the parties and the court; when the multiple claims involve the same factual and legal issues; or when the claims are offshoots of the same basic controversy between the parties.

CALIBRE TRADERS INC V. BAYER PHILS, 633 SCRA 34The rules and jurisprudence do not require that the parties to the counterclaim be the original parties only. In fact, the presence of third parties is allowed, the only provision being their capacity to be subjected under the court‘s jurisdiction. As regards the nature of the claims of the parties, neither is it required that they be of the same nature, only that they arise from the same transaction or occurrence.

Read Judicial Affidavit Rule A.M. 12-8-8-SC

3.4 Effect of Failure to Plead Order of default

- By motion only, court cannot motu proprio declare party in default

Consequences of Order of default- Judgment by default, extent thereof limited by relief

prayed for- Need for presentation of evidence

Rational for Order of default

3.5 Amended/Supplemental Pleadings Amendment a matter of right before responsive pleading filed

- No limitation on extent of amendment, even changing cause of a

- ction set out in original pleading

- Right to amend not affected by motion to dismiss or motion for summary judgment on the pleadings which are not considered “responsive pleading”

- Rule when some but not all defendants filed responsive pleading

When issues joined, substantial amendments discretionary and subject to the rule that the cause of action is not substantially changed or the theory altered

PLANTERS DEVELOPTMENT BANK V. LZK HOLDINGS & DET CO, 456 SCRA 366

A supplemental pleading only serves to bolster or adds something to the primary pleading. A supplement exists side by side with the original. It does not replace that which it supplements. Moreover, a supplemental pleading assumes that the original pleading is to stand and that the issues joined with the original pleading remained an issue to be tried in the action. It is but a continuation of the complaint. Its usual office is to set up new facts which justify, enlarge or change the kind of relief with respect to the same subject matter as the controversy referred to in the original complaint. The purpose of the supplemental pleading is to bring into the records new facts which will enlarge or change the kind of relief to which the plaintiff is entitled; hence, any supplemental facts which further develop the original right of action, or extend to vary the relief, are available by way of supplemental complaint even though they themselves constitute a right of action.

YOUNG V. SY, 503 SCRA 151 (2006)In Leobrera v. Court of Appeals, the Court ruled that when the cause of action stated in the supplemental complaint is different from the causes of action mentioned in the original complaint, the court should not admit the supplemental complaint; the parties may file supplemental pleadings only to supply deficiencies in aid of an original pleading, but not to introduce new and independent causes of action. However, in Planters Development Bank v. LZK Holdings and Development Co., the Court held that a broad definition of causes of action should be applied: while a matter stated in a supplemental complaint should have some relation to the cause of action set forth in the original pleading, the fact that the supplemental pleading technically states a new cause of action should not be a bar to its allowance but only a factor to be considered by the court in the exercise of its discretion; and of course, a broad definition of "cause of action" should be applied here as elsewhere.

PPA V. WG&A, G.R. 158401 (2008)Sec. 3, Rule 10 of the ROC amended the former rule where "or that the cause of action or defense is substantially altered" was stricken-off. The clear import of such amendment in Section 3, Rule 10 is that under the new rules, "the amendment may (now) substantially alter the cause of action or defense."

Amendment of the pleadings to conform to evidence presented during trial is allowed:


- When issues not raised by the pleadings are tried with the consent of the parties

- When, even if objected to, the court is satisfied if no prejudice will befall the objecting party

Supplemental pleadings not a matter of right

LEOBRERA V. COURT OF APPEALS, 170 SCRA 711 (1989)When the cause of action stated in the supplemental complaint is different from the causes of action mentioned in the original complaint, the court should not admit the supplemental complaint; the parties may file supplemental pleadings only to supply deficiencies in aid of an original pleading, but not to introduce new and independent causes of action.

Effect of amended pleadings- Supersedes original pleading- As a consequence, judicial admissions made in the

original pleadings need to be offered in evidence

DIRECTOR OF LANDS V. COURT OF APPEALS, 196 SCRA 94When pleadings judicial admissions, they must, in order to have such effect, be formally offered in evidence. In the case are amended, the original pleadings disappear from the record, lose their status as pleadings and cease to be judicial admissions. While they may nonetheless be utilized against the pleader as extra- at bar, it does not appear that the original application for registration containing the averment in question, or that particular averment itself, was offered or received in evidence for the petitioner in the Trial Court.

SPOUSES DIONISIO V. LINSANGAN, G.R. NO 178159 (2011)An amended complaint that changes the plaintiff's cause of action is technically a new complaint. Consequently, the action is deemed filed on the date of the filing of such amended pleading, not on the date of the filing of its original version. However, an amendment which does not alter the cause of action but merely supplements or amplifies the facts previously alleged, does not affect the reckoning date of filing based on the original complaint.

3.6 Responsive Pleadings What is a responsive pleading

- Answer – Judicial admissions binding on party

SANTOS V. LUMBAO, 519 SCRA 408 Facts alleged in a party’s pleading are deemed admissions of that party and are binding upon him, but this is not an absolute and inflexible rule. An answer is a mere statement of fact which the party filing it expects to prove, but it is not evidence. And in spite of the presence of judicial admissions in a party’s pleading, the trial court is still given leeway to consider other evidence presented.

- Answer – Judicial admissions NOT binding on party

GARDNER V. COURT OF APPEALS, 131 SCRA 585As a general rule, facts alleged in a party's pleading are deemed admissions of that party and binding upon it, but this is not an absolute and inflexible rule. An Answer is a mere statement of fact which the party filing it expects to prove, but it is not evidence.

Santos himself, in open Court, had repudiated the defenses raised in his answer and against his own interest, his testimony is deserving of weight and credence. Both the Trial Court and the Appellate Court believed in his credibility and we find no reason to overturn their findings thereon. Santos likewise admitted against his own interest that the petitioners did not receive from him any consideration, which corroborated the declarations of the petitioners. The Subdivision Joint Venture Agreement and the Supplemental Agreement express that the true and real nature of the agreement between the parties, which was for a subdivision and not a sale transaction.

When to file

SAN PEDRO CINEPLEX V. HEIRS OF ENANO, G.R. NO 190754The rule is that a defendant's answer should be admitted where it is filed before a declaration of default and no prejudice is caused to the plaintiff. Indeed, where the answer is filed beyond the reglementary period but before the defendant is declared in default and there is no showing that defendant intends to delay the case, the answer should be admitted.

Bill of particulars, a motion to dismiss interrupts period to file responsive pleading

Compulsory counterclaim or cross-claim should be set up in responsive pleading. However, it may be set up anytime thereafter (but before judgment) if omitted through oversight, inadvertence, or excusable negligence

Remedies of party declared in default

OTERO V. TAN, 678 SCRA 583A defending party declared in default retains the right to appeal from the judgment by default. The grounds that may be raised in such an appeal are restricted to any of the following: first, the failure of the plaintiff to prove the material allegations of the complaint; second, the decision is contrary to law; and third, the amount of judgment is excessive or different in kind from that prayed for. In these cases, the appellate tribunal should only consider the pieces of evidence that were presented by the plaintiff during the ex parte presentation of his evidence.

3.7 Filing and service of pleadings and judicial papers Service on counsel is mandatory unless otherwise ordered by

court


- Improper service is ineffectual and does not bind party

CABILI V. BADELLES, 6 SCRA 190 As there is no provision in the Election Law about the manner in which the parties should be notified, the Rules of Court should be followed in such matters. Thus pursuant to the ROC, service of decisions should be made to the lawyers on record and not to parties. In a long line of decisions, We have held that when a party appears by an attorney who makes of record his appearance, service of pleadings is required to be made upon said attorney and not upon the party; that a notice given to the client and not to his attorney is not a notice in law.

Service of pleadings and court papers (other than judgments, final orders and resolutions) may be done by substituted service if personal service and service by mail is not successful

Service of judgments, final orders and resolution must be personal or by registered mail only (or by publication where summons is served by publication)

- Service must be on counsel as service on party not permitted

- Where final order or judgment not served on party or lawyer, said judgment cannot become final or executory

3.8 Summons Rules on service is strictly construed, hence:

- For actions in personam- For actions in rem or quasi in rem- For actions against foreign juridical persons, service

only on those enumerated in the statute is allowed - For actions against foreign juridical entity service

must be on resident agent, government regulator, or nay of the officers, agents within the country

VENTURANZA V. COURT OF APPEALS, 156 SCRA 305It is further required by law that an effort or attempt should first be made to personally serve the summons and after this has failed, a substituted service may be caused upon the defendant, and the same must be reflected in the proof of service.

SAMARTINO V. RAON, 383 SCRA 664In actions in personam, service of summons upon the defendant shall be by personal service first and only when the defendant cannot be promptly served in person will substituted service be availed of. The pertinent facts and circumstances attendant to the service of summons must be stated in the proof of service or Officer's Return; otherwise, the substituted service cannot be upheld.

VALMONTE V. COURT OF APPEALS, 252 SCRA 92A resident defendant in an action in personam who cannot be personally served with summons may be summoned either by means of substituted service in accordance with Rule 14, Sec 8 or by publication as provided in Secs. 17 and 18 of the same Rule; if the action is in rem or quasi in rem, jurisdiction over the person of the defendant is not essential for giving the court jurisdiction so long as the court acquires jurisdiction over the res; what gves the court jurisdiction in an action in rem or quasi in rem is that it has jurisdiction over the res , and the service of summons in the manner provided in Sec. 17 is not for the purpose of vesting it with jurisdiction but for complying with the requirements of fair play and due process.

ASIAVEST. COURT OF APPEALS, 296 SCRA 539Although the foreign judgment was duly authenticated (Asiavest was able to adduce evidence in support thereto) and Heras was never able to overcome the validity of it, it still cannot be enforced against Heras here in the Philippines because Heras was not properly served summons. Hence, as far as Philippine law is concerned, the Hong Kong court has never acquired jurisdiction over Heras. This means then that Philippine courts cannot act to enforce the said foreign judgment.

The action against Heras is an action in personam and as far as Hong Kong is concerned, Heras is a non resident. He is a non resident because prior to the judgment, he already abandoned Hong Kong. The Hong Kong law on service of summons in in personam cases against non residents was never presented in court hence processual presumption is applied where it is now presumed that Hong Kong law in as far as this case is concerned is the same as Philippine laws. And under our laws, in an action in personam wherein the defendant is a non-resident who does not voluntarily submit himself to the authority of the court, personal service of summons within the state is essential to the acquisition of jurisdiction over her person. This method of service is possible if such defendant is physically present in the country. If he is not found therein, the court cannot acquire jurisdiction over his person and therefore cannot validly try and decide the case against him. Without a personal service of summons, the Hong Kong court never acquired jurisdiction. Needless to say, the summons tendered to Lopez was an invalid service because the same does not satisfy the requirement of personal service.

PHILAM GEN V. BREVA, 442 SCRA 217Where the defendant has already been served summons on the original complaint, the amended complaint may be served upon him without need of another summons. Conversely, when no summons has yet been validly served on the defendant, new summons for the amended complaint must be served on him.

It is not pertinent whether the summons is designated as an "original" or an "alias" summons as long as it has adequately served its purpose. What is essential is that the summons complies with the requirements under the


Rules of Court and it has been duly served on the defendant together with the prevailing complaint. In this case, the alias summons satisfies the requirements under the Rules, both as to its content and the manner of service.

BPI V. SANTIAGO, 519 SCRA 389Basic is the rule that a strict compliance with the mode of service is necessary to confer jurisdiction of the court over a corporation. The officer upon whom service is made must be one who is named in the statute; otherwise, the service is insufficient. The purpose is to render it reasonably certain that the corporation will receive prompt and proper notice in an action against it or to insure that the summons be served on a representative so integrated with the corporation that such person will know what to do with the legal papers served on him.

SAN PEDRO V. WILLY ONG AND NORMA CABELLES, G.R. NO 177598Summons is a writ by which the defendant is notified of the action brought against him. Service of such writ is the means by which the court may acquire jurisdiction over his person. Any judgment without such service in the absence of a valid waiver is null and void.

To provide perspective, it is crucial to determine first whether the action is in personam, in rem, or quasi in rem because the rules on service of summons under Rule 14 of the Revised Rules of Court apply according to the nature of the action.

CAB: The case instituted by San Pedro is anchored on his claim that he is the real and rightful owner of the subject properties, thus, no one else has the right to mortgage them. The real estate mortgages constituted on the subject properties in favor of Ong, annotated on their TCTs, are encumbrances on said properties, which may be considered a cloud on San Pedros title thereto.

In an action quasi in rem, an individual is named as defendant and the purpose of the proceeding is to subject his interests therein to the obligation or loan burdening the property. Actions quasi in rem deal with the status, ownership or liability of a particular property but which are intended to operate on these questions only as between the particular parties to the proceedings and not to ascertain or cut off the rights or interests of all possible claimants. The judgments therein are binding only upon the parties who joined in the action. Technically, they are neither in rem nor in personam.

Personal service of summons is preferred to substitute service. Only if the former cannot be made promptly can the process server resort to the latter. Moreover, the proof of service of summons must (a) indicate the impossibility of service of summons within a reasonable time; (b) specify the efforts exerted to locate the defendant; and (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. It is likewise required that the pertinent facts proving these circumstances be stated in the proof of service or in the officers return. The failure to comply faithfully, strictly and fully with all the foregoing requirements of substituted service renders the service of summons ineffective. Indisputably, the Sheriff did not comply with any of the foregoing requirements, thus, rendering his service of summons on Dela Pea invalid.

SANTOS V. PNOC EXPOLORATION, G.R. NO 170943The present rule expressly states that Service by publication applies "[i]n any action where the defendant is designated as an unknown owner, or the like, or whenever his whereabouts are unknown and cannot be ascertained by diligent inquiry." Thus, it now applies to any action, whether in personam, in rem or quasi in rem.

KAWASAKI PORT SERVICES V. AMORES, G.R. NO 58340As a personal action, personal or substituted service of summons on the defendants, not extraterritorial service, is necessary to confer jurisdiction on the court. In an action for injunction, extraterritorial service of summons and complaint upon the non-resident defendants cannot subject them to the processes of the regional trial courts which are powerless to reach them outside the region over which they exercise their authority.

3.9 Dismissal of action (Rule 16) Grounds

- Lack of jurisdiction over person

AMIGO V. COURT OF APPEALS, 25 3 SCRA 382Jurisdiction over the person of the defendant in a civil action is acquired either by his voluntary appearance in court and his submission to its authority or by service of summons; the issue of jurisdiction over the person of the defendant must be seasonably raised, and it can well be pleaded in a motion to dismiss or by way of an affirmative defense in an answer.

Unlike the question of jurisdiction over the subject matter which may be invoked at any stage of the proceedings (even on appeal), the issue of jurisdiction over the person of the defendant, however, as has been so held lately in La Naval Drug Corporation v. Court of Appeals, must be seasonably raised, and it can well be pleaded in a motion to dismiss or by way of an affirmative defense in an answer. The records bear out the fact that petitioners have allowed the issue of jurisdiction to pass unquestioned until the rendition of the judgment. It is now too late in the day for petitioners to assail the jurisdiction of the lower court over their person, a somersault that neither law nor policy will sanction.

- Lack of jurisdiction over subject matter

LA NAVAL V. COURT OF APPEALS, 236 SCRA 78


The submission of other issues in a motion to dismiss, or of an affirmative defense (as distinguished from an affirmative relief) in an answer, would necessarily foreclose, and have the effect of a waiver of, the right of a defendant to set up the court's lack of jurisdiction over the person of the defendant… In the same manner that a plaintiff may assert two or more causes of action in a court suit, a defendant is likewise expressly allowed, under Section 2, Rule 8, of the Rules of Court, to put up his own defenses alternatively or even hypothetically. Indeed, under Section 2, Rule 9, of the Rules of Court, defenses and objections not pleaded either in a motion to dismiss or in an answer, except for the failure to state a cause of action, are deemed waived. We take this to mean that a defendant may, in fact, feel enjoined to set up, along with his objection to the court's jurisdiction over his person, all other possible defenses. It thus appears that it is not the invocation of any of such defenses, but the failure to so raise them, that can result in waiver or estoppel. By defenses, of course, we refer to the grounds provided for in Rule 16 of the Rules of Court that must be asserted in a motion to dismiss or by way of affirmative defenses in an answer.

Lack of jurisdiction over the subject matter of the suit is yet another matter. Whenever it appears that the court has no jurisdiction over the subject matter, the action shall be dismissed (Section 2, Rule 9, Rules of Court). This defense may be interposed at any time, during appeal (Roxas vs. Rafferty, 37 Phil. 957) or even after final judgment (Cruzcosa vs. Judge Concepcion, et al., 101 Phil. 146). Such is understandable, as this kind of jurisdiction is conferred by law and not within the courts, let alone the parties, to themselves determine or conveniently set aside.

Lack of jurisdiction over the nature of the action is the situation that arises when a court, which ordinarily would have the authority and competence to take a case, is rendered without it either because a special law has limited the exercise of its normal jurisdiction on a particular matter or because the type of action has been reposed by law in certain other courts or quasi-judicial agencies for determination. Nevertheless, it can hardly be questioned that the rules relating to the effects of want of jurisdiction over the subject matter should apply with equal vigor to cases where the court is similarly bereft of jurisdiction over the nature of the action.

ILOCOS SUR ELECTRIC V. NLRC, 241 SCRA 36The NLRC's jurisdiction was only raised for the first time in this petition. Petitioners did not question the jurisdiction of the Labor Arbiter either in a motion to dismiss or in their answer. In fact, petitioners participated in the proceedings before the Labor Arbiter, as well as in the NLRC to which they appealed that Labor Arbiter's decision. It has been consistently held by this Court that while jurisdiction may be assailed at any stage, a party's active participation in the proceedings before a court without jurisdiction will estop such party from assailing such lack of it. It is an undesirable practice of a party participating in the proceedings and submitting his case for decision and then accepting the judgment, only if favorable, and attacking it for lack of jurisdiction, when adverse.

ANDAYA V. ABADIA, 228 SCRA 705Jurisdiction over subject matter is essential in the sense that erroneous assumption thereof may put at naught whatever proceedings the court might have had. Hence, even on appeal, and even if the parties do not raise the issue of jurisdiction, the reviewing court is not precluded from ruling that it has no jurisdiction over the case. It is elementary that jurisdiction is vested by law and cannot be conferred or waived by the parties or even by the judge. It is also irrefutable that a court may at any stage of the proceedings dismiss the case for want of jurisdiction. For this matter, the ground of lack of jurisdiction in dismissing a case is not waivable. Hence, the last sentence of Sec. 2, Rule 9, Rules of Court, expressly states: "Whenever it appears that the court has no jurisdiction over the subject matter, it shall dismiss the action."

Note that Sec. 2, Rule 9 uses the word "shall," leaving the court no choice under the given situation but to dismiss the case. The same Rule also uses the phrase "whenever it appears," which means at anytime after the complaint or amended complaint is filed, because the lack of jurisdiction may be apparent from the allegations therein. Hence, from the foregoing, even if no answer or motion to dismiss is filed the court may dismiss the case for want of jurisdiction. In this sense, dismissal for lack of jurisdiction may be ordered by the court motu proprio. Applying this notion to the case at bar, with the dismissal of the case against respondents for lack of jurisdiction, it then becomes inconsequential whether the court acted on the Urgent Motion to Dismiss or on the Omnibus Motion without the requisite notice as provided in Secs. 4 and 6 of Rule 15 of the Rules of Court. The determination of lack of jurisdiction over respondents being apparent from the face of the amended complaint, the defect of want of prior notice and hearing on the Omnibus Motion could not by itself confer jurisdiction upon the court a quo.

REPUBLIC V. BANTIGUE POINT DEVT CORP, 668 SCRA 158The rule is settled that lack of jurisdiction over the subject matter may be raised at any stage of the proceedings. 18 Jurisdiction over the subject matter is conferred only by the Constitution or the law. 19 It cannot be acquired through a waiver or enlarged by the omission of the parties or conferred by the acquiescence of the court. 20 Consequently, questions of jurisdiction may be cognizable even if raised for the first time on appeal.

- Litis pendentia

ANDERSONS GROUP V. COURT OF APPEALS, 266 SCRA 423Lis pendens as a ground for the dismissal of a civil action refers to that situation wherein another action is pending between the same parties for the same cause of action. To constitute the defense of lis pendens, it must appear that not only are the parties in the two actions the same but there is substantial identity in the cause of action and relief sought. Further, it is required that the identity be such that any judgment which may be rendered in the other would, regardless of which party is successful, amount to res judicata the case on hand.


All these requisites are present in the instant case. The parties in Davao and Caloocan cases are the same. They are suing each other for sums of money which arose from their contract of agency. As observed by the appellate court, the relief prayed for is based on the same facts and there is identity of rights asserted. Any judgment rendered in one case would amount to res judicata in the other.

RAMOS V. PERALTA, 203 SCRA 412Under the rules and jurisprudence, for litis pendentia to be invoked as a ground for the dismissal of an action, the concurrence of the following requisites is necessary: (a) Identity of parties or at least such as represent the same interest in both actions; (b) Identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (c) The identity in the two cases should be such that the judgment that may be rendered in one would, regardless of which party is successful, amount to res judicata in the other.

Petitioner next contends that the dismissal of Civil Case No. 103647 deprived him of his right to choose the venue of his action. Verily, the rules on the venue of personal actions are laid down generally for the convenience of the plaintiff and his witnesses. But, as observed by private respondents, this right given to the plaintiff is not immutable. It must yield to the greater interest of the orderly administration of justice, which as in this case, may call for the dismissal of an action on the basis of litis pendentia to obviate the possibility of conflicting decisions being rendered by two different courts. As private respondents would put it, "(T)he Rules of Court are not perfect. It does not pretend to be able to make everyone happy simultaneously or consecutively or all the time. Even the Rules of Court has hierarchy of values; thus, the choice of venue may bow to dismissal of the case because of litis pendentia. At any rate, petitioner cannot complain of any inconvenience arising from the dismissal of Civil Case No. 103647. Being the defendant in Civil Case No. 4102, he cannot but litigate before the Bataan court, and bringing his consignation case before the same court would actually save him time, effort and litigation expenses.

YAP V. CHUA, 672 SCRA 411Litis pendentia as a ground for the dismissal of a civil action refers to that situation wherein another action is pending between the same parties for the same cause of action, such that the second action becomes unnecessary and vexatious. The underlying principle of litis pendentia is the theory that a party is not allowed to vex another more than once regarding the same subject matter and for the same cause of action. This theory is founded on the public policy that the same subject matter should not be the subject of controversy in courts more than once, in order that possible conflicting judgments may be avoided for the sake of the stability of the rights and status of persons.The requisites of litis pendentia are: (a) the identity of parties, or at least such as representing the same interests in both actions; (b) the identity of

rights asserted and relief prayed for, the relief being founded on the same facts; and (c) the identity of the two cases such that judgment in one, regardless of which party is successful, would amount to res judicata in the other.

The test to determine whether the causes of action are identical is to ascertain whether the same evidence will sustain both actions, or whether there is an identity in the facts essential to the maintenance of the two actions. If the same facts or evidence would sustain both, the two actions are considered the same, and a judgment in the first case is a bar to the subsequent action. Hence, 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 between the same parties or their privies.

- Res judicata

VDA DE CRUZO V. CARIAGA, 174 SCRA 330The doctrine of res judicata thus lays down two main rules which may be stated as follows: (1) The judgment or decree of a court of competent jurisdiction on the merits concludes the parties and their privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal; and (2) Any right, fact, or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies whether or not the claim or demand, purpose, or subject matter of the two suits is the same.

The following requisites must concur in order that a prior judgment may bar a subsequent action, viz: (1) the former judgment or order must be final; (2) it must be a judgment or order on the merits, that is, it was rendered after a consideration of the evidence or stipulations submitted by the parties at the trial of the case; (3) it must have been rendered by a court having jurisdiction over the subject matter and the parties; and (4) there must be, between the first and second actions, identity of parties, of subject matter and of cause of action.

Where the dismissal was for failure to prosecute, it had the effect of an adjudication on the merits, and operates as res judicata, since the court did not direct that the dismissal was without prejudice.

HACIENDA BIGAA INC V. CHAVEZ, 618 SCRA 559 This provision comprehends two distinct concepts of res judicata: (1) bar by former judgment and (2) conclusiveness of judgment. Under the first concept, res judicata absolutely bars any subsequent action when the following requisites concur: (a) the former judgment or order was final; (b) it adjudged the pertinent issue or issues on their merits; (c) it was rendered by a court that had jurisdiction over the subject matter and the parties; and


(d) between the first and the second actions, there was identity of parties, of subject matter, and of causes of action.

Where no identity of causes of action but only identity of issues exists, res judicata comes under the second concept — i.e., under conclusiveness of judgment. Under this concept, the rule bars the re-litigation of particular facts or issues involving the same parties even if raised under different claims or causes of action. Conclusiveness of judgment finds application when a fact or question has been squarely put in issue, judicially passed upon, and adjudged in a former suit by a court of competent jurisdiction. The fact or question settled by final judgment or order binds the parties to that action (and persons in privity with them or their successors-in-interest), and continues to bind them while the judgment or order remains standing and unreversed by proper authority on a timely motion or petition; the conclusively settled fact or question furthermore cannot again be litigated in any future or other action between the same parties or their privies and successors-in-interest, in the same or in any other court of concurrent jurisdiction, either for the same or for a different cause of action. Thus, only the identities of parties and issues are required for the operation of the principle of conclusiveness of judgment.

While conclusiveness of judgment does not have the same barring effect as that of a bar by former judgment that proscribes subsequent actions, the former nonetheless estops the parties from raising in a later case the issues or points that were raised and controverted, and were determinative of the ruling in the earlier case. 42 In other words, the dictum laid down in the earlier final judgment or order becomes conclusive and continues to be binding between the same parties, their privies and successors-in-interest, as long as the facts on which that judgment was predicated continue to be the facts of the case or incident before the court in a later case; the binding effect and enforceability of that earlier dictum can no longer be re-litigated in a later case since the issue has already been resolved and finally laid to rest in the earlier case.

- No cause of action

SAN LORENZO V. COURT OF APPEALS, 288 SCRA 115 A motion to dismiss on the ground of failure to state a cause of action in the complaint hypothetically admits the truth of the facts alleged therein. However, the hypothetical admission is limited to the "relevant and material facts well pleaded in the complaint and inferences fairly deductible therefrom. The admission does not extend to conclusions or interpretations of law; nor does it cover allegations of fact the falsity of which is subject to judicial notice." As this Court held in De Dios v. Bristol Laboratories (Phils.), Inc.: . . . For the purpose, the motion to dismiss must hypothetically admit the truth of the facts alleged in the complaint. The admission, however, is limited only to all material and relevant facts which are well pleaded in the complaint. Thus, it has been ruled that a demurrer does not admit the truth of mere epithers charging fraud; nor allegations of legal conclusions; nor an erroneous statement of law. The admission of the truth of material and

relevant facts well pleaded does not extend to render a demurrer an admission of inferences or conclusions drawn therefrom, even if alleged in the pleading; nor mere inferences or conclusions from facts not stated; nor conclusions of law; nor matters of evidence; nor surplusage and irrelevant. . . ." However, it should be pointed out at the outset that it is not "lack or absence of cause of action" that is a ground for dismissal of the complaint, but rather, that "the complaint states no cause of action." De Dios did indeed hold that a movant to dismiss on the ground of failure of the complaint to state a cause of action is burdened with the implied admission of the truth of "all material and relevant facts which are well pleaded in the complaint," but not of "mere epithers charging fraud," or legal conclusions, or mere inferences, or matters of evidence. Said case gave examples of allegations not within the hypothetical admission rule, to wit: "malicious and unjustified" institution of an action acting maliciously and for the purpose of political persecution and vengeance, with intent of circumventing a constitutional provision; usurping the Office of Senator of the Philippines; that the master had breached the contract, or discharged an employee in a wrongful, illegal, unlawful, unjust manner, etc.

CAB: ruling in De Dios, does not apply to the case at bar. In the instant case, the complaint asserts that plaintiff purchased the property in question from the person admittedly holding title thereto. It then infers that by this mode, it became the successor-in-interest of the vendor, if not indeed the owner of the property. Hence, the restrictions in the title should be nullified not only because it is contrary to law but also because the conditions under which they were imposed had ceased to exist. In fact, the averments in the complaint like the title of ADEC's vendor, the execution of the sale by said vendor to ADEC, the latter's status as the vendor's successor-in-interest, and the altered physical environment along Pasay Road, are allegations well within the hypothetical-admission principle. These averments satisfy the three (3) elements of a cause of action. In other words, the complaint did state a cause of action. In view of such, SLVAI cannot successfully invoke the ground that the complaint "fails to state a cause of action" in its motion to dismiss.

CALALANG V. INTERMEDIATE APPELLATE COURT, 194 SCRA 514It is a well-settled rule that in a motion to dismiss based on the failure of the complaint to state a cause of action, the question submitted for determination is sufficiency of allegation in the complaint itself. The sufficiency of the cause of action must appear on the face of the complaint itself in order to sustain a dismissal on the ground. (Clavano vs. Genato, 80 SCRA 217). This rule applies when the only affirmative defense is the failure of the complaint to state a cause of action. It does not apply when the grounds relied upon by way of affirmative defenses state other matters. Thus the trial court, in the case at bar, did not commit any error in conducting a preliminary hearing on the affirmative defenses of herein petitioners.

PERPETUAL V. FAJARDO, 233 SCRA 720


The familiar test for determining whether a complaint did or did not state a cause of action against the defendants is whether or not, admitting hypothetically the truth of the allegations of fact made in the complaint, a judge may validly grant the relief demand in the complaint. Having examined the record here carefully, and while the complaint filed in the trial court is not exactly a model of draftsmanship, we consider that it substantially meets the established test and that the complaint does state cause(s) of action not only against the borrower corporation, J.J. Mining, but also against respondents Fajardo and Del Mundo in their personal and individual capacities.

The test of the sufficiency of the facts found in a petition as constituting a cause of action is whether or not, admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer thereof (Consolidated Bank and Trust Corp. v. Court of Appeals, 197 SCRA 663 [1991]). In determining the existence of a cause of action, only the statements in the complaint may properly be considered. It is error for the court to take cognizance of external facts or hold preliminary hearings to determine their existence. If the allegations in a complaint furnish sufficient basis by which the complaint may be maintained, the same should not be dismissed regardless of the defenses that may be assessed by the defendants.

CITY OF CEBU V. COURT OF APPEALS, 258 SCRA 175 A complaint should not be dismissed upon a mere ambiguity, indefiniteness or uncertainty of the cause of action stated therein for these are not grounds for a motion to dismiss but rather for a bill of particulars. It should not be dismissed for insufficiency unless it appears clearly from the face of the complaint that the plaintiff is not entitled to any relief under any state of facts which could be proved within the facts alleged therein.

The rule that: when the motion to dismiss is based on the ground that the complaint states no cause of action, no evidence may be allowed and the issue should only be determined in the light of the allegations of the complaint, is not without exceptions. In the case of Tan v. Director of Forestry, this Court departed from the aforementioned rule and held that, ". . . although the evidence of the parties were on the question of granting or denying the petitioner-appellant's application for a writ of preliminary injunction, the trial court correctly applied said evidence in the resolution of the motion to dismiss. Likewise, in Marcopper Mining Corporation v. Garcia we sanctioned the act of the trial court in considering, in addition to the complaint, other pleadings submitted by the parties in deciding whether or not the complaint should be dismissed for lack of cause of action. This Court deemed such course of action but logical where the trial court had the opportunity to examine the merits of the complaint, the answer with counterclaim, the petitioner's answer to the counterclaim and its answer to the request for admission. The same liberality should be applied in the instant case where an examination of petitioner's "Comment and Opposition" to private respondent's Motion to Dismiss leaves no room for

doubt that petitioner had indeed made ''a valid and definite offer" to private respondent as required by law.

Remedy in case of granting/denial of motion to dismiss- Order denying motion to dismiss is interlocutory,

hence proper remedy is to appeal after a decision has been rendered

INDIANA AEROSPACE UNIVERSITY V. CHED, 356 SCRA 367 An order denying a motion to dismiss is interlocutory, and so the proper remedy in such a case is to appeal after a decision has been rendered. A writ of certiorari is not intended to correct every controversial interlocutory ruling; it is resorted to only to correct a grave abuse of discretion or a whimsical exercise of judgment equivalent to lack of jurisdiction.

BANGKO SILANGAN V. COURT OF APPEALS, 360 SCRA 322A motion to dismiss is merely interlocutory and therefore not appealable, nor can it be the subject of a petition for review on certiorari. Such order may only be reviewed in the ordinary course of law by an appeal from the judgment after trial. The ordinary procedure to be followed in that event is to file an answer, go to trial, and if the decision is adverse, reiterate the issue on appeal from the final judgment.

YUTINGCO V. COURT PF APPEALS 386 SCRA 85As a general rule, an order denying a motion to dismiss is interlocutory and cannot be the subject of the extraordinary petition for certiorari or mandamus. Petitioners' recourse is to file an answer and to interpose as defenses the objections raised in their motion to dismiss, proceed to trial, and in case of an adverse decision, elevate the entire case by appeal in due course. Of course, there are exceptions to the aforecited rule. Among them are: (a) when the trial court issued the order without or in excess of jurisdiction, (b) when there is patent grave abuse of discretion by the trial court, or (c) when appeal would not prove to be a speedy and adequate remedy as when an appeal would not promptly relieve a defendant from the injurious effects of the patently mistaken order maintaining the plaintiffs baseless action and compelling the defendants to needlessly go through a protracted trial and clogging the court dockets with another futile case.

Order granting motion to dismiss disposes the case hence, appeal under Rule 41 is applicable

3.10Dismissal of action (Rule 17)

PINGA V. HEIRS OF SANTIAGO, G.R. NO 170354SEC. 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the


complaint may be dismissed upon motion of defendant or upon the court's own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court.

The dismissal of the complaint under Section 2 is at the instance of plaintiff, for whatever reason he is minded to move for such dismissal, and, as a matter of procedure, is without prejudice unless otherwise stated in the order of the court or, for that matter, in plaintiff's motion to dismiss his own complaint. By reason thereof, to curb any dubious or frivolous strategy of plaintiff for his benefit or to obviate possible prejudice to defendant, the former may not dismiss his complaint over the defendant's objection if the latter has a compulsory counterclaim since said counterclaim would necessarily be divested of juridical basis and defendant would be deprived of possible recovery thereon in that same judicial proceeding.

Section 3, on the other hand, contemplates a dismissal not procured by plaintiff, albeit justified by causes imputable to him and which, in the present case, was petitioner's failure to appear at the pre-trial. This situation is also covered by Section 3, as extended by judicial interpretation, and is ordered upon motion of defendant or motu proprio by the court. Here, the issue of whether defendant has a pending counterclaim, permissive or compulsory, is not of determinative significance. The dismissal of plaintiff's complaint is evidently a confirmation of the failure of evidence to prove his cause of action outlined therein, hence the dismissal is considered, as a matter of evidence, an adjudication on the merits. This does not, however, mean that there is likewise such absence of evidence to prove defendant's counterclaim although the same arises out of the subject matter of the complaint which was merely terminated for lack of proof. To hold otherwise would not only work injustice to defendant but would be reading a further provision into Section 3 and wresting a meaning therefrom although neither exists even by mere implication. Thus understood, the complaint can accordingly be dismissed, but relief can nevertheless be granted as a matter of course to defendant on his counterclaim as alleged and proved, with or without any reservation therefor on his part, unless from his conduct, express or implied, he has virtually consented to the concomitant dismissal of his counterclaim.

FILINVEST V. COURT OF APPEALS, G.R. NO 142439In situations contemplated in Section 3, Rule 17 of the Rules of Court, where a complaint is dismissed for failure of the plaintiff to comply with a lawful order of the court, such dismissal has the effect of an adjudication upon the merits. A dismissal for failure to prosecute has the effect of an adjudication on the merits, and operates as res judicata, particularly when the court did not direct that the dismissal was without prejudice.

HEIRS OF GAUDIANE V. COURT OF APPEALS, G.R. NO 119879

We cannot delve anymore into the legality and validity of the order of dismissal dated January 10, 1985 in Civil Case No. 6817 because it has long become final and executory for failure of the petitioners to file an appeal. In accordance with Section 3, Rule 17 of the 1997 Rules of Civil Procedure, said order had the effect of judgment on the merits although no trial was conducted because it did not contain any statement that the case was dismissed without prejudice to the filing of a similar future action. As such, based on the principle of res judicata, the petitioners are barred in another action (involving the same subject matter, parties and issues) from raising a defense and from asking for a relief inconsistent with an order dismissing an earlier case with prejudice. In Medija vs. Patcho, et al., we ruled that a case for partition and an action for quieting of title have identical causes of action and can therefore be the subject of res judicata. . . . Petitioners filed an action to quiet title for the sole purpose of claiming for themselves exclusive ownership of Lot 4389. On the other hand, in the case for partition filed by respondents, petitioners set up the defense of sole dominion in order to frustrate the equal division of the property between the heirs of Felix and Juana. Considering the similarity of petitioners' defense in this case with their main averment in the case for quieting of title, petitioners are barred by res judicata from claiming sole ownership of Lot 4389.

CRUZ V. COURT OF APPEALS, G.R. NO 164797Citing Section 3 Rule 17 of the Rules of Civil Procedure, the Supreme Court held that the rule enumerates the instances where the complaint may be dismissed due to plaintiff's fault: (1) if he fails to appear on the date for the presentation of his evidence in chief; (2) if he fails to prosecute his action for an unreasonable length of time; or (3) if he fails to comply with the rules or any order of the court. Once a case is dismissed for failure to prosecute, this has the effect of an adjudication on the merits and is understood to be with prejudice to the filing of another action unless otherwise provided in the order of dismissal. . . . The order dismissing Civil Case No. 1600 reads: For failure of the plaintiffs as well as counsel to appear on several settings despite due notices, precisely for the reception of plaintiffs' evidence, upon motion of the defendant through Atty. Mark Arcilla, this case is dismissed for failure to prosecute. It is clear from the afore-mentioned order that said case was dismissed, upon petitioners' motion, for failure of private respondents and their counsel to attend several scheduled hearings for the presentation of their evidence. Since the order did not contain a qualification whether same is with or without prejudice, following Section 3, it is deemed to be with prejudice and shall have the effect of an adjudication on the merits. A ruling based on a motion to dismiss, without any trial on the merits or formal presentation of evidence, can still be a judgment on the merits.

DAEL V. SPOUSES BELTRAN, G.R. NO 156470When a Notice of Dismissal, following Rule 17 Sec 1 ROC, is filed by the plaintiff, it is mandatory that the trial court issue an order confirming such


dismissal and, unless otherwise stated in the notice, the dismissal is without prejudice and could be accomplished by the plaintiff through mere notice of dismissal, and not through motion subject to approval by the court.

MENDOZA V. PAULE, G.R. NO 175885Where the defendant has interposed a counterclaim (whether compulsory or permissive) or is seeking affirmative relief by a cross-complaint, the plaintiff cannot dismiss the action so as to affect the right of the defendant in his counterclaim or prayer for affirmative relief. The reason for that exception is clear. When the answer sets up an independent action against the plaintiff, it then becomes an action by the defendant against the plaintiff, and, of course, the plaintiff has no right to ask for a dismissal of the defendant's action. The present rule embodied in Sections 2 and 3 of Rule 17 of the 1997 Rules of Civil Procedure ordains a more equitable disposition of the counterclaims by ensuring that any judgment thereon is based on the merit of the counterclaim itself and not on the survival of the main complaint. Certainly, if the counterclaim is palpably without merit or suffers jurisdictional flaws which stand independent of the complaint, the trial court is not precluded from dismissing it under the amended rules, provided that the judgment or order dismissing the counterclaim is premised on those defects. At the same time, if the counterclaim is justified, the amended rules now unequivocally protect such counterclaim from peremptory dismissal by reason of the dismissal of the complaint.

BENEDICTO V. LACSON, G.R. NO 142508It is a settled rule that an Order denying a motion to dismiss is merely interlocutory and, therefore, not appealable, nor can it be subject of a petition for review on certiorari. Such order may only be reviewed in the ordinary course of law by an appeal from the judgment after trial. The ordinary procedure to be followed in that event is to file an answer, go to trial, and if the decision is adverse, reiterate the issue on appeal from the final judgment.

3.11Pre-trial Definition

ANSON TRADE CENTER V. PACIFIC BANKING, G.R. NO 179999Pre-trial, by definition, is a procedural device intended to clarify and limit the basic issues raised by the parties and to take the trial of cases out of the realm of surprise and maneuvering. It is an answer to the clarion call for the speedy disposition of cases. Hailed as the most important procedural innovation in Anglo-Saxon justice in the nineteenth century, it thus paves the way for a less cluttered trial and resolution of the case.

Non-appearance by the plaintiff in the pre-trial shall be cause for dismissal of the action. However, every rule is not without an exception. In fact, Section 4, Rule 18 of the Revised Rules of Court explicitly provides that the non-appearance of a party may be excused if a valid cause is shown therefor. We find such a valid cause extant in the case at bar.

INTERLINING CORP V. PHILIPPINE TRUST, 428 SCRA 583The conduct of a pre-trial in civil actions has been mandatory as early as January 1, 1964, upon the effectivity of the Revised Rules of Court. Pre-trial is a procedural device intended to clarify and limit the basic issues between the parties. It thus paves the way for a less cluttered trial and resolution of the case. Its main objective is to simplify, abbreviate and expedite the trial, or totally dispense with it, as in the case at bar. Prescinding therefrom, it is a basic legal precept that the parties are bound to honor the stipulations they made during the pre-trial.

Setting for pre-trial

ESPIRITU V. LAZARO, G.R. NO 181020Section 1 of Rule 18 of the Rules of Court imposes upon the plaintiff the duty to set the case for pre-trial after the last pleading is served and filed. Under Section 3 of Rule 17, failure to comply with the said duty makes the case susceptible to dismissal for failure to prosecute for an unreasonable length of time or failure to comply with the rules.

In any case, petitioners should not have waited for the court to act on the motion to file a supplemental answer or for the defendants to file a supplemental answer. As previously stated, the rule clearly states that the case must be set for pre-trial after the last pleading is served and filed. Since respondents already filed a cautionary answer and [petitioners did not file any reply to it] the case was already ripe for pre-trial.

CAB: There was no justifiable reason for petitioners' failure to file a motion to set the case for pre-trial. Petitioners' stubborn insistence that the case was not yet ripe for pre-trial is erroneous. Although petitioners state that there are strong and compelling reasons justifying a liberal application of the rule, the Court finds none in this case. The burden to show that there are compelling reasons that would make a dismissal of the case unjustified is on petitioners, and they have not adduced any such compelling reason.

POLANCO V. CRUZ, G.R. NO 182426Section 1, Rule 18 of the 1997 Rules of Civil Procedure imposes upon the plaintiff the duty to promptly move ex parte to have the case set for pre-trial after the last pleading has been served and filed. Moreover, Section 3, Rule 17 21 provides that failure on the part of the plaintiff to comply with said duty without any justifiable cause may result to the dismissal of the complaint for failure to prosecute his action for an unreasonable length of time or failure to comply with the rules of procedure. It must be stressed that even if the plaintiff fails to promptly move for pre-trial without any justifiable cause for such delay, the extreme sanction of dismissal of the complaint might not be warranted if no substantial prejudice would be caused to the defendant, and there are special and compelling reasons which would make the strict application of the rule clearly unjustified.


- Conduct of Pre-trial and use of Deposition-Discovery Measures (A.M. No. 03-1-09-SC)

Failure to have pre-trial

MADRID V. SPOUSES MAPOY, G.R. NO 150887Without doubt, the petitioners-defendants, having been belatedly served summons and brought into the case, were entitled to a pre-trial as ordained by Section 2, Rule 18 of the Rules of Court. Unless substantial prejudice is shown, however, the trial court's failure to schedule a case for new trial does not render the proceedings illegal or void ab initio. Where, as in this case, the trial proceeded without any objection on the part of the petitioners-defendants by their failure to bring the matter to the attention of the RTC, the petitioners-defendants are deemed to have effectively forfeited a procedural right granted them under the Rules. Issues raised for the first time on appeal and not raised timely in the proceedings in the lower court are barred by estoppel. Points of law, theories, issues and arguments not brought to the attention of the trial court ought not to be considered by a reviewing court, as these cannot be raised for the first time on appeal. To consider the alleged facts and arguments raised belatedly would amount to trampling on the basic principles of fair play, justice, and due process.

Failure of defendant to appear- Will result in plaintiff presenting his evidence ex

parte and for the court to render judgment thereon - This is dissimilar to default from failure to plead

where the sanction is for the court to render judgment based on the complaint

Summary judgment or judgment on pleadings possible if facts are discovered in pre-trial to warrant such action

Effect of pre-trial order - General Rule: Binding on all parties, A.M. No. 03-1-

09-SC- Exception: Heirs of Reyes v. CA

HEIRS OF REYES V. COURT OF APPEALS, 519 SCRA 250A pre-trial is meant to serve as a device to clarify and narrow down the basic issues between the parties, to ascertain the facts relative to those issues and to enable the parties to obtain the fullest possible knowledge of the issues and facts before civil trials and thus prevent trials from being carried on in the dark. The rule, however, is not to be applied with rigidity and admits of certain exceptions. When the issues raised are embodied in the pleadings filed by the parties subsequent to the complaint, and actively litigated by them without objection on the part of the adverse parties, the latter are deemed to have given their implied consent to try such issue.

3.12Intervention

NORDIC ASIA V. COURT OF APPEALS, 403 SCRA 390The requirements for intervention are: [a] legal interest in the matter in litigation; and [b] consideration must be given as to whether the adjudication of the rights of the original parties may be delayed or prejudiced, or whether the intervenor's rights may be protected in a separate proceeding or not.

Legal interest, which entitles a person to intervene, must be in the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by direct legal operation & effect of the judgment.

SALANDANAN V. SPOUSES MENDOZA,G.R. NO 160280As a rule, intervention is allowed at any time before rendition of judgment by the trial court. After the lapse of this period, it will not be warranted anymore because intervention is not an independent action but is ancillary and supplemental to an existing litigation. The permissive tenor of the provision on intervention shows the intention of the Rules to give to the court the full measure of discretion in permitting or disallowing the same, but under Section 1, Rule 19 of the Rules of Court, the courts are nevertheless mandated to consider several factors in determining whether or not to allow intervention. The factors that should be reckoned are whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether the intervenors rights may be fully protected in a separate proceeding.

MACTAN CEBU INTL AIRPORT V. HEIRS OF MINOZA, G.R. NO 186045Intervention shall be allowed when a person has (1) a legal interest in the matter in litigation; (2) or in the success of any of the parties; (3) or an interest against the parties; (4) or when he is so situated as to be adversely affected by a distribution or disposition of property in the custody of the court or an officer thereof. Moreover, the court must take into consideration whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenor’s right or interest can be adequately pursued and protected in a separate proceeding.

The interest contemplated by law must be actual, substantial, material, direct and immediate, and not simply contingent or expectant. It must be of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment. Otherwise, if persons not parties to the action were allowed to intervene, proceedings would become unnecessarily complicated, expensive and interminable.

GSIS V. NOCOM, G.R. NO 175989Intervention is "a proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them; the act or proceeding by which a third person becomes a party in a suit pending between others; the admission, by leave of court, of a


person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest, alleged by him to be affected by such proceedings."

Section 1, Rule 19 of the 1997 Rules of Civil Procedure, as amended provides for the person who may intervene:

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

OMBUDSMAN V. MAXIMO SISON, G.R. NO 185954It is fundamental that the allowance or disallowance of a Motion to Intervene is addressed to the sound discretion of the court. The permissive tenor of the rules shows the discretionary intention in permitting or disallowing the intervention.

Intervention is a procedure by which third persons, not originally parties to the suit but claiming an interest in the subject matter, come into the case in order to protect their right or interpose their claim. Its main purpose is to settle in one action and by a single judgment all conflicting claims of, or the whole controversy among, the persons involved.

To warrant intervention under Rule 19 of the Rules of Court, two requisites must concur:

(1) the movant has a legal interest in the matter in litigation; and(2) intervention must not unduly delay or prejudice the adjudication of

the rights of the parties, nor should the claim of the intervenor be capable of being properly decided in a separate proceeding.

The interest, which entitles one to intervene, must involve the matter in litigation and of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.

However, the government party that can appeal is not the disciplining authority or tribunal which previously heard the case and imposed the penalty of demotion or dismissal from the service. The government party appealing must be the one that is prosecuting the administrative case against the respondent. Otherwise, an anomalous situation will result where the disciplining authority or tribunal hearing the case, instead of being impartial and detached, becomes an active participant in prosecuting the respondent.

3.13Discovery

Compulsory process wherein litigants are forced, by court rules or orders, to disgorge private information to adverse party

Purpose of discovery is to obtain knowledge of material facts within the knowledge of the adverse party or of third parties; obtain admissions from adverse parties and to inspect relevant documents, objects and property

What are discoverable - Limitations on discoverability

Modes of discovery - Deposition

o Function o When may be availed of

PAJARILLA V. COURT OF APPEALS, 570 SCRA 347While the rules on discovery are liberally constructed so as to ascertain truth and to expedite the disposal of cases, the trial court may disallow a deposition if there are valid reasons for so ruling.

The several postponements made by petitioner for the initial presentation of his evidence, we are of the view that his timing is, in fact, suspect. Petitioner offered no excuse for his and his counsel's absences. Besides, even as we scrutinize petitioner's arguments, we think that he has not sufficiently shown an "exceptional" or "unusual" case for us to grant leave and reverse the trial and appellate courts.

o De bene esse o Perpetuam rei memoriam (prior to action)o Who do you depose

- Interrogatories to parties- Requests for admission - Production and inspection of things - Examination of persons

REPUBLIC V. SANDIGANBAYAN, 204 SCRA 212The various modes or instruments of discovery are meant to serve (1) as a device, along with the pre-trial hearing under Rule 20, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts relative to those issues. The evident purpose is, to repeat, to enable parties, consistent with recognized privileges, to obtain the fullest possible knowledge of the issues and facts before trials and thus prevent that said trials are carried on in the dark. To this end, the field of inquiry that may be covered by depositions or interrogatories is as broad as when the interrogated party is called as a witness to testify orally at trial. The inquiry extends to all facts which are relevant, whether they be ultimate or evidentiary, excepting only those matters which are privileged. The objective is as much to give every party the fullest possible information of all the relevant facts before the trial as to obtain evidence for use upon said trial; leave of court is required as regards discovery by (a) production or


inspection of documents or things in accordance with Rule 27, or (b) physical and mental examination of persons under Rule 28, which may be granted upon due application and a showing of due cause.

DASMARINAS GARMENTS V. REYES, 225 SCRA 622Depositions are principally made available by law to the parties as a means of informing themselves of all the relevant facts; they are not therefore generally meant to be a substitute for the actual testimony in open court of a party or witness. The deponent must as a rule be presented for oral examination in open court at the trial or hearing. This is a requirement of the rules of evidence.

Any deposition offered to prove the facts therein set out during a trial or hearing, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground that it is hearsay; the party against whom it is offered has no opportunity to cross-examine the deponent at the time that his testimony is offered. It matters not that that opportunity for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time that the testimonial evidence is actually presented against him during the trial or hearing.

However, depositions may be used without the deponent being actually called to the witness stand by the proponent, under certain conditions and for certain limited purposes. These exceptional situations are governed by Section 4, Rule 24 of the Rules of Court.

AYALA LAND V. TAGLE, 466 SCRA 521The deposition was taken inside the courtroom by the Clerk of Court in the presence of the parties and their lawyers, and the entire proceedings was transcribed by the stenographers of the Court. Thus, the requirements that the deposition has to be sealed, examined and signed by the deponent, and also certified, sealed and signed by the deposition officer would be, to the mind of the court, already superfluous. Strict compliance with the formal requirements of Rule 23 would hold true in cases of depositions taken outside the Court. The rules on discovery should not be unduly restricted; otherwise, the perceived advantage of a liberal discovery procedure in ascertaining the truth and expediting the disposal of litigation would be defeated.

HYATT INDUSTRIAL V. LEY CONSTRUCTION, G.R. NO 147143The truth is that "evidentiary matters" may be inquired into and learned by the parties before the trial. Indeed, it is the purpose and policy of the law that the parties - before the trial if not indeed even before the pre-trial - should discover or inform themselves of all the facts relevant to the action, not only those known to them individually, but also those known to their adversaries; in other words, the desideratum is that civil trials should not be carried on in the dark; and the Rules of Court make this ideal possible through the deposition- discovery mechanism set forth in Rules 24 to 29.

SIME DARBY V. COURT OF APPEALS, 510 SCRA 204Petitioners Request for Admission does not fall under Rule 26 of the Rules of Court. A review of said Request for Admission shows that it contained matters which are precisely the issues in the consolidated cases, and/or irrelevant matters; for example, the reasons behind the lockout, the companys motive in the CBA negotiations, lack of notice of dismissal, the validity of the release and quitclaim, etc.

Rule 26 as a mode of discovery contemplates of interrogatories that would clarify and tend to shed light on the truth or falsity of the allegations in a pleading. That is its primary function. It does not refer to a mere reiteration of what has already been alleged in the pleadings.

Otherwise stated, petitioner's request constitutes an utter redundancy and a useless, pointless process which the respondent should not be subjected to. The rule on admission as a mode of discovery is intended to expedite trial and to relieve parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry. Thus, if the request for admission only serves to delay the proceedings by abetting redundancy in the pleadings, the intended purpose for the rule will certainly be defeated.

SECURITY BANK V. COURT OF APPEALS, 323 SCRA 330No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession.

Section 1 of Rule 27 clearly provides that the documents sought must be "material to any matter involved in the action." Respondents have shown that the subject documents are indeed material to the present action.

In this light, the relevance of the documents sought by Respondent Domingo Uy is readily apparent. The papers executed by the petitioner bank in evaluating and processing the real estate mortgage are manifestly useful in his defense against its cross-claim. The trial court's ruling that he could file his answer without examining those documents does not prove that they are immaterial to the present action. The CA has held that those documents would enable him to "intelligently prepare his defenses against the cross-claim of Petitioner SBC."

SOLIDBANK V. GATEWAY, G.R. NO 136051Rule 27 ROC permits “fishing” for evidence, the only limitation being that the documents, papers, etc., sought to be produced are not privileged, that they are in the possession of the party ordered to produce them and that they are material to any matter involved in the action. Either party may compel the other to disgorge whatever facts he has in his possession.

ROSETE V. LIM, G.R. NO 136051


Once an answer has been served, the testimony of a person, whether a party or not, may be taken by deposition upon oral examination or written interrogatories.

Section 1. Depositions pending action, when may be taken. — By 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, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 23. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

JOWEL SALES V. SABIN, G.R. NO 133154While depositions may be used as evidence in court proceedings, they are generally not meant to be a substitute for the actual testimony in open court of a party or witness. Stated a bit differently, a deposition is not to be used when the deponent is at hand. Indeed, any deposition offered during a trial to prove the facts therein set out, in lieu of the actual oral testimony of the deponent in open court, may be opposed and excluded on the ground of hearsay. However, depositions may be used without the deponent being called to the witness stand by the proponent, provided the existence of certain conditions is first satisfactorily established. Exceptions for the admissibility of a deposition are listed in Section 4, Rule 23. Among these is when the witness is out of the Philippines.

As a rule, the inadmissibility of testimony taken by deposition is anchored on the ground that such testimony is hearsay, i.e., the party against whom it is offered has no opportunity to cross-examine the deponent at the time his testimony is offered. But it matters not that opportunity for cross-examination was afforded during the taking of the deposition; for normally, the opportunity for cross-examination must be accorded a party at the time the testimonial evidence is actually presented against him during the trial or hearing. In fine, the act of cross-examining the deponent during the taking of the deposition cannot, without more, be considered a waiver of the right to object to its admissibility as evidence in the trial proper. In participating, therefore, in the taking of the deposition, but objecting to its admissibility in court as evidence, petitioner did not assume inconsistent positions. He is not, thus, estopped from challenging the admissibility of the deposition just because he participated in the taking thereof.

Certiorari will not lie against an order admitting or rejecting a deposition in evidence, the remedy being an appeal from the final judgment. For this reason, the CA could have dismissed Sales’ invocation of its certiorari jurisdiction.

- Sanctions for refusal to make discovery (Rule 29)3.14Trial

Order of trial Reverse trial when complaint is admitted

YU V. MAGPAYO, 44 SCRA 163Since the answer admitted defendant's obligation as stated in the complaint, albeit special defenses were pleaded, plaintiff had every right to insist that it was for defendant to come forward with evidence in support of his special defenses.

Reverse trial also in criminal cases When dispensed with; absence of party

REPUBLIC V. VDA DE NERI, G.R. NO 139588The trial court may dispense with a full-blown trial if the parties themselves agreed thereto, on the claim that the issues raised may be resolved on the basis of the pleadings, the memoranda and the appended documents, without need of presenting witnesses. A party may waive its right to present testimonial evidence and opt to adduce documentary evidence and thereafter, submit the case for resolution based solely on their pleadings and documentary evidence.

SPOUSES CALO V. SPOUSES TAN, G.R. NO 151266The absence of a party during trial constitutes waiver of his right to present evidence and cross-examine the opponent's witnesses is firmly supported by jurisprudence. Although a defendant who answered the complaint but fails to appear at the scheduled trial cannot be declared in default, the trial, however, may proceed without his presence. And if the absence of a party during the hearing was due to his own fault, he cannot later on complain that he was deprived of his day in court. The absence of petitioners and their counsel at the aforesaid hearings cannot be justified by their belief that the trial court would first require respondent spouses to comment to or oppose the motions before resolving them. The Rules of Court requires only that the motion be heard; it does not direct the court to order the filing of comments or oppositions to the motion before the motion is resolved. During the hearing on the motion, the opposition to the motion and the arguments of the parties may be ventilated; thereafter, the court may rule on the motion. Petitioners and their counsel should have known the significance of the hearing dates since petitioners themselves chose one of the hearing dates and the hearing dates were accordingly fixed with due notice to all the parties.

3.15Consolidation Test is common questions of fact or of law

ACTIVE V. COURT OF APPEALS, 181 SCRA 774The consolidation of cases becomes mandatory because it involves the same parties and the same subject matter which is the same parcel of land. 8 Such consolidation is desirable to avoid confusion and unnecessary costs and expenses with the multiplicity of suits. Thus the rules do not distinguish between cases filed before the same branch or judge and those that are pending in different branches, or before different judges of the same court,


in order that consolidation may be proper, as long as the cases involve the resolution of questions of law or facts in common with each other. Therefore it appears that the respondent court in denying the motion for consolidation, has sanctioned the departure of the trial court from the usual course of judicial proceedings, thus calling for the exercise of the power of supervision of the Supreme Court. The respondent court has, indeed, committed a reversible error.

SUPERLINES V. VICTOR, 124 SCRA 939There is, however, a more pragmatic solution to the controversy at bar; and that is to consolidate the Gumaca case with the Cavite case. Considerations OF judicial economy and administration, as well as the convenience of the parties for which rules on procedure and venue were formulated, dictate that it is the Cavite court, rather than the Gumaca court, which serves as the more suitable forum for the determination of the rights and obligations of the parties concerned.

STEEL CORP OF THE PHILS V. EQUITABLE PCI BANK, 635 SCRA 403When two or more cases involve the same parties and affect closely related subject matters, they must be consolidated and jointly tried, in order to serve the best interests of the parties and to settle expeditiously the issues involved; purpose of this rule is to avoid multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested dockets, and simplify the work of the trial court. In short, consolidation aims to attain justice with the least expense and vexation to the parties-litigants.

DEUTSCHE BANK AG V. COURT OF APPEALS, 667 SCRA 82For consolidation to be proper, the cases sought to be consolidated must be related.

Jurisprudence has laid down the requisites for consolidation. In the recent case of Steel Corporation of the Philippines v. Equitable PCI Bank, Inc., 20 the Court held that "it is a time-honored principle that when two or more cases involve the same parties and affect closely related subject matters, they must be consolidated and jointly tried, in order to serve the best interests of the parties and to settle expeditiously the issues involved. In other words, consolidation is proper wherever the subject matter involved and relief demanded in the different suits make it expedient for the court to determine all of the issues involved and adjudicate the rights of the parties by hearing the suits together." In the present case, there is no sufficient justification to order the consolidation inasmuch as the Deutsche Bank AG Petition has no relation whatsoever to the Vitarich Petition.

PRODUCERS BANK OF THE PHILS V. EXCELSA INDUSTRIES, 669 SCRA 470

Consolidation. – When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

Rule 31 is completely silent on the effect/s of consolidation on the cases consolidated; on the parties and the causes of action involved; and on the evidence presented in the consolidated cases. The Court declared that the effect of consolidation would greatly depend on the sense in which the consolidation is made. Consolidation of cases may take place in any of the following ways:

(1) Where all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is not actually consolidation but is referred to as such. (quasi-consolidation)

(2) Where several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. This is illustrated by a situation where several actions are pending between the same parties stating claims which might have been set out originally in one complaint. (actual consolidation)

(3) Where several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to the other. (consolidation for trial)

TESTON V. DBP, G.R. NO 144374A court may order several actions pending before it to be tried together where they arise from the same act, event or transaction, involve the same or like issues, and depend largely or substantially on the same evidence, provided that the court has jurisdiction over the cases to be consolidated and that a joint trial will not give one party an undue advantage or prejudice the substantial rights of any of the parties. This is to avoid multiplicity of suits to guard against oppression or abuse, to prevent delays, to clear congested dockets, to simplify the work of the trial court; in short the attainment of justice with the least expense and vexation to the parties litigants. Consolidation of actions is addressed to the sound discretion of the court and its action in consolidating will not be disturbed in the absence of manifest abuse of discretion.

GEGORIO ESPINOZA V. UOB, G.R. NO 175380It is clear that the proceedings for the issuance of a writ of possession should not be consolidated with the case for the declaration of nullity of a foreclosure sale. The glaring difference in the nature of the two militates against their consolidation.

The long-standing rule is that proceedings for the issuance of a writ of possession are ex parte and non-litigious in nature. The only exemption from this rule is Active Wood Products Co., Inc. v. Court of Appeals where the consolidation of the proceedings for the issuance of a writ of possession and nullification of foreclosure proceedings was allowed following the provisions on consolidation in the Rules of Court. However, the


circumstances in this case are substantially distinct from that in Active Wood. Therefore, the exception granted in that case cannot be applied here.

Consolidation of civil and criminal cases Consolidation of cases on appeal

3.16Demurrer to evidence Concept of demurrer Effect of grant or denial of demurrer to evidence

NEPOMUCENO V. COMELEC, 126 SCRA 472Section 1 of Rule 35 of the Rules of Court authorizes a judgment on the merits of the case without the defendant having to submit evidence on his part as he would ordinarily have to do, if it is shown by plaintiff's evidence that the latter is not entitled to the relief sought. The demurrer, therefore, is an aid or instrument for the expeditious termination of an action, similar to a motion to dismiss, which the court or tribunal may either grant or deny.

The requirement of Section 1 of Rule 36 would only apply if the demurrer is granted, for in this event, there would in fact be an adjudication on the merits of the case, leaving nothing more to be done, except perhaps to interpose an appeal. However, a denial of the demurrer is not a final judgment, but merely interlocutory in character as it does not finally dispose of the case, the defendant having yet the right to present his evidence, as provided for under Section 1 of Rule 35 of the Rules of Court.

RADIOWEALTH V. SPOUSES DEL ROSARIO, G.R. NO 138739Defendants who present a demurrer to the plaintiff's evidence retain the right to present their own evidence, if the trial court disagrees with them; if the trial court agrees with them, but on appeal, the appellate court disagrees with both of them and reverses the dismissal order, the defendants lose the right to present their own evidence. The appellate court shall, in addition, resolve the case and render judgment on the merits, inasmuch as a demurrer aims to discourage prolonged litigations.

CASENT REALTY V. PHIL BANKING, G.R. NO 150731A demurrer is an objection by one of the parties in an action, to the effect that the evidence which his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue; what should be resolved in a motion to dismiss based on a demurrer to evidence is whether the plaintiff is entitled to the relief based on the facts and the law.

3.17Judgment on the pleadings Generally applicable when there is no tender of issue Denial in answer may not amount to tender of issue

MANUFACTURERS V. DIVERSIFIED, 173 SCRA 357

When the motion to amend the answer was filed only after two years had lapsed from the date of filing of said answer and after the plaintiff had filed a motion for judgment on the pleading, substantial amendment of the answer is not a matter of right but lies in the discretion of the Court.

PACIFIC REHOUSE CORP V. EIB SECURITIES, 633 SCRA 214Rule 34 of the Rules of Court provides that "where an answer fails to tender an issue or otherwise admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading." Judgment on the pleadings is, therefore, based exclusively upon the allegations appearing in the pleadings of the parties and the annexes, if any, without consideration of any evidence aliunde.

When what is left are not genuinely issues requiring trial but questions concerning the proper interpretation of the provisions of some written contract attached to the pleadings, judgment on the pleadings is proper.

REILO V. SAN JOSE, G.R. NO 166393Where a motion for judgment on the pleadings is filed, the essential question is whether there are issues generated by the pleadings. In a proper case for judgment on the pleadings, there is no ostensible issue at all because of the failure of the defending party's answer to raise an issue. The answer would fail to tender an issue if it does not deny the material allegations in the complaint or admits said material allegations of the adverse party's pleadings by confessing the truthfulness thereof and/or omitting to deal with them at all.

SPOUSES SONG V. ROBAN LENDING, G.R. NO 172592The trial court and the Court of Appeals erred in holding that a summary judgment is proper. A summary judgment is permitted only if there is no genuine issue as to any material fact and a moving party is entitled to a judgment as a matter of law. A summary judgment is proper if, while the pleadings on their face appear to raise issues, the affidavits, depositions, and admissions presented by the moving party show that such issues are not genuine. A genuine issue, as opposed to a fictitious or contrived one, is an issue of fact that requires the presentation of evidence. As mentioned above, petitioners' prayer for accounting requires the presentation of evidence on the issue of partial payment.

But neither is a judgment on the pleadings proper. A judgment on the pleadings may be rendered only when an answer fails to tender an issue or otherwise admits the material allegations of the adverse party's pleadings. In the case at bar, respondent's Answer with Counterclaim disputed petitioners' claims that the Memorandum of Agreement and Dation in Payment are illegal and that the extra charges on the loans are unconscionable. Respondent disputed too petitioners' allegation of bad faith.

DORIS SUNBANUM V. AURORA GO, G.R. NO 163280


Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation, the material facts alleged in the complaint shall always be proved.

The trial court has the discretion to grant a motion for judgment on the pleadings filed by a party if there is no controverted matter in the case after the answer is filed. A judgment on the pleadings is a judgment on the facts as pleaded, and is based exclusively upon the allegations appearing in the pleadings of the parties and the accompanying annexes.

This case is unusual because it was petitioner, and not the claimant respondent, who moved for a judgment on the pleadings during the pre-trial.

Petitioner, in moving for a judgment on the pleadings without offering proof as to the truth of her own allegations and without giving respondent the opportunity to introduce evidence, is deemed to have admitted the material and relevant averments of the complaint, and to rest her motion for judgment based on the pleadings of the parties.

3.18Summary judgments Distinguished from judgment on the pleadings

VERGARA V. SUELTO, 156 SCRA 753Summary judgment must not be confused with judgment on the pleadings. The essential question in determining whether a summary judgment is proper is not whether the answer does controvert the material allegations of the complaint but whether that controversion is bona fides and not whether the answer does tender valid issues as by setting forth specific denials and/or affirmative defenses but whether the issues thus tendered are genuine, or fictitious, sham, characterized by bad faith.

DIMAN V. ALUMBRES, 299 SCRA 459A judgment on the pleadings is a judgment on the facts as pleaded, while a summary judgment is a judgment on the facts as summarily proven by affidavits, depositions or admissions. Another distinction is that while the remedy of a judgment on the pleadings may be sought only by a claimant (one seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief, supra), a summary judgment may be applied for by either a claimant or a defending party.

NOCOM V. CAMERINO, G.R. NO 182984Summary judgment is a procedural device resorted to in order to avoid long drawn out litigations and useless delays. When the pleadings on file show that there are no genuine issues of fact to be tried, the Rules allow a party to obtain immediate relief by way of summary judgment, that is, when the

facts are not in dispute, the court is allowed to decide the case summarily by applying the law to the material facts. Conversely, where the pleadings tender a genuine issue, summary judgment is not proper. A "genuine issue" is such issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious, contrived or false claim. Section 3 of the said rule provides two (2) requisites for summary judgment to be proper: (1) there must be no genuine issue as to any material fact, except for the amount of damages; and (2) the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law. 5 A summary judgment is permitted only if there is no genuine issue as to any material fact and a moving party is entitled to a judgment as a matter of law. A summary judgment is proper if, while the pleadings on their face appear to raise issues, the affidavits, depositions, and admissions presented by the moving party show that such issues are not genuine.

How motion for summary judgment is considered- Hearing on motion is only for determining whether

issues are genuine or not, not to receive evidence on the issues set up in the pleadings

- Motion is proven through affidavits, depositions, and admissions submitted by movant

Propriety of summary judgment

NATALIA V. VALLEZ, 173 SCRA 536 It is settled that a summary judgment under Rule 34 of the Rules of Court is proper only if there is no genuine issue as to the existence of any material fact. It is intended to expedite or promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record.

GRAND FARMS V. COURT OF APPEALS, 193 SCRA 748The Rules of Court authorize the rendition of a summary judgment if the pleadings, depositions and admissions on file, together with the affidavits, show that, except as to the amount of damages, there is no issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. 10 Although an issue may be raised formally by the pleadings but there is no genuine issue of fact, and all the facts are within the judicial knowledge of the court, summary judgment may be grantedThe real test of a motion for summary judgment is whether the pleadings, affidavits and exhibits in support of the motion are sufficient to overcome the opposing papers and to justify a finding as a matter of law that there is no defense to the action or that the claim is clearly meritorious.

MONTEREY FOODS CORP V. ESERJOSE, 410 SCRA 627A summary judgment or accelerated judgment is a procedural technique to promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record, or for weeding out sham claims or defenses at an early stage of the litigation to avoid the expense and loss of time involved in a trial. Its object is to separate what is formal or pretended in denial or averment from what is genuine and substantial so that only the latter may subject a party in


interest to the burden of trial. Moreover, said summary judgment must be premised on the absence of any other triable genuine issues of fact. Otherwise, the movant cannot be allowed to obtain immediate relief. A "genuine issue" is such issue of fact which requires presentation of evidence as distinguished from a sham, fictitious, contrived or false claim.

Rule 35, Section 3 of the Rules of Court provides two (2) requisites for summary judgment to be proper: (1) there must be no genuine issue as to any material fact, except for the amount of damages; and (2) the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law.

Clearly, the judgment finally disposed of all the reliefs sought in the complaint. The order granting summary judgment was akin to a judgment on the merits made after a full-blown trial. Its consequent execution, therefore, may issue as a matter of right in favor of respondent unless appeal was seasonably made therein, which petitioners failed to do. Instead of filing a notice of appeal with the trial court, petitioners elevated the matter to the Court of Appeals via petition for certiorari under Rule 65 of the Rules of Court, which is not a substitute for the lost remedy of appeal.

The concept of a final judgment or order, distinguished from an interlocutory issuance, is that the former decisively puts to a close, or disposes of a case or a disputed issue leaving nothing else to be done by the court in respect thereto. Once that judgment or order is rendered, the adjudicative task of the court is likewise ended on the particular matter involved. An order is interlocutory, upon the other hand, if its effects would only be provisional in character and would still leave substantial proceedings to be further had by the issuing court in order to put the controversy to rest.

EVANGELISTA V. MERCATOR FINANCE, 409 SCRA 410Summary judgment "is a procedural technique aimed at weeding out sham claims or defenses at an early stage of the litigation." The crucial question in a motion for summary judgment is whether the issues raised in the pleadings are genuine or fictitious, as shown by affidavits, depositions or admissions accompanying the motion. A genuine issue means "an issue of fact which calls for the presentation of evidence, as distinguished from an issue which is fictitious or contrived so as not to constitute a genuine issue for trial." To forestall summary judgment, it is essential for the non-moving party to confirm the existence of genuine issues where he has substantial, plausible and fairly arguable defense, i.e., issues of fact calling for the presentation of evidence upon which a reasonable finding of fact could return a verdict for the non-moving party. The proper inquiry would therefore be whether the affirmative defenses offered by petitioners constitute genuine issue of fact requiring a full-blown trial.

CAB: There are no genuine issues raised by petitioners. Petitioners do not deny that they obtained a loan from Mercator. They merely claim that they got the loan as officers of Embassy Farms without intending to personally

bind themselves or their property. However, a simple perusal of the promissory note and the continuing suretyship agreement shows otherwise. These documentary evidence prove that petitioners are solidary obligors with Embassy Farms.

Movant may be either party

3.19Judgments Requirements

- Written and signed by the judge- Must contain findings of facts and law applied- Must contain a dispositive portion - Filed with clerk of court

Rendition reckoned from filing with clerk Must be served on parties May be amended before finality upon motion or motu proprio Entry upon finality

Entry determines prescriptive periods Final judgment not subject to amendment Separability of judgments

VELARDE V. SOCIAL JUSTICE SOCIETY, G.R. NO 159357The decision shall be in writing, personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by the issuing magistrate, and filed with the clerk of court. In general, the essential parts of a good decision consist of the following: (1) statement of the case; (2) statement of facts; (3) issues or assignment of errors; (4) court ruling, in hiwch issue is, as a rule, separately considered and resolved, and; (5) dispositive portion. The ponente may also opt to include an introduction or a prologue as well as an epilogue, especially in cases in which controversial or novel issues are involved.

MIRANDA V. COURT OF APPEALS, 71 SCRA 295A judge who succeeds another as presiding judge does not assume reviewing and appellate authority over his predecessor's judgment on the merits including the credibility of the witnesses. The successor judge (prescinding from the principle of comity of judges), should be equally if not more bound by the settled doctrine binding upon appellate courts that the judge's findings of fact and on the credibility of witnesses are entered to great weight and respect and will be upheld in the absence of a clear and convincing showing of taint, mistake or arbitrariness.

The cause of an impersonal and orderly administration of justice and system of adjudication of court litigation would be greatly if not irreparably set back if parties are subjected to the spectacle on one judge's judgment being radically altered, if not reversed, by his successor after four years without any new trial or evidence simply because the successor reads the record in another light than his predecessor who tried the case and chooses to believe witnesses disbelieved by his predecessor. The ideal concept that cases are impersonally tried and adjudicated on the basis of certain well


defined rules of evidence, law and jurisprudence (regardless of the personality of the judge and his predilections) subject to review only by the higher appellate courts which would pass upon and correct the errors, if any, of the trial judge, would thus be dealt a severe blow.

Where a judgment has terminated the action with respect to the claim for recovery of the properties pertaining to the decedent's estate, and the action is yet to proceed with respect to the remaining relief of accounting as ordered in the judgment, the trial judge is authorized by Rule 36, Section 5 in so far as the judgment granting the claim for recovery of properties is concerned, to stay enforcement until the rendering of the subsequent judgment on the accounting or prescribe such conditions to secure the benefit in favor of the estate represented by the petitioner. But the rule grants him no authority to review, revise, amend, alter or reverse his predecessor's original judgment on the merits ordering the delivery of the properties while awaiting completion of the accounting.

Rule 59, Section 4 recognizes that in actions involving the rendition of an accounting, an appeal may be taken from the judgment ordering the accounting and directs that during the pendency of the appeal, or even before the appeal is taken, the rendition of the accounting shall not be stayed, unless otherwise ordered by the trial court. Thus, if the judgment directing an accounting is upheld on appeal, there would be no time lost and the accounting as rendered could be passed upon by the trial court at the stage of execution of judgment; and if the judgment were reversed on appeal, reimbursement of the actual expenses incurred by the successful appellant in rendering the accounting could be awarded.

REPUBLIC V. NOLASCO, 457 SCRA 400The multiple reliefs referred to Section 5, Rule 36 of the Rules of Civil Procedure, which governs separate judgments, refer to those sufficiently segregate from each other that the allowance of one at a preliminary stage will not preclude litigation on the merits of the others. More importantly, the rule is explicit that partial judgment with regards one of the reliefs is warranted only after "a determination of the issues material to a particular claim and all counterclaims arising out of the transaction or occurrence which is the subject matter of the claim."

BRIONES-VASQUEZ V. COURT OF APPEALS, G.R. NO 144882As a general rule, therefore, final and executory judgments are immutable and unalterable except under the three exceptions named above: a) clerical errors; b) nunc pro tunc entries which cause no prejudice to any party; and c) void judgments. In the present case, petitioner claims the second exception, i.e., that her motion for clarificatory judgment is for the purpose of obtaining a nunc pro tunc amendment of the final and executory Decision of the Court of Appeals. Nunc pro tunc judgments have been defined and characterized by this Court in the following manner: The office of a judgment nunc pro tunc is to record some act of the court done at a former time which was not then carried into the record, and the power of a court to make such entries is restricted to placing upon the record evidence

of judicial action which has been actually taken. It may be used to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. If the court has not rendered a judgment that it might or should have rendered, or if it has rendered an imperfect or improper judgment, it has no power to remedy these errors or omissions by ordering the entry nunc pro tunc of a proper judgment. Hence a court in entering a judgment nunc pro tunc has no power to construe what the judgment means, but only to enter of record such judgment as had been formerly rendered, but which had not been entered of record as rendered. In all cases the exercise of the power to enter judgments nunc pro tunc presupposes the actual rendition of a judgment, and a mere right to a judgment will not furnish the basis for such an entry. The object of a judgment nunc pro tunc is not the rendering of a new judgment and the ascertainment and determination of new rights, but is one placing in proper form on the record, the judgment that had been previously rendered, to make it speak the truth, so as to make it show what the judicial action really was, not to correct judicial errors, such as to render a judgment which the court ought to have rendered, in place of the one it did erroneously render, nor to supply nonaction by the court, however erroneous the judgment may have been. A nunc pro tunc entry in practice is an entry made now of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of action really had, but omitted through inadvertence or mistake. It is competent for the court to make an entry nunc pro tunc after the term at which the transaction occurred, even though the rights of third persons may be affected. But entries nunc pro tunc will not be ordered except where this can be done without injustice to either party, and as a nunc pro tunc order is to supply on the record something which has actually occurred, it cannot supply omitted action by the court.

NAVARRO V. METROBANK, G.R. NO 165697No other procedural law principle is indeed more settled than that once a judgment becomes final, it is no longer subject to change, revision, amendment or reversal, except only for correction of clerical errors, or the making of nunc pro tunc entries which cause no prejudice to any party, or where the judgment itself is void. The underlying reason for the rule is two-fold: (1) to avoid delay in the administration of justice and thus make orderly the discharge of judicial business, and (2) to put judicial controversies to an end, at the risk of occasional errors, inasmuch as controversies cannot be allowed to drag on indefinitely and the rights and obligations of every litigant must not hang in suspense for an indefinite period of time.

3.20Remedies from judgments (same court, same case) New trial or Reconsideration

- FAMEN o Fraud as a ground must be extrinsic, not

intrinsic. It is intrinsic when done by a party during trial (use of forged documents, etc.);


extrinsic when employed outside the court (concealing a witness or colluding with a party)

o Acciden and mistake as a ground must be based on well-engendered belief ordinary prudence could not guard against

o Excusable negligence as a ground will depend on circumstances

- Newly discovered evidence o Must be material and not discoverable during

trial

BANCO FILIPINO V. CAMPOS, 63 SCRA 180Rule 37, Sec. 1, par. b of the Rules of Court provides for the grant of new trial based on: "newly discovered evidence, which he could not, with reasonable diligence, have discovered, and produced at the trial, and which if presented would probably alter the result." Its requisites are: (1) that such evidence has been discovered after the trial; (2) that even with the exercise of reasonable diligence, it could not have been discovered and produced at the trial; and (3) that such evidence is of such a nature as to alter the result of the case if admitted.

Motion for reconsideration - New trial distinguished from reconsideration

o Grounds o Results when granted o Remedy when denied (appeal from the

judgment) Relief from judgment

- Not available for lost remedy

TUAZON V. COURT OF APPEALS, 256 SCRA 158Relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which had been lost thru inexcusable negligence.

A petition for relief from judgment is an equitable remedy; it is allowed only in exception cases where there is no other available or adequate remedy. When a party has another remedy 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 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 petition. Indeed, relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which had been lost thru inexcusable negligence.

SPOUSES QUE V. COURT OF APPEALS, G.R. NO 1507397Under Rule 38, Sec 1, the court may grant relief from judgment only “when a judgment or final order is entered, or any other proceeding is taken against a party in any court through fraud, accident, mistake, or excusable negligence. As used in that provision, "mistake" refers to mistake of fact, not of law, which relates to the case. "Fraud," on the other hand, must be extrinsic or collateral, that is, the kind which prevented the aggrieved party from having a trial or presenting his case to the court.

MONZON V. SPOUSES RELOVA, G.R. NO 171827 In PNB v. de Leon, the Court declared that orders of default have the effect of denying a litigant a chance to be heard, increasing needless litigation in the appellate court. “While there are instances when a party may be properly defaulted, these should be the exception rather than the rule, and should be allowed only in clear cases of obstinate refusal or inordinate neglect to comply with the orders of the court.”

It is even worse when the court issues an order not denominated as an order of default, but provides for the application of effects of default. Such amounts to the circumvention of the rigid requirements of a default order, to wit: (1) the court must have validly acquired jurisdiction over the person of the defendant; (2) the defendant failed to timely file his answer; and (3) there must be a motion to declare the defendant in default with notice to the latter.

- Available only versus final judgment - Distinguished from New trial or Reconsideration

o Groundso When/how invokedo Result when grantedo Remedy when denied (no more appeal)

Annulment of judgment (not same court, not same case)

DARE ADVENTURE FARM CORP V. COURT OF APPEALS, 681 SCRA 580

A petition for annulment of judgment is a remedy in equity so exceptional in nature that it may be availed of only when other remedies are wanting, and only if the judgment, final order or final resolution sought to be annulled was rendered by a court lacking jurisdiction or through extrinsic fraud. Yet, the remedy, being exceptional in character, is not allowed to be so easily and readily abused by parties aggrieved by the final judgments, orders or resolutions. The Court has thus instituted safeguards by limiting the grounds for the annulment to lack of jurisdiction and extrinsic fraud, and by prescribing in Section 1 of Rule 47 of the Rules of Court that the petitioner should show that the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner. A petition for annulment that ignores or disregards any of the safeguards cannot prosper.


Section 1 of Rule 47 extends the remedy of annulment only to a party in whose favor the remedies of new trial, reconsideration, appeal, and petition for relief from judgment are no longer available through no fault of said party. As such, the petitioner, being a non-party in Civil Case No. MAN-2838, could not bring the action for annulment of judgment due to unavailability to it of the remedies of new trial, reconsideration, appeal, or setting the judgment aside through a petition for relief.

SPOUSES ARENAS V. QUEZON CITY DEVT BANK, GR. NO 166819Section 1, Rule 47 provides that it does not allow a direct recourse to a petition for annulment of judgment if other appropriate remedies are available, such as a petition for new trial, appeal or a petition for relief. 17 If petitioner fails to avail of these remedies without sufficient justification, she cannot resort to the action for annulment of judgment under Rule 47, for otherwise, she would benefit from her inaction or negligence.

VDA DE CRUZO V. CARIAGA, 174 SCRA 330 (1989)FACTS: Appeal from the order of the RTC dismissing petitioners’ complaint for conventional redemption and damages against respondents on the basis of res judicata.

1. Petitioners are heirs of Gabina Machoca. In Feb 1954, Gabina mortgaged a parcel of land for P425 and delivered the title of the same to private respondent Ang (PR).

2. On Oct 4 1954, Gabina borrowed an additional P175 from PR. On the same date, petitioners claim that PR caused the execution of a deed of sale covering the mortgaged property.

3. Being illiterate, Gabina affixed her thumbmark on the deed believing that the instrument is a deed of mortgage covering the additional P175 loan. The following day, Gabina demanded from PR the reformation of the deed of sale upon advice of her children.

4. PR, instead executed a deed for conventional redemption which provides that PR “grants and obligates himself to resell the property therein sold within a period of three (3) years from and after the date of the said instrument, for the same price of SIX HUNDRED PESOS (P600.00), Philippine Currency, to the said VENDOR: PROVIDED, however, That if the Vendor shall fail to exercise her right to redeem as herein granted within the stipulated period, then this conveyance shall be deemed to be absolute and irrevocable.”

5. In June 1995, 2 years premature of the expiration of Gabina’s right to redeem, PR registered the deed and title was transferred to his name. In June 1963, PR sold the lot to Suarez. Suarez filed an

action for ejectment against petitioners which the trial court decided in his favor. Petitioners appealed to the CA but the same was dismissed. Such dismissal became final and executory.

6. During the pendency of the ejectment case, petitioners filed separate actions – petition for prohibition to restrain the presiding judge in the ejectment case from proceeding in the case; action for quieting of title/conveyance; and action for conventional redemption with damages – against PR before different branches of the RTC. The action for quieting of title was dismissed for failure to prosecute.

ISSUE: WON the action for conventional redemption is already barred by the order of dismissal rendered in the action for quieting of title.

HELD: Yes. There is no question that the order of dismissal rendered in the prior action, action for quieting of title, had become final for failure of herein petitioners to appeal the same after their motions for reconsideration were denied. Furthermore, while the dismissal was for failure to prosecute, it had the effect of an adjudication on the merits, and operates as res judicata, since the court did not direct that the dismissal was without prejudice. The inescapable conclusion is that the parties are in effect litigating for the same thing and seeking the same relief, that is, to recover possession and ownership of subject property. It is of no moment that the later remedy is for conventional redemption while the former case was for removal of clouds on the title, since both actions are anchored on exactly the same cause of action, are based on identical facts, and even claim the same relief.

REMEDIAL LAW; ACTIONS; RES JUDICATA; CONCEPTS. — The doctrine of res judicata thus lays down two main rules which may be stated as follows: (1) The judgment or decree of a court of competent jurisdiction on the merits concludes the parties and their privies to the litigation and constitutes a bar to a new action or suit involving the same cause of action either before the same or any other tribunal; and (2) Any right, fact, or matter in issue directly adjudicated or necessarily involved in the determination of an action before a competent court in which a judgment or decree is rendered on the merits is conclusively settled by the judgment therein and cannot again be litigated between the parties and their privies whether or not the claim or demand, purpose, or subject matter of the two suits is the same.

2. ID.; ID.; ID.; ID.; BAR OF FORMER JUDGMENT, CONSTRUED. — When we speak of res judicata in its concept as a "bar by former judgment," the judgment rendered in the first case is an absolute bar to the subsequent action since said judgment is conclusive not only as to the matters offered and received to sustain that judgment but also as to any other matter which might have been offered for that purpose and which could have been adjudged therein. This is the concept in which the term res judicata is more commonly and generally used and in which it is


understood as the bar by prior judgment constituting a ground for a motion to dismiss in civil cases.

3. ID.; ID.; ID.; ID.; CONCLUSIVENESS OF JUDGMENT, CONSTRUED. — Res judicata as a rule on conclusiveness of judgment refers to the situation where the judgment in the prior action operates as an estoppel only as to the matters actually determined therein or which were necessarily included therein. Consequently, since other admissible and relevant matters which the parties in the second action could properly offer are not concluded by the said judgment, the same is not a bar to or a ground for dismissal of the second action.

4. ID.; ID.; ID.; ID.; FUNDAMENTAL DIFFERENCE. — The fundamental difference between the rule of res judicata as a bar by former judgment and as merely a rule on the conclusiveness of judgment is that, in the first, there is an identity in the cause of action in both cases involved whereas, in the second, the cause of action in the first case is different from that in the second case.

5. ID.; ID.; ID.; BAR BY PRIOR JUDGMENT; REQUISITES. — The following requisites must concur in order that a prior judgment may bar a subsequent action, viz: (1) the former judgment or order must be final; (2) it must be a judgment or order on the merits, that is, it was rendered after a consideration of the evidence or stipulations submitted by the parties at the trial of the case; (3) it must have been rendered by a court having jurisdiction over the subject matter and the parties; and (4) there must be, between the first and second actions, identity of parties, of subject matter and of cause of action.

6. ID.; ID.; ID.; DISMISSAL FOR FAILURE TO PROSECUTE. — Where the dismissal was for failure to prosecute, it had the effect of an adjudication on the merits, and operates as res judicata, since the court did not direct that the dismissal was without prejudice.

7. ID.; ID.; CAUSE OF ACTION, DEFINED. — It is elementary that, in adjective law, a cause of action is the delict or the wrongful act or omission committed by the defendant in violation of the primary rights of the plaintiff.

8. ID.; ID.; RULE AGAINST MULTIPLICITY OF SUITS. — 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.

9. ID.; ID.; CAUSE OF ACTION; TEST TO DETERMINE WHETHER CAUSES OF ACTION WARRANT THE APPLICATION OF THE RULE OF RES JUDICATA. — In determining whether causes of action are identical so as to warrant application of the rule of res judicata, the test most commonly stated is to ascertain whether the same evidence which is necessary to sustain the second action would have been sufficient to authorize a

recovery in the first, even if the forms or nature of the two actions be different. If the same facts or evidence would sustain both, the two actions are considered the same within the rule that the judgment in the former is a bar to the subsequent action; otherwise it is not. It has been said that this method is the best and most accurate test as to whether a former judgment is a bar in subsequent proceedings between the same parties, and it has even been designated as infallible.

12. REMEDIAL LAW; ACTIONS; LACHES; CONSTRUED. — Laches, in a general sense, is 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 time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it.

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